CHAPTER 3

THE INTERFACE BETWEEN COMMONWEALTH, STATE AND LOCAL PLANNING LAWS AS THEY PERTAIN TO WIND FARMS

3.1        Although the wind energy industry depends on emissions reduction laws enacted by the Commonwealth and state parliaments,[1] the planning of wind energy facilities is a matter principally for the states and local governments.

3.2        In this chapter the Committee considers some of these laws and processes, using the planning system in NSW as an illustrative case. Climate change policies, the future interface of planning laws and the formation of national wind farm guidelines are also considered.

Commonwealth climate change policies

3.3        In recent years, the Commonwealth Government's climate change policies have affected the pattern of generation technologies across the National Electricity Market (NEM).[2] In particular, the Government has introduced two schemes which have encouraged investment in renewable energy and particularly in wind energy: the Mandatory Renewable Energy Target (MRET) scheme; and the Renewable Energy Target (RET) scheme.

The Mandatory Renewable Energy Target scheme

3.4        In June 2000, the Government introduced the national MRET scheme.[3] The scheme required electricity retailers and other large electricity buyers to purchase an additional 2 percent of their electricity from renewable or specified waste-product energy sources by 2010 (equating to 9 500GWh).

The strategic importance of this legislation is not only that it delivers on a key aspect of [Australia's] commitment in Kyoto [to set targets for renewable electricity generation by 2010]. It is not only that it achieves significant greenhouse gas reductions, of up to seven million tonnes per year. It is also that it represents a big step along the road of 'greening' our electricity generation sector–a sector which represents the single largest contributor to Australia's total greenhouse emissions.[4]

3.5        In response, there was a marked increase in the number of large–scale wind farm proposals and developments.[5] However, wind generation continues to account for only a small proportion of the NEM electricity mix. In 2010, wind generation accounted for approximately 3 percent of capacity, supplying 2 percent of output.[6]

The Renewable Energy Target scheme

3.6        In August 2009, the Australian Government expanded the MRET scheme by creating the national RET scheme. The expanded scheme set a target of 20 percent renewable energy generation by 2020 (a fourfold increase of the existing target to 45 000GWh).[7]

3.7        At present, wind energy accounts for almost one quarter of Australia's clean energy generation (22.9 percent). In the past year, approximately 5 000GWh of electricity (powering over 700 000 homes) was generated by 1052 wind turbines across 52 operating wind farms.[8]

3.8        According to the Clean Energy Council, and other submitters to this inquiry:

Wind power is likely to be the dominant technology during the early years of the [RET]. It is currently the least expensive form of renewable energy and has a proven track record of being rolled out on a large scale.[9]

3.9        The Australian Government's climate change policies are evidence of its support for wind farms as an important source of renewable energy.[10] However, while the Commonwealth is a key player in the national energy market, and specifically the NEM, its practical involvement is limited.

3.10      Each state and territory is constitutionally responsible for energy matters within its own jurisdiction. Consequently, the national energy policy is mainly implemented at the state and territory level using existing planning systems.[11]

Planning systems

3.11      The multiplicity of planning systems, and the numerous requirements of each system at the state and local government levels, can cause confusion and uncertainty, with the interface between planning systems not necessarily transparent or well understood. The NSW Legislative Council's inquiry into Rural wind farms (the NSW Inquiry) received such evidence, as did this inquiry.[12]

3.12      The Construction Forestry Mining and Energy Union (Construction and General Division) told the committee that there should be greater co–ordination between the three tiers of government, as well as clarification of their respective roles:

The different roles and responsibilities of the respective tiers of government is not generally understood by members of the general public and finding your way through the maze of government regulation, even using the tools such as the internet, can be daunting to those experienced in such matters.[13]

3.13      However, as noted by Wind Prospect Pty Ltd, a wind farm developer operating in a number of jurisdictions, Australian planning processes are generally similar:

[A]ll require the provision of detailed environmental assessments of wind farm proposals, require a public consultation process to be undertaken and contain provision for public submissions on the development applications.[14]

