The Business Solar and wind energy facilities Planning and environment update

Victoria’s renewable energy transition will need to continue apace to ensure that the legislated target of 50% renewable energy by 2030 can be achieved. Grid connection hiccups due to Australia’s ageing transmission infrastructure, financing challenges with the current marginal loss factor framework, and other regulatory and political factors have hampered the flow of new projects in recent times.

The Building Victoria’s Recovery Taskforce, set up by the Victorian Government to look at planning and investment options to provide stimulus to the Victorian economy in the wake of the COVID-19 pandemic, has a focus on planning options to facilitate shovel ready projects which specifically includes those which will deliver reduced greenhouse gas emissions.

Increased regulation is trying to address a number of matters related to the role renewable energy will continue to play in Victoria and nationally, such as:

• Changes to the Renewable Energy (Jobs and Investment) Act 2017 will commence by August 2020, to increase Victoria’s renewable energy target to 50% renewable energy by 2030. The legislation now recognises hydro projects as contributing to this

• Amendment VC157 (March 2019) regulates the manner in which renewable energy generators can be connected to transmission infrastructure, given the growing need to connect large scale electricity generation facilities over substantial distances to existing networks

• The National Electricity (Victoria) Amendment Act 2020 enables the Victorian Energy Minister to override aspects of the National Electricity Law and National Electricity Rules to accelerate the development of transmission system upgrades and augmentations

• At the federal level, an approvals and regulatory framework for offshore clean energy infrastructure is currently being developed, allowing some marine areas as suitable for clean energy generation

At a policy level, planning applications for solar and wind projects consistently need to address the tension between conflicting polices for the promotion of renewable energy and the protection of agricultural land and amenity in rural areas. This tension is inevitable given such projects are inherently attracted to farming zoned land due to, amongst other reasons, the need for large land requirements. An increasing need for guidance in the sector has become evident, with the Policy and Planning Guidelines for the Development of Wind Energy Facilities in Victoria being updated in March 2019 and the Solar Energy Facilities Design and Development Guideline (Solar Guidelines) being approved in September 2019.

Solar energy facilities

Solar Guidelines

The introduction of the Solar Guidelines brings Victoria in line with other jurisdictions, including Queensland and New South Wales, which also have solar farm planning guidelines in place.

Amendment VC161 (September 2019) introduced the Solar Guidelines as well as the following:

• A new State planning policy (Clause 14.02-3S) for the protection of declared irrigation districts, with applications for renewable energy facilities within such districts required to be referred to the Secretary of the Department administering the Water Act 1989.

• The Minister for Planning is now the responsible authority in relation to the use and development of land for a renewable energy facility or an associated utility installation with an installed capacity of 1 megawatt or greater (the Minister was already the responsible authority for wind energy facilities).

The Solar Guidelines outline a number of factors to assess appropriate site selection, design outcomes and consultation and engagement. They also address several planning considerations pertaining specifically to solar farms, including those foreshadowed by the Greater Shepparton Solar Farm Panel (July 2018) such as minimum setbacks, landscape screening, glint and glare management, design security, traffic impacts, noise, earthworks and dust management, electromagnetic radiation and interference and heat island effect. Flood and drainage management is also an area of focus in the Solar Guidelines, which was a primary reason for the refusal of a solar farm permit in Bookaar1

Agricultural land considerations

The new decision guidelines in Clause 53.13, the new policy at Clause 14.02-3S as well as the Solar Guidelines place emphasis on the protection of significant agricultural and irrigated land. Separately, an assessment to identify strategic agricultural land currently being undertaken by DELWP will see those areas being recognised in the VPPs in a future amendment, expected by 2021.

VCAT has provided insights into this issue in some recent decisions.

