Queensland’s first wind farm planning code came into effect on 22 July 2016, after two rounds of public consultation and more than 160 submissions.
The Wind Farm State Code (Code) is intended to facilitate an increase in the production and use of renewable and sustainable energy, and contribute to reaching a target of 50 per cent renewable energy by 2030. It aims to encourage quality renewable energy outcomes whilst protecting the environment and communities from adverse impacts of wind farm development.
The Code regulates the development of new wind farms, as well as the expansion, operation and decommissioning of existing wind farm infrastructure. It is intended to produce consistent planning outcomes for the assessment of wind turbine applications.
How the Code impacts wind farm applicants
Applications for material change of use of land for wind turbine developments will be assessed by the Chief Executive acting through the State Assessment and Referral Agency (SARA), rather than by local governments or other assessment managers. In assessing applications, SARA must consider the matters called up by the Code.
The Code calls up various assessment criteria which include:
- Noise: applicants are required to prepare and submit a noise assessment, demonstrating that noise emissions from the wind farm will not result in unacceptable levels of noise. Noise levels at neighbouring sensitive land uses (including dwelling houses, child care centres, hotels, retirement facilities and rural workers’ accommodation) must not exceed 35 decibels at night and 37 decibels during the day – which is more conservative than similar guidelines in some other states. Applicants must also provide compliance reports after the wind farm has commenced operation.
- Aviation safety: wind turbines less than 150m high must not infringe particular airspaces. Wind turbines more than 150m high require written endorsement from the Civil Aviation Safety Authority and Airservices Australia. Written endorsement from the Department of Defence is also required if the turbine is proposed to be located within 30km of a military aerodrome. Applicants should also be aware of marking and lighting measures.
- Shadow flicker: the flickering shadow caused by moving blades of the wind turbine must not impact sensitive land uses for more than 30 hours per year and 30 minutes per day. Turbine blades must have a low reflectivity finish.
- Traffic safety: development must provide suitable vehicle access, manoeuvring areas and parking for ongoing operation and maintenance activities.
- Construction management: construction related to wind farm development must avoid, or minimise and mitigate, adverse impacts on the environment, water quality, amenity, local transport networks and road infrastructure.
The Code also includes general provisions requiring wind farm development to minimise impacts on pre-existing television, radar and radio transmission and reception, the character and scenic amenity of the locality and flora and fauna (e.g. bird strikes).
A wind farm application for material change of use will be subject to code assessment if one of the following applies:
- all turbines are at least 1500m from sensitive land uses (not including sensitive land uses on a lot that is part of the wind farm);
- one or more turbines are less than 1500m from a sensitive land use and the owner of that neighbouring land has agreed to a lower setback.
In any other circumstance, a wind farm application will be subject to impact assessment.
Whilst the Code applies to development that is for a material change of use, it does not apply to other aspects of development (e.g. reconfiguring a lot and operational work). The Code also does not apply to smaller turbines that are used for domestic or rural use.
How the Code applies to affected neighbours
The Code requires wind farms to be located at least 1500m from sensitive land uses. An application proposing to develop wind turbines within this separation distance must be publicly notified (i.e. subject to impact assessment), giving affected parties an opportunity to make a submission, attracting subsequent appeal rights.
In addition, neighbouring lot owners can enter into a written agreement, called a deed of release, with the wind farm operator accepting a reduced setback. Neighbours can also agree to a higher acceptable noise level.
What does this mean for local governments?
As a consequence of changes to the Planning Regulation, local governments:
- cannot make a material change of use for a wind farm assessable development against their planning scheme; and
- cannot make building work for a wind farm assessable against their planning scheme.
Further, the changes to the Planning Regulation do not give local governments any referral agency role.
Any local government concerns about proposed wind turbine developments ought be raised in a submission to the Chief Executive (with subsequent appeal rights) if the application is impact assessable. Councils will have little input in code assessable applications.
However, local governments are still the assessment manager for any reconfiguring a lot or operational work applications associated with wind turbine developments. Such applications are typically required to address issues such as prescribed minimum lot sizes, as wind farm sites are usually located in rural areas, but wind farm projects can require an unusual pattern of land subdivision (e.g. through a combination of easements and leases exceeding a term of 10 years, including options).
As noted above, the Code does not apply to smaller turbines that are used for domestic or rural use. Those applications may still be assessable under the relevant local government planning scheme. However, in our experience, few local governments make provision for wind turbines in their planning scheme.
The author wishes to acknowledge Law Graduate Claire McHardy for her contributions to this article.