3.14      For illustrative purposes, the planning system of New South Wales is described below in some detail.

The planning system in New South Wales

3.15      New South Wales does not have specific legislation for the development of wind farms. Proposals are instead assessed under a number of environmental planning instruments, including: the Environmental Planning and Assessment Act 1979 (NSW); Environmental Planning and Assessment Regulation 2000; State Environmental Planning Policies (SEPPs); and Local Environmental Plans (LEPs).[15]

Environmental planning instruments

3.16      The Environmental Planning and Assessment Act 1979 (NSW) is the principal legislation used to guide planning and development in New South Wales. In particular, Part 3 of the Act sets out the plan-making system, including the mechanisms by which certain developments are assessed and approved.

3.17      SEPPs and LEPs are legal documents that regulate land use and development in a specific area. SEPPs are generally made by the Minister for Planning, while LEPs are prepared by councils to guide planning decisions for local government areas.

3.18      Development Control Plans (DCPs), prepared in accordance with the Environmental Planning and Assessment Act 1979 (NSW), are also used to help achieve the objectives of a LEP by providing specific, comprehensive requirements for certain types of development or locations.[16]

Other documents

3.19      Developers have also had available to them documents other than the legislative instruments described above. In 2002, for example, the NSW Wind Energy Handbook was published, providing information on all aspects of wind energy development.[17] Another example is the Australian Wind Energy Association’s 2006 Best Practice Guidelines for Implementation of Wind Energy Projects in Australia (see below).[18]

3.20      More recently, the NSW Government has been developing guidelines to provide information on state specific assessment processes and requirements. These guidelines will also provide clarification for NSW stakeholders on the interface between Commonwealth, state and local wind farm requirements. The NSW Government plans to release the NSW Wind Farm Planning Guidelines in 2011.[19]

Assessment and approval processes

3.21      In mid–2008, the NSW Government commenced a reform of its planning system. As part of that reform, the NSW Department of Planning introduced a streamlined planning approvals regime for renewable energy, covering both small–scale and large–scale systems. Renewable energy proposals are now considered under Parts 3A, 4 and 5 of the Environmental Planning and Assessment Act 1979 (NSW).[20]

3.22      Part 3A of the Act sets out the planning approvals regime for major infrastructure and other projects, including 'critical infrastructure' projects. Renewable energy proposals with a capital cost of more than $30 million (or $5 million in an environmentally sensitive area of state significance) are considered a major project.[21] 'Critical infrastructure' projects are a type of major project deemed by the Minister for Planning to be essential to the State for economic, social or environmental reasons.

3.23      According to the NSW Department of Planning, only a minority of major projects covered by Part 3A of the Act are declared 'critical infrastructure'.[22] However, renewable energy projects with the capacity to produce at least 30MW of electricity are classified as 'critical infrastructure'[23] which would result in a large number of wind farms being assessed by the Minister for Planning rather than councils. (In Victoria, until recently a similar situation existed whereby the Planning Minister was the responsible authority for wind farm proposals where the capacity would exceed 30MW. In 2010, in that state the majority of wind farm permit applications were determined by the Planning Minister.)[24]

3.24      Under Part 4 of the Environmental Planning and Assessment Act 1979 (NSW), which deals with small-scale developments, local government councils are the responsible authority for all wind farm approvals The relevant SEPP is SEPP (Infrastructure) 2007, which defines small wind turbines (a wind turbine with a generating capacity of less than 100kW), small wind turbine systems (a system comprising one or more small wind turbines each of which feed into the same grid or battery bank) and wind monitoring towers.[25] A council's LEP and/or DCP might also contain additional planning controls.

The Part 3A environmental assessment and approval process

3.25      Under the Part 3A planning approvals regime, the Director–General of the NSW Department of Planning prepares the environmental assessment requirements. These requirements outline the key issues that a proponent must address in its environmental assessment of a proposed project. The requirements are specifically tailored to each project and are referred to as Director–General's Requirements.

3.26      In preparing the Director–General's Requirements, relevant public authorities (such as the Department of Environment, Climate Change and Water and local councils) may be consulted. For some projects, a planning focus meeting may be held to help determine the scope of issues and level of assessment required.

