Overview

Never afraid of putting spin before substance, some Australian State governments have pre-empted the outcomes of the NHMRC review and responded to the anti-wind farm constituency by changing planning regimes to introduce 2km separation distances between turbines and dwellings. None of these governments have presented an empirical analysis which justifies or explains the otherwise arbitrary selection of 2km

The nature of these reforms are summarised in the table below and discussed in further detail in this newsletter.

Click here to view table.

Australian regulatory responses 

Victoria

In Victoria, the use and development of land is regulated by the Planning & Environment Act 1987 (Vic) and municipal planning schemes. Planning schemes designate land uses into three categories – permissible or ‘as of right’ land uses, prohibited land uses, or land uses that require a planning permit. Planning permits are issued by the ‘responsible authority’, which for wind farms is the local municipal council.

In 2010, the newly elected Victorian Government enacted its election wind farm policy through Amendments VC78 and VC82 to the Victoria Planning Provisions (the Amendments).

The Amendments introduced a host of changes to planning policy for the assessment of new wind farm proposals, particularly relating to landscape and noise impact assessment. However, the most contentious and important of these changes was the prohibition of wind farms if turbines were located within 2km of a dwelling. The only way a wind farm proponent can circumvent this prohibition is to procure the consent of the dwelling owner before lodging the planning permit application.1

This is by far the most draconian planning regime for wind farms in Australia, as it gives dwelling owners a right of veto over wind farm proposals irrespective of their planning merits, or whether they comply with the performance criteria embedded within the Victoria Planning Provisions and municipal planning schemes.

The Amendments also include blanket prohibitions on wind farms within certain municipalities recognised for their tourist qualities, such as the Mornington Peninsula and Yarra Valley,2 and a five kilometre setback between wind turbines and certain zones of major regional towns including Portland, Ararat and Bendigo.3

Not surprisingly, the introduction of these reforms has put a break on the number of permit applications which have been lodged for wind farms. Nevertheless, the indications are that the industry is doing its best to adapt to the new regulatory environment through attempting to negotiate agreements with dwelling owners.

It is understood that further reforms may be in the pipeline. One of the key changes brought about by Amendment VC78 was a requirement that predicted noise emissions from wind farm proposals be assessed against and comply with NZS6808:2010: Acoustics – Wind Farm Noise. In very simple terms, this Standard requires wind farm proposals to meet a noise level of 40dBA or 5dBA above background noise, whichever is higher. This in itself is not contentious, as these are the same noise levels that had applied before Amendment C78 came into force. However, the 2010 Standard also provides that a lower 35dBA noise level must be achieved in ‘high amenity areas’. It is understood the Victorian Government is considering methodologies to implement these high amenity area recommendations, as well as tools for assessing and monitoring special audible characteristics, such as tonality and amplitude modulation. If the Government proceeds with these reforms, then they will have a very significant bearing on future wind farm proposals in Victoria.

NSW

All developments in New South Wales (NSW), including wind farms, are assessed under the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act). Wind farms are typically State significant development which require development consent under the EP&A Act.

Unlike Victoria, NSW has not yet introduced a State wide environmental planning instrument which imposes a separation distance requirement for wind farms. However, some local Councils have adopted development control plans which contain separation distance  requirements. The NSW Land and Environment Court (Court) recently refused to uphold one such development control plan which sought to impose a 2km separation distance for wind farms.4 The Court held that the 2km separation distance was arbitrary in circumstances where the local council had failed to establish a logical basis for the numerical control. Accordingly, the Court did not apply the 2km separation distance and instead based its assessment of the wind farm on the merits of the particular proposal, including the orientation of dwellings and ‘assessment of the impacts on specified properties having regard to topography’.

In December 2011 the NSW Government released its draft Planning Guidelines – Wind Farms (the Draft Guidelines). The Draft Guidelines have been described by the NSW Minister for Infrastructure and Planning as ‘the strictest guidelines that exist in Australia’.5 In particular, the Draft Guidelines propose a new ‘gateway’ requirement which will:

  • apply to all new wind farms where the proponent is unable to obtain the written consent from the owner of all existing residences in a 2km radius; and
  • require the proponents of such wind farms to apply for and obtain a Site Compatibility Certificate before an application for development consent may be lodged.6

It is proposed that applications for Site Compatibility Certificates will be publicly exhibited and that any person may make a submission in relation to the application. The application will then be assessed based on an initial consideration of noise and visual amenity impacts on residences within 2km.7 If a Site Compatibility Certificate is refused, then an application for development consent for the wind farm cannot be lodged as proposed unless the owners of all residences within 2km are prepared to consent. Unlike the Victorian approach, the Draft Guidelines allow some discretion for a merits assessment of the project even where non-participating landowners within 2km do not provide their consent. In Victoria, a failure to obtain consent of those same landowners would automatically prohibit the proponent from lodging a planning permit application for the wind farm. 

However, the Draft Guidelines are yet to be finalised or enshrined in an environmental planning instrument and it is now unclear as to whether the proposed gateway process will be adopted. Recent reports indicate that the position of the NSW Government may have changed with the Government reportedly pledging to triple wind and solar power in NSW in September 2012.8

South Australia

The most recent wind farm planning reform has been introduced in South Australia, where the Minister for Planning approved the Statewide Wind Farm Development Plan Amendment (Wind Farm DPA)in October 2012. The central component of the Wind Farm DPA is the treatment of wind farms as either Category 2 or Category 3 development under the Development Act 1993 (SA) (Development Act), depending on the proximity of the proposed wind turbines to dwellings, tourist accommodation and certain Development Plan zones.

Wind farm proposals will be treated as Category 2 Development where wind turbines are to be located 2km from:

  • non-associated existing dwellings or tourist accommodation; 
  • proposed dwellings or tourist accommodation which have an existing development consent; and
  • the boundaries of certain zones and areas designated in the relevant Development Plan, including Residential, Mixed Use and Township Zones.

This Category 2 classification means that the wind farm proponent would only be required to notify adjacent landowners and occupiers, and there would no third party right of appeal to the Environment, Resources and Development Court to challenge the grant of the development consent on its planning merits. Conversely, where wind turbines are proposed within 2km of these land uses or zones, the wind farm will be treated as a Category 3 development. The consequence of this designation is that the application for development consent would be required to comply with public notice requirements of the Development Act, and the grant of the development consent would be vulnerable to third party appeals. 

Conclusion

Despite the lack of any empirical or scientific basis for 2km separation distances, the planning reforms introduced by the South Australian and NSW governments at least provide an opportunity for the planning merits of good projects to be independently assessed and determined. By contrast, the Victorian abrogation of decision-making responsibilities for wind farm projects from planning authorities to neighbouring property owners is unprecedented, undermines decades of bilateral support for performance-based impact assessment in planning, and it is to be hoped does not constitute ‘the thin edge of the wedge’ for other types of land uses and projects where hard planning decisions are sometimes required to be made.

The wind energy is nevertheless learning to adapt to this complex and increasingly hostile regulatory environment in parts of Australia, where planning policy has been driven by populist sentiment rather than science.