New Draft Wind Energy Planning Framework

In brief

The New South Wales Government has released its new Wind Energy Planning Framework, with the aim of establishing a more efficient and consistent assessment and approval regime for wind energy projects and also addressing the concerns raised by stakeholders to the 2011 draft Guidelines. The 'buffer zone' focus under the 2011 draft Guidelines has been set aside in favour of a merits-based analysis, which focuses on key issues of noise and visual impact. Partner Paul Lalich, Planning Special Counsel Marcia Doheny and Lawyer Claire Macdonald consider the new Framework and its implications.

Key points

• Investment in the wind energy sector in NSW has to date been limited relative to other states, due largely to the absence of legislative support and a number of wind farm proposals being the subject of well publicised adverse decisions by the NSW Land & Environment Court.
• The NSW Government has released the new Framework in order to address the issue. The Framework contains initiatives intended to shift the focus from mandatory buffer zones to impact assessment and mitigation, and achieve greater efficiency of process.
• The Framework removes the 2-kilometre buffer zone criteria, preferring a merit-based approach which focuses on the key issues of noise and visual impact.
• While the Framework will not apply retrospectively, the VIA (Visual Impact Assessment) Bulletin and Noise Bulletin will apply to applications which have been submitted but not yet determined as at the date of the Bulletins' publication. The Bulletins will also apply to certain modification applications submitted subsequent to publication.
• Community engagement is to occur earlier in the process via an applicant sponsored Community Consultative Committee process.
• A new methodology for visual impact and noise assessment is mandated, with revised noise assessment methodologies proposed based on the South Australian noise guidelines. New preliminary screening tools and visual performance objectives for visual impact assessment are also proposed. 
• Submissions on the draft Guidelines can be made until 16 September 2016.

Background: Wind farm assessment in New South Wales

This month, NSW has followed Queensland, (discussed in our Client Update: New wind farm planning code and guideline for Queensland), in announcing changes to the State wind energy planning laws.

As previously discussed in our Focus: Every wind farm needs good neighbours: NSW unveils 'toughest' wind farm guidelines), the NSW Department of Planning and Infrastructure released the Draft NSW Planning Guidelines for Wind Farms (the Guidelines) in late 2011. The NSW Government has replaced  these with the release of a new Wind Energy Planning Framework policy (the Framework). The key draft documents being exhibited are:

• Draft Wind Energy: Assessment Policy (the Assessment Policy)
• Draft Wind Energy: Noise Assessment Bulletin (the Noise Bulletin)
• Draft Wind Energy: Visual Impact Assessment Bulletin (the VIA Bulletin)
• Draft Standard Secretary's Environmental Assessment Requirements (SEARs)

The Assessment Policy and associated documents replace the draft Guidelines, which will be revoked after the Framework is finalised. Applications submitted after 3 August 2016 will therefore be required to comply with the Framework, particularly the contents of the Noise and VIA Bulletins.

Under the Guidelines, the development process for a wind farm proposal in NSW was based on three categories of capital investment value, which class developments as 'local developments' (less than $5 million), 'regional developments' ($5-30 million), or 'State Significant Developments' ($30 million or more, or $10 million in an environmentally sensitive area). The new Assessment Policy subdivides each of these categories based on the electrical power output of the proposal, being either less than or more than 30MW, with slightly different planning assessment pathways for each.

The new Framework applies to State Significant Development (SSD) wind energy proposals and certain related modification applications. As such, it does not apply to the local or regional development classes established under the Guidelines, which will be dealt with by the Infrastructure SEPP. In reality, however, the majority of wind energy development in NSW is SSD.

Under the 2011 Guidelines, applicants were required either to obtain the written consent of all existing residences within 2 kilometres of a proposed wind farm site, or apply for a Site Compatibility Certificate. Under the 2016 Framework, negotiated agreements between applicants and landowners are the 'preferred mechanism' for managing assessment criteria, intended to allow applicants more flexibility in negotiating private agreements.

The Guidelines established some of the most stringent approval requirements in Australia, including the establishment of a Community Consultation Committee, Decommissioning and Rehabilitation Plans and compliance monitoring and auditing. The new Framework retains these, and permissible noise levels are still the lowest in Australia and among the toughest in the world. Significantly, however, the arbitrary 2-kilometre buffer zone requirement in the Guidelines has been abandoned in favour of a more general consideration of the project and its impacts, and the public exhibition period has been reduced from 60 to 30 days (the statutory minimum).

Key provisions of the Draft 2016 Framework

Proximity of turbines to existing dwellings

• Perhaps most significantly, there are no set buffer zones for turbine distances based on turbine height. Rather, each wind energy development is to be assessed on its own circumstances.
• Instead, the key issues under the Framework policies are visual impact and noise impact, which is reflected in the documents dealing with each topic individually.

Visual impact

• The VIA Bulletin requires a Visual Baseline Study to be undertaken as part of the Environmental Impact Statement (EIS) establishing 'visual influence zones', and requires the use of 'visual performance objectives'. The Bulletin divides the VIA process into two main phases, being:
  • the Preliminary Environmental Assessment phase; and
  • the Assessment and Determination phase.
• Preliminary screening tools of 'visual magnitude' and 'cumulative impact' for visual impact assessment are intended to drive better design and site selection, as well as early community consultation.

Noise impacts

• The Noise Bulletin proposes the adoption of the assessment methodology in the 2009 South Australian Wind Farms – Environmental Noise Guidelines, with some variations, for the NSW context, including a stricter base noise criteria and guidance on certain noise characteristics such as tonality and low frequency noise.
• The noise requirements do not apply where there is a noise agreement with the landowner (associated property).
• The general approach to noise issues largely remains the same as under the Guidelines. The Noise Bulletin retains the existing noise limits of 35dB or background noise plus 5dB, whichever is greater.
• Noise and health: the NSW Government is informed by the scientific findings of the National Health and Medical Research Council and NSW Health, in that 'there is currently no consistent evidence that wind farms cause adverse health effects in humans'.
• Noise monitoring requirements are maintained as a condition of consent.

Consultation requirements

• The Framework retains the stringent consultation requirements proffered in the Guidelines, requiring the establishment of a Community Consultative Committee to engage in a consultation process addressing:
  • Landscape values;
  • Land access and occupation arrangements, including negotiated agreements;
  • Landowner consent for land on which the development is to be located; and
  • Benefit sharing and negotiated agreements.
• The Framework introduces the concepts of 'associated properties' (land on which a turbine or related facility will be situated, either by agreement or negotiated agreement) and 'non-associated properties' (land required for access during construction and/or maintenance, or that have not reached a financial or in-kind agreement).
• The standard Secretary's Environmental Assessment Requirements outline the minimum consultation requirements, however the Assessment Policy highlights the value in engaging with stakeholders prior to SEARs being requested.

Other considerations

• Refurbishment and decommissioning: the Framework maintains the position in the Guidelines, whereby the wind energy project owner or operator is responsible for decommissioning and rehabilitation, which must be addressed in the EIS.
• The SEARs are on exhibition as part of the Framework, and will allow for the assessment of remaining key issues in wind farms.
    

Comparison between 2011 & 2016 requirements