3.27      The Director–General's requirements also outline any consultation requirements and may require the proponent to include, as part of their environmental assessment, a statement of commitments setting out the actions the proponent is prepared to undertake for environmental management and mitigation measures on-site, or development contributions.[26]

Witnesses' comment on the planning process

3.28      Several submissions commented on the assessment and approval process for major and 'critical infrastructure' projects for which the NSW Minister for Planning is the responsible authority. The Clean Energy Council submitted that the planning system provides an overarching framework to assess proposed actions by balancing the benefits of a wind farm development with any impacts. In relation to impacts, the Clean Energy Council submitted:

Extensive and exhaustive assessments are undertaken by proponents prior to submitting a development application to determine whether a wind farm is feasible on a specific site and as to whether there are any potential environmental or social issues that will impact upon the viability of a proposal. In addition to this, proponents engage a range of stakeholders at early stages of feasibility to determine whether there are any further environmental, cultural or amenity impacts that need to be understood and managed as part of the development.[27]

3.29      In contrast, other submissions did not support the Part 3A assessment and approval process. In their view, the planning system favours wind farm developers at the expense of councils and local communities.[28]

3.30      The  was informed that a similar situation exists in Victoria where the planning system allows for stakeholders[29] to make submissions and presentations on a wind farm proposal:

These processes enable a wide range of issues relating to the wind farm proposals to be addressed, and their impacts assessed...The Victorian processes are open and transparent and satisfactorily allow, and encourage, public participation.[30]

3.31      However, Prom Coast Guardians cited its experience with the Dollar–Foster North wind farm proposal and submitted that councils and local communities essentially had no voice in relation to wind farm proposals determined by the Victorian Planning Minister. In its view, the public consultation process was deficient:

Where a Panels Victoria hearing was convened to consider a proponent's application and objectors submissions, the hearing was required to 'give due weight' to the state government guidelines. The proponents usually had the resources to retain expert witnesses to present evidence favourable to their position, as well as lawyers to argue their case and to cross–examine objectors. Local communities and councils in rural areas did not have the resources to match this state government and corporate overkill...In the unlikely event that a panel hearing found in favour of the objectors, the Planning Minister did not have to accept the recommendations, or make them public and could issue a permit anyway. This made a lot of people in South Gippsland feel that the whole process disenfranchised them.[31]

Role of local government

3.32      State and territory government assessment and approval processes do not always produce the outcome desired by at least some councils and local communities. Councils and local communities have indicated to the Committee that, where the state government is the responsible authority, the interface with local planning laws is not adequate.

South Australia

3.33      In 2003, the South Australian Government inserted objectives and principles into local area development plans to encourage and guide wind farm development. The Environmental Defenders Office (SA) supported these changes which encourage the development of renewable energy sources in appropriate locations and submitted that:

The principles included such matters as ensuring wind farms are sited, designed and operated in a manner that:

(a)         does not significantly detract from significant visual and landscape character elements of the area;

(b)         utilises elements of the landscape, materials and finishes that minimises visual impact;

(c)         minimises the potential for adverse impact on areas of native vegetation, conservation, environmental, geological, tourism or heritage significance;

(d)         does not impact on the safety of aircraft and the operation of airfields and designated landing strips; and

(e)         minimises the potential for nuisance or hazard to nearby property owners/occupiers, road users and wildlife.[32]

3.34      Evidence from the Northern Areas Council was not so supportive. The Council argued that the 2003 objectives and principles do not represent local policy. Not only are councils obliged to implement the state wind farm policy but they find it difficult to amend state–wide policies:

A Council's ability to unilaterally change, add to, modify, strengthen or tighten these established policies is very much limited. A Council is unlikely to 'win' any argument with the Minister to accept amendments and additions to his own State–wide policies.[33]

3.35      According to the Northern Areas Council, its local community considers that the state policy does not adequately protect residents and the environment from perceived adverse impacts resulting from the operation of wind turbines. In its view, there is a need for a stronger planning focus in the development plan to better balance economic benefits with the environmental and social consequences of wind farms.[34]

3.36      Another South Australian council, the Southern & Hills Local Government Association also expressed dissatisfaction with the 2003 objectives and principles.

