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In brief - NSW government aims for more clarity around wind farm development process

The NSW Department of Planning and Environment is now considering the public submissions it has received on its newly proposed Wind Energy Planning Framework, which will underpin the future strategic policy for wind farm developments in NSW. 

Wind energy investment needs to be balanced with community needs

The recent debate over wind farms has led to inertia on the development of wind farms in NSW. In particular, the uncertainty and delay in obtaining approvals or modifications to approvals has impacted on wind farm investment in NSW when compared to other states in Australia. This is despite the 2011 Draft Planning Guidelines for Wind Farms.
 
The stated intent behind the Framework is to balance investment in wind energy with the needs of the community.

Approval regime includes considering capital investment value of State Significant Development wind farm projects

In NSW a tiered approvals regime for renewable energy projects exists to ensure that the level of assessment is appropriately tailored to the scale and type of the project. The Framework's Assessment Policy provides the following table as a general overview of wind energy project categories and the assessment pathways:

Wind Energy Planning Framework Proposed Draft Assessment Policy, NSW Department of Planning and Environment, p.4.
 
As the above diagram demonstrates, the two key SEPPs are the:
 
As a general rule, wind farm developments are assessed as State Significant Developments (SSD) where the proposed farm has:
  • a capital investment value (CIV) of $30 million or more, or 
  • a CIV of $10 million where proposed in an environmentally sensitive area 
However, it is technically possible for a wind farm project to be assessed as local, regional and designated development, which would involve assessment and consent by councils or Joint Regional Planning Panels, depending on the category of development.
 
The Framework deals only with wind farm developments that fall within the definition of  SSD under the Environmental Planning and Assessment Act 1979. In other words, it will not apply to projects that have lower CIVs than what is mentioned above. 

Framework includes technical noise, visual impact and environmental assessments

The Framework has been put forward to address delays in the assessment and determination of applications that have been identified for wind farm projects. It includes:
  • An overarching Assessment Policy: this provides guidance on the planning framework for the assessment of large-scale wind farms and emphasises a front-end approach to community engagement.
  • A technical Noise Assessment Bulletin: this provides guidance on how to measure and assess environmental noise impacts from wind farms.
  • A technical Visual Impact Assessment Bulletin: this provides guidance on the principles applied in the siting and visual assessment of wind farms.
  • Standard Secretary’s Environmental Assessment Requirements: these provide a template set of requirements that any wind farm project that is SSD will need to meet.
Consistent with the Environmental Planning and Assessment Act, the Assessment Policy contemplates the submission of an environmental impact statement (EIS) by the applicant, and public exhibition of the EIS for a minimum of 30 days. The applicant is then afforded the chance to respond to submissions prior to the application being determined.
 
Significantly, the Framework also removes the requirement for a minimum buffer zone between adjacent sensitive uses. Negotiated agreements with neighbouring parcels are instead considered the preferred mechanism for dealing with impacts. The Bulletins also contain mitigation requirements based on the number of turbines and their proximity to a sensitive land use.

Wind Energy Planning Framework's implementation and implications

It is intended that the Department of Planning and Environment will provide an updated Framework and possible draft amendments to the planning legislation to give effect to the Framework in early to mid-2017.
 
If finalised, the Framework will provide better clarity for proponents and the community about what is required for the development of any SSD wind farm, and when and how they might be approved.
 
The shift from buffer zones to private market negotiations will require more extensive community engagement and the preparation of agreements addressing the concerns of relevant neighbours. 

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal advice. Please seek your own legal advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​