Solar farms in the spotlight - Victorian draft guidelines released

In brief

The Victorian Government has released draft guidelines for the design, assessment and development of large-scale solar farms. Partner Jillian Button, Senior Associate Emily Johnstone, Associate Isabella Kelly and Lawyer Zainab Mahmood provide an overview of the guidelines' key features.

Background

The Victorian Government has recently published draft strategic guidance on the approval and development process for large-scale solar farms, following in the footsteps of other Australian jurisdictions. Queensland issued the Queensland Solar Farm Guidelines in September 2018 (the Queensland Guidelines),² New South Wales is currently finalising the draft Large-Scale Solar Farm Guidelines (the NSW Draft Guidelines),³ and Western Australia released a Draft Position Statement on Renewable Energy Facilities (including solar array systems) in May 2018. The release of the Guidelines is timely, as there has been a growing demand for Victorian guidance on the planning approval process for solar farm development applications. Relevantly, the Guidelines were released on the same day that the Victorian Government approved an application to develop a large-scale solar farm in Congupna, which had been the subject of a ministerial call-in and Panel hearing in May 2018 (the Panel hearing).

During the Panel hearing, which was the first in Victoria to consider a solar farm development,⁴ a number of submissions requested the Government publish guidance on solar farm permit applications, including in relation to the use of agricultural land. The Panel report responded to these submissions, recommending that the Government consider preparing guidelines to assist with the preparation and assessment of, and decision-making on, future permit applications.⁵

These developments signal that solar farms will be a key component of the Victorian Government's commitment to meeting its renewable energy generation target of 40 per cent by 2025, and will form a key part of the policy agenda leading up to the November 2018 election.

Key takeaways

As with the guidelines that Queensland and NSW issued, the Guidelines are not binding. They also only apply to large-scale solar facilities, and do not apply to solar panel arrays that supply energy for existing use of the land on which they are located.

The Guidelines are divided into two sections.

Section one: 'Policy, Planning and Legislative Requirements'

This section provides practical guidance for proponents, councils and local communities on Victoria's legislative and policy framework for solar farm proposals.

While the policy requirements do not contain any major reforms or impose additional statutory obligations on solar farm proponents, they recommend the formal recognition of rural water corporations as recommending referral authorities for 'specific non-agricultural developments in areas serviced by the modernised irrigation grid'. We do not consider this to be a particularly controversial proposal. In our experience, it is already common practice for councils to refer solar farm permit applications involving the use of Farming Zone land to rural water corporations for advice. In any event, the Guidelines confirm that rural water corporations will continue to be a key stakeholder during the pre-application stage.

The other key takeaways of this section are as follows:

• The Guidelines recognise that proximity to the existing electricity network and spare connection capacity available at the anticipated connection point are highly important considerations for solar farms.
• They provide a checklist of strategic considerations for the site selection process. Proponents are strongly encouraged to hold discussions with the local community and council at the pre-application stage, better to understand key local values and strategic planning priorities.
• Permit applications must include a design response, in accordance with clause 53.13 of the Victoria Planning Provisions. The Guidelines suggest that the design response should include a report addressing (among other things) the agricultural quality of the proposed site, the amount of strategically significant agricultural land in the area, and the potential impact of removing this land from agricultural production.
• The Guidelines acknowledge that Farming Zone land can be used for non-agricultural developments, including solar farms, and that solar farms can contribute to rural economies and support farm incomes by providing property owners with a diversified revenue stream.
• They emphasise that the value of 'strategically significant' agricultural land is an important planning consideration during the site-selection and permit assessment phases of a solar farm development.
• The Guidelines outline the key considerations in a council's assessment of applications to develop solar farms on strategically significant agricultural land. These include the opportunities and benefits from dual use or co-location, how the facility could contribute to the agricultural economy by providing energy security or an alternative income stream, and how the facility could be decommissioned and the land rehabilitated in the future to an agreed standard.
• The Guidelines indicate that the cumulative effect of solar energy facilities in the surrounding area will be relevant to the site selection and permit assessment processes. However, they are not clear on what factors will be most relevant to an assessment of cumulative effects (eg visual impact, impact on agricultural land), and whether or how these effects should be weighed against the benefits of clusters of solar farms, including opportunities for concentrated economic investment in a local community.

Section 2: 'Best Practice Guidance'

The second part of the Guidelines sets out a 'best practice' approach for solar farm proponents to apply at each stage of the application and development processes. Recommendations include pre-design and pre-application community and other stakeholder engagement, and adopting design measures to minimise visual amenity impacts, such as using vegetation buffers as screening.

In our view, the best practice strategies largely mirror those that solar farm proponents in Victoria are already adopting. Nonetheless, the Guidelines are useful because they provide insight into the expectations that councils, communities, and other stakeholders will have of solar farm proponents throughout the approval and development phases.

Relevantly, the section also expressly addresses the question of potential off-site impacts of solar farm developments, and, in particular, the concept of the 'heat island effect', which featured in a number of the submissions that members of the Greater Shepparton community made during the Panel hearing.

The Guidelines state that while the heat island effect does exist in large urban areas, there is limited evidence that the dispersal of heat from solar farms could impact other land uses, such as orchards. As mentioned above, they also endorse the co-location of solar farms with other rural land uses. Therefore, the Guidelines may provide rural communities (and councils) with a greater degree of comfort about the potential impacts that a proposed solar farm development could have on their agricultural enterprises.

How do the Guidelines compare with the guidelines issued in other jurisdictions?

The Victorian Government has stated that the Guidelines were drafted following a review of other guidelines and best practice standards applied interstate and internationally.⁶ Perhaps unsurprisingly, the Guidelines are similar in structure and content to the NSW Draft Guidelines and the Queensland Guidelines. However, the Queensland Guidelines provide a greater degree of detail on the planning and approvals legislative framework.

For more information regarding the Queensland Guidelines, please read our Client Update: New planning and community engagement guidelines for solar farms in Queensland.

The Guidelines are largely consistent with the existing Development of Wind Energy Facilities Planning and Policy Guidelines (the WEF Guidelines) the Victorian Government issued in November 2017. However, unlike the draft solar farm Guidelines, the WEF Guidelines provide specific guidance to responsible authorities in assessing planning permit applications, including key criteria for evaluation of the planning merits of a proposal, and model permit conditions that can be adapted to suit particular projects.

In our view, the Guidelines would benefit from further detail on the particular matters that responsible authorities must consider in determining a solar farm planning permit application, as well as guidance on a responsible authority's role in administering and enforcing planning permit conditions. This would provide more certainty to municipal councils, solar farm developers and community stakeholders about how councils will regulate solar farms during the application, development and operational phases of a project. Once more solar farm proposals have been approved in Victoria, later versions of the Guidelines may benefit from model conditions that draw on key learnings from previous approvals processes.

What do the Guidelines mean for you?

The Guidelines do not contain any major regulatory reforms and are not proposed to be binding.

However, they are likely to be a significant influence on key stakeholders in future solar farm approval processes. We recommend that developers carefully review the draft Guidelines, particularly the focus on strategically significant agricultural land and comments on cumulative impacts, and consider making a submission during the public consultation period.

Next steps

The Guidelines are open for public comment until 1 March 2019. If you require advice in relation to the Guidelines, or would like assistance with drafting a submission, please contact Jillian Button.