[T]hey are pretty general in nature, although there are other council wide planning principles and objectives that can be applied to different aspects of this type of development. The issue is that the conditions are of a general nature and making a case to support or reject can mean paying for expert consultants. Over the last several years, international and interstate standards have become more detailed and more 'performance based', seeking to establish greater setback distances to more adequately deal with low frequency sound impacts on human health etc. The Planning Principles within South Australia have not been updated since they were introduced in 2003.[35]

New South Wales

3.37      Similar views to those above were held by some witnesses from NSW, including the Molonglo Landscape Guardians and the Upper Hunter Landscape Guardians.

3.38      Molonglo Landscape Guardians submitted that the NSW Government interferes in local planning instruments.[36] Molonglo Landscape Guardians also objected to state and territory governments using statutory powers to override the wishes of local communities. Three examples were cited as evidence: first, the announcement of the Renewable Energy Precincts (see below); second, the availability and use of call–in powers; and third, the quashing of community views by the 'greater good' argument.[37]

3.39      The Upper Hunter Landscape Guardians submitted that its council does not have a DCP in relation to wind farm development as the council does not see any value in developing such a DCP when the state government can choose to 'ignore local guidelines'.[38]

3.40      In essence, the Committee heard that there is a disconnect between the state government and some councils, which represent the interests of their local communities. This point was also made in the evidence of the Victorian Planning and Environmental Law Association, who explained the different policy drivers as follows:

Councils are run to represent the community and as a result, influence from the local community can affect decisions at a local level. For example, residents are generally opposed to major change within the community. On the other hand, policy at the Commonwealth or State level can be driven and respond to state wide and Commonwealth issues, such as meeting obligations under Commonwealth's Large–scale Renewable Energy Target.[39]

Victoria

3.41      Several submissions particularly commented on one state policy, which, when implemented, might significantly alter the manner in which wind farm development proposals are assessed and approved.

3.42      The Victorian Planning Minister advised that the Victorian Government is committed to empowering councils to play the lead role in the location of future wind farms. In addition to vesting primary responsibility for determinations with councils, the state government submitted that it will provide councils with technical and ongoing support from appropriate state agencies, as necessary.[40]

3.43      Some submitters expressed concern with this policy. Origin Energy Limited, for example, argued that, in general, it is more efficient and appropriate for a state planning department, or minister, to determine planning consents for large–scale wind farms. It gave a number of reasons for its position:

• other infrastructure projects of a corresponding size are typically determined at state, not council level;
• state departments have the appropriate resources, both in terms of capacity and technical expertise;
• wind farms can sometimes be divisive within a local community– increasing biases and pressures upon a local council. The state government would most likely be independent from the more localised issues;
• large projects can be located across more than one local government area. Again, state government would usually be best placed to handle these cross–boundary projects (including where a transmission line associated with the project crosses another local government area); and
• state–based decision makers often have a broader perspective to consider and account for higher–level policy settings such as state renewable energy targets, the RET and Australia's Kyoto target.[41]

3.44      As discussed in Chapter 2, some Victorian councils expressed concern with their ability to assess wind farm development proposals.[42]

3.45      The Committee for Portland, for example, considered the policy proposal impractical and backward. Its submission argued that councils do not have the requisite expertise or resources. Accordingly, state governments, which can engage technical experts, should remain responsible for the complexity and compliances associated with wind farm developments.[43]

3.46      Pyrenees Shire Council agreed with the Committee for Portland's comments regarding local councils' abilities to assess wind farm proposals. It reported that councils often need to engage specialist consultants to assist with the assessment of complex noise reports; many councils (due to resourcing constraints) accept a lot of expert evidence on face value; and councils defer hard decisions to a secondary consent phase of endorsing management plans.[44]

3.47      Pyrenees Shire Council also commented that the proposal would:

[P]lace massive resourcing constraints on local governments' already limited resources, and unless significant support can be provided by specialist staff from [Department of Community and Planning Development] this model is seen as being unworkable.[45]

3.48      The Committee notes that the Victorian Minister for Planning submitted that the Government proposes to provide support to councils affected by the new policy. However, the nature and extent of this support, as well as any terms and conditions, are not yet known.

