Australia: Proposed wind farm guidelines for NSW

Key Points:

Draft planning guidelines for wind farms in NSW could make approval processes more complex and time-consuming, set possibly the world's strictest noise standards, and limit opportunities for placing wind turbines within 2km of a residence.

The NSW Government released draft Planning Guidelines for Wind Farms shortly before Christmas, proposing significant requirements for wind farm approval processes and operations. If the Government adopts them:

• approval processes could become more complex and time-consuming,
• new noise standards, which are possibly the strictest for wind farms in the world, would apply; and
• wind turbines could not be located within 2km of a residence unless the relevant land-owner consents or the proponent obtains a site compatibility certificate.

The draft Guidelines are expected to apply to all new wind farm proposals, and (to the extent possible) to proposals which are currently being assessed. The Government will also discuss with wind farm operators the possibility of applying parts of the Guidelines to existing wind farms.

The Government is calling for submissions on the draft Guidelines until 14 March.

We have outlined below some key features of the draft Guidelines.

Planning framework for wind farms

The permissibility of a wind farm will be determined initially by the zoning of the land on which it is proposed. If a wind farm is permissible, the development assessment and approval process which applies to it will depend on its capital investment value, as indicated in the following table in the draft Guidelines:

* Proposals in an environmentally sensitive area with a capital investment value of $10 million or more will be SSI.

Most of the requirements in the draft Guidelines assume the proposal to which they apply will be State significant development (SSD). An environmental impact statement (EIS) must be prepared with the development application (DA) for an SSD proposal, and the EIS cannot be prepared until the proponent has obtained EIS requirements (known as DGRs) from the Director-General of the Department of Planning and Infrastructure (DP&I).

The Government has suggested that local councils and Joint Regional Planning Panels (JRPPs) "may choose to use the guidelines as a resource" when assessing wind farm proposals which are not SSD.

Proximity to existing residences

If a wind farm proposal places turbines within 2km of existing residences, the draft Guidelines require the proponent to obtain either the consent of all owners of the land on which the residences lie or a site compatibility certificate (SCC) from the JRPP for the area in which the proposal is located before the proponent lodges a DA.

The process for obtaining an SCC is called a "Gateway" process. The draft Guidelines propose that:

• the application for an SCC be made to DP&I and must include (among other things) noise predictions and photomotages for relevant residences,
• DP&I will put the application on its website, notify the relevant council and landowners, and invite comment within 21 days,
• DP&I will prepare recommendations to the JRPP on the application,
• the JRPP will consider the DP&I recommendations and may hold a public meeting,
• DP&I and/or the JRPP may seek independent expert advice on the application as part of its role, and
• the JRPP will then determine the application.

The requirement for land-owner consent within a 2km zone reflects the requirement which the Victorian Government adopted in its August 2011 requirements for wind farm proposals. However, the Victorian requirements do not provide an alternative to land owner consent as the draft Guidelines do (in the form of an SCC).

Nevertheless, the requirement that the land-owner's consent or an SCC be obtained before a DA is lodged could add significantly to the approval time-frames for wind farm projects.

Tough noise controls

The draft Guidelines incorporate noise guidelines, which include a statement that the predicted 10 minute interval noise level for a new wind farm should not exceed 35 decibels or 5 decibels above the existing background noise (whichever is greater).

While other variables (such as measurement location) will be important, the draft Guidelines describe their criteria as "the most stringent in Australia and amongst the most stringent in the world".

The draft Guidelines also say that they "propose to strengthen the regulation of noise from wind farms under the Protection of the Environment Operations Act 1997, with the EPA having a regulatory role in relation to wind farms". While this is not something the Guidelines could do themselves, the statement suggests that the Government might introduce an EPA licensing requirement for wind farms.

Community consultation

The draft Guidelines indicate that the public consultation period for a wind farm DA will be at least 60 days, which is double the statutory minimum of 30 days. In addition, the draft Guidelines require that proponents establish a community consultation committee during the planning approval process.

Other issues

The draft Guidelines deal with other environmental assessment and operational issues such as assessment of visual amenity and health impacts (where the draft Guidelines say a "precautionary approach" is adopted), requirements for a decommissioning and rehabilitation plan, and auditing and compliance measures.

Responses to date

The Greens and some clean energy groups have responded unfavourably to the draft Guidelines. The Clean Energy Council initially expressed confidence that many wind farm operators could comply with the draft Guidelines, but said it would need to review the draft in more detail. The Government has emphasised that it remains committed to the target of 20% of the State's energy coming from renewable sources, most of which is expected to be wind power.

The draft Guidelines provide the first comprehensive assessment framework for wind farms in NSW, but their terms are likely to produce strong debate before they are adopted.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.