The refusal of two projects in Powervault 2 was due to the inability of those projects to overcome the strong policy position in the Mildura planning scheme for the protection of agricultural land that is productive and significant in the regional and local sense which, in particular, includes irrigated land. This is despite:

• the sites being vacant and not used for the past ten years for any agricultural purpose

• one site only having allocation under a water use licence to irrigate less than half the site

• no objection to the proposals from Lower Murray Water

• expert evidence that the loss of the sites from horticultural production would not be noticeable from an economic perspective, given that there are already over 3,600 hectares of vacant land not being used for any agricultural purposes in the Mildura Older Irrigation Area

The Tribunal found that these sites have the potential for production in the future and so should be protected for this overriding purpose. This is in contrast to the Stanhope solar farm3, which was granted a permit by the Tribunal despite the site being within an irrigation district (albeit not actively irrigated), holding a water entitlement, bore and water access and the proposal being objected to by Goulburn Murray Water.

While renewable energy projects have strong policy support in the VPPs and the Victorian government’s renewable energy target, the location of these facilities within irrigated agricultural farmland raises a number of competing considerations. Equally, three of the four solar projects considered by the Greater Shepparton Solar Farm Panel waited over 12 months to receive planning approval, due to the further work undertaken regarding the region’s irrigation infrastructure.

It should be noted that each of the above decisions were issued either prior to the approval of Amendment VC161, or with the relevant transitional provisions applying – as a result the Solar Guidelines and other provisions now established within the VPPs were not considered.

Wind energy facilities

Local community considerations

While wind energy facilities have been established in Victoria for some time, some facilities are experiencing complaints or claims from surrounding local communities. These commonly relate to noise, nuisance or other amenity impacts (including during construction phase). Nuisance complaints under the Public Health and Wellbeing Act 2008 are not necessarily resolved by assessing whether a wind farm is compliant with planning permit conditions and the mandatory NZ Noise Standard4).

Impacts to local biodiversity may also be a focus and remain a key issue for project approvals.

The Clean Energy Council has updated its Best Practice Charter for Renewable Energy Developments and Guide to Benefit Sharing Options, demonstrating the industry’s increased proactive engagement with local communities. Robust stakeholder engagement through the various project stages, and the use of bespoke neighbour agreements where appropriate, are strongly encouraged.

New noise regulation

Amendment VC160 (24 January 2020) has clarified that applications to amend wind farm permits do not need to resubmit mandatory noise assessments, if the amendments sought would not alter the findings of the earlier assessments submitted.

Separately, amendments to the Environment Protection Act 2017 (EP Act), now expected to commence on 1 July 2021 (or 1 December 2021 at the latest), will require wind energy facilities to comply with the new general environmental duty (GED) (along with a whole suite of other reforms). The GED will operate separately from planning permit requirements.

The GED will require that ‘a person who is engaging in an activity that may give rise to risks of harm to human health or the environment from pollution or waste must minimise those risks, so far as reasonably practicable’. Significantly, ‘human health’ is defined to include ‘psychological health’. The GED will require management of noise impacts from operations, given that the definition of ‘pollution’ includes noise pollution. A person commits an offence if they contravene the GED in the course of conducting a business undertaking.

Further, section 166 of the EP Act prohibits the emission of ‘unreasonable noise’ from non-residential premises. ‘Unreasonable noise’ is defined to include noise that is unreasonable having regard to certain listed factors:

• its volume, intensity or duration;

• its character;

• its time, place and other circumstances in which it is emitted;

• how often it is emitted; and

• frequency spectrum (a prescribed factor under the draft Regulations).

Wind energy facilities will need to assess whether their operational noise remains reasonable for the purposes of section 166 once it comes into effect, including by reference to adherence to planning permit noise conditions.

Ellen and Tom are Senior Associates in the Environment, Planning and Communities team at Herbert Smith Freehills. You can subscribe for blog updates at https://hsfnotes.com/environmentaustralia/.

The authors would like to thank Tanya Wesseik, Paralegal, for her contributions to this article.

Endnotes

1. Bookaar Renewables Pty Ltd v Corangamite SC [2019] VCAT 1244.

2. Powervault Mildura Generator One Pty Ltd v Mildura Rural CC [2019] VCAT 1473 (23 September 2019).

3. Globird Energy Pty Ltd v Campaspe SC [2020] VCAT 343.

4. New Zealand Standard Acoustics – Wind farm noise NZS 6808:2010.