Community consultation

3.49      A key theme to emerge in many submissions was the extent of community consultation.

3.50      Thomsons Lawyers in South Australia act for several wind farm developers. Its submission commented positively on the amount of council and local community involvement in the wind farm planning  process:

The local Council usually has significant involvement in the planning process and ensures that the community is not disadvantaged by the development. In fact, where most wind farms are developed, the Council has encouraged that development by providing for wind farm development (which meets certain requirements) in its development plan. Of course, notwithstanding the inclusion of a wind farm development in the development plan, such developments are often subject to significant public consultation. Further, the ultimate decision of the planning body is, in most jurisdictions, subject to judicial review.[46]

3.51      Many submissions did not, however, share these views. Instead, it was claimed that state and territory governments do not satisfactorily engage with local communities, either at commencement or during the development phase.

3.52      In New South Wales, one example cited was the designation of six Renewable Energy Wind Precincts for the state: the New England Tablelands, Upper Hunter, Central Tablelands, NSW/ACT Cross Border Region, Snowy–Monaro and the South Coast. These cover 47 local government areas.

3.53      According to the NSW Department of Planning, the precincts are a community partnership initiative in areas where significant future renewable energy development is expected–especially wind farms–designed to give local communities a voice and a stake in renewable energy development. Precinct advisory committees are to be formed in each of the six precincts.  A key focus of the committees will be to enhance consultation and engagement. To help facilitate improved engagement, the precinct advisory committees will include broad community representation.[47]

3.54      The Upper Hunter Landscape Guardians submitted that, in spite of the designation of the Upper Hunter as a Renewable Energy Precinct, a precinct advisory committee with local representation has not been established. Nor, it stated, did anyone from the NSW Government visit the area and meet with the local community prior to the designation of the area as a Renewable Energy Precinct.[48]

3.55      The Molonglo Landscape Guardians submitted that the main role of the precinct advisory committees appears to be 'to convince local governments and their communities of the benefits of establishing industrial wind installations in their areas'. Furthermore:

Top–down coercion of local residents and their councils by a heavy–handed and 'wind–happy' state government will not encourage 'local buy–in and ownership'. It will simply further disenfranchise rural communities.[49]

3.56      More broadly, the Collector Community Association submitted that the NSW planning system is 'immature'. In particular, the Association stated that the community engagement model is poor, causing 'immediate community–wide concern where feelings of anxiety, helplessness, and disempowerment echo around the community'. In addition, the planning regime does not 'support the imbalance of resources to equip the community to achieve a better understanding of the impacts of a wind farm development'.[50]

3.57      The Western Plains Landscape Guardians Association stated that the lack of community consultation in wind farm planning processes is alarming and breaks down many rural communities. Its submission suggested that consultation throughout all planning stages would ease community division and enable fairer outcomes for the community.[51]

3.58       CSIRO submitted that it is currently conducting a preliminary study into the factors affecting societal acceptance of wind farms in Australia. One of the factors promoting wind farm acceptance is transparent and inclusive planning processes from an early stage.[52]

Committee view

3.59      The Committee acknowledges evidence that some residents feel excluded from wind farm policy decisions affecting their local communities. It considers that affected communities should be informed of wind farm proposals in their area from the outset. It is the responsibility of the wind farm developer to ensure that effective and transparent community consultation is carried out early in the process, including but not limited to an allowance of adequate time to deliberate and provide feedback on the effect that the wind farm will have on the community. Should the proposal be significantly altered at any time during the planning process, then the local community should also be informed of the fact and be provided with an opportunity to comment on the amendment to the original application.

3.60      The Committee also considers that information provided to an affected community should contain sufficient detail as to what is proposed and how that proposal will impact on the community to allow residents to comment objectively. It would be helpful for the information to direct residents to sources of further assistance (such as the state planning body) should they wish to pursue a course of inquiry.

3.61      To the extent that planning systems do not already contain such provisions, the Committee considers that those systems' community engagement models should be examined with a view to improving stakeholder and community consultation.

The future interface of planning laws

3.62      Many submissions addressed specific aspects of planning laws at the state and local government levels. This evidence informed the Committee of the interface–both positive and negative–between those two tiers of government.

3.63      However, contributors to the inquiry had little to say regarding the interface with Commonwealth planning laws. This is not surprising given the Commonwealth's limited role in the planning processes. The comments that the Committee did receive were general in nature and directed toward improving certainty and efficiency in national wind farm policy.

3.64      Origin Energy Limited, for example, submitted that having appropriate and efficient planning processes is critical to supporting the growth of the renewable energy industry. Accordingly, Origin Energy Limited supported the following features in wind farm planning processes:

• expediency (such as a prescribed maximum timeframe for determination);
• well defined and streamlined approval processes (avoiding potentially redundant and/or multiple approval hurdles, ensuring that relationships and responsibilities amongst the various regulatory bodies are clearly defined, and coordination of issues across different departments/authorities within the state system as well as coordination between different levels of Government);
• simplified, clearly defined and consistently applied protocols, standards and criteria for environmental and technical assessment; and
• certainty (definitive and stable policy and regulatory frameworks enable better investment decisions to be made with respect to the wind industry).[53]

3.65      Many submissions focussed on one of these features, submitting that while it is desirable to have effective environmental standards:

[C]urrent Australian standards and guidelines for wind farm developments are already among the most rigorous in the world.[54]

3.66      For that reason, many submitters did not support any further regulation of the wind industry, although they considered that Australian wind farm planning processes could be improved.[55]

3.67      The Clean Energy Council, for instance, submitted:

There are numerous planning requirements currently in place at Federal, State and local government levels. The interplay of these existing federal, state and local planning laws already create a sometimes ineffective and unnecessary hurdle to the development process of wind farms with differing regulatory controls in different jurisdictions making it more cumbersome for developers working across jurisdictions. Adding additional regulatory controls would only act to add to this red tape and make wind energy more expensive.[56]

3.68      Acciona Energy agreed, stating that securing a wind farm planning permit is time consuming and costly, a situation created by complex and inconsistent regulatory approval systems in each jurisdiction. In its view, there is an environmental policy disconnect between all three tiers of government:

The development of renewable energy is supported by high level climate change policy at both Commonwealth and State level. There is however a disconnect between that high level policy and local environmental objectives applied by state and federal referral authorities.[57]

3.69      Windlab Developments Pty Ltd also saw a need to improve national uniformity and consistency:

We find that the planning process in our Australian market is more complex and less efficient than elsewhere and is often due to the interaction of the often conflicting Federal, State and local government planning requirements. Providing for more universal and consistent regulation across all levels of statutory authority would help to reduce red tape and hopefully make wind power less expensive.[58]

3.70      Dr James Prest from the Australian National University Australian Centre for Environmental Law & Centre for Climate Law and Policy argued that the RET is an important way in which to meet Australia's climate change mitigation obligations. This involves removing and addressing legal, institutional and practical barriers to renewable energy investment. Dr Prest recommended:

Attention should be given to reviewing how the existing legal framework in all Australian jurisdictions presents barriers to wind energy projects.

...

[T]here is insufficient justification for the enactment of special purpose Commonwealth legislation specifically regarding wind energy, which would be used to intervene in State and Territory approval of wind farms. Nationally significant matters (with the exception of climate change) are adequately addressed by the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

...

Specific purpose Commonwealth regulation would violate the principle of consistency in regulation. It would be unprecedented for the Commonwealth to step in and apply regulatory requirements to one particular energy industry to the exclusion of all others.[59]

Committee view

3.71      The Committee acknowledges that, as in many areas of national interest, where there are different constitutional responsibilities and intergovernmental cooperation is required, there is a degree of complexity in the interface between Commonwealth, state and local wind farm planning laws. However, there is a need for greater certainty, consistency and transparency in Australia's wind farm planning processes.

Formation of national wind farm guidelines

3.72      As previously mentioned, the Australian Government has limited practical involvement in planning wind energy facilities but COAG has developed draft national wind farm guidelines as a means of promoting consistency in state and territory planning processes.

A brief background to national guidelines

3.73      At the national level, industry best practice guidelines were released by the Australian Wind Energy Association (also known as AusWind and now the Clean Energy Council) in 2002.[60] The aim of the guidelines was to facilitate the development of high quality wind energy projects, including setting out the steps that proponents needed to undertake in the development of a wind farm.[61]

3.74      Almost concurrently, COAG established the EPHC to address broad national policy issues relating to environmental protection (particularly in regard to air, water, and waste matters) and heritage (natural, Indigenous and historic).[62] However, it was not until April 2008 that the EPHC requested its Standing Committee  to examine:

[T]he impediments associated with wind farm development in Australia and to establish whether it is possible to enhance confidence from the community and industry in the wind farm planning and assessment processes through the development of a national wind farm code or by other means.[63]

3.75       After a six month long inquiry, the Standing Committee identified a number of issues that it described as 'impediments' to the sustainable development of wind farms, namely: local amenity/environmental nuisance; ecological and heritage impacts; community engagement; and other (miscellaneous) issues.[64]

3.76      The Standing Committee also commented on the wind farm assessment and approval systems in the states and territories. It found that these systems 'are generally robust and working well':

Each of the jurisdictions has a well–developed process for the approval of new developments, including the assessment of potential environmental impacts. These processes are generally supported by a range of documentation, including policies, regulations, guidelines, zoning schemes, planning overlays and the like. Planning regulations also define the responsible authority, the statutory consultation process (including nature and length of public exhibition periods), the review process and rights of appeal. While the generic nature of the processes and documentation is similar between jurisdictions, there are local differences due to the historic development of these in each jurisdiction.[65]

3.77      In conclusion, the Standing Committee found that there would be merit in developing government–endorsed National Wind Farm Development Guidelines. Such guidelines would ensure a higher degree of consistency and transparency in the planning, assessment, approval and environmental monitoring of wind farms, as well as increase community acceptance and support for wind farms.[66]

3.78      In October 2009, the EPHC released its first draft National Wind Farm Development Guidelines for a two month consultation period. In June 2010, the EPHC released a second draft National Wind Farm Development Guidelines (the Draft Guidelines) for a 12 month consultation period.

3.79      The ultimate aim of the Draft Guidelines is to improve the transparency and consistency of each state and territory's process for assessing wind farm proposals by clearly outlining the key principles and issues for consideration.[67]

3.80      The Draft Guidelines address a range of issues which are unique or significant to wind farm development and operation: Community and stakeholder consultation; Wind turbine noise; Visual and landscape impacts; Birds and bats; Shadow flicker; and Electromagnetic interference. For these six key topics, the Draft Guidelines provide detailed methodologies.[68]

3.81      In addition, the Draft Guidelines comment on Aircraft safety and lighting; Blade glint; Risk of fire; Heritage; and Indigenous heritage. However, the Draft Guidelines 'do not have detailed methodologies [for these issues] because the solution is relatively simple or is covered well in other planning processes and documents'.[69]

3.82      The Standing Committee makes the point:

The Guidelines are not intended to be mandatory; every jurisdiction has a different statutory process for assessing wind farm proposals and it is not the intention of the Guidelines to change these. Opting for the release of draft Guidelines allows each jurisdiction to assess how the Guidelines could be best adopted within their processes.[70]

3.83      Some states and territories already have best practice guideline documents in place for the development and operation of wind farms.[71]

Commentary on the Draft Guidelines

3.84      The future interface between national and state/territory planning laws would depend upon the extent to which a state or territory commits to the Draft Guidelines. Notably, many submissions did not endorse the Draft Guidelines in their current form. Instead, these submissions described a number of perceived deficiencies and in some instances, suggested ways in which the Draft Guidelines should be amended.

Consistency with state/territory planning laws

3.85      The Clean Energy Council conceded that national guidelines have the potential to encourage greater consistency between planning regimes and remove impediments to development. However, the Council did not support the Draft Guidelines. In its view, the Draft Guidelines:

[O]nly add serious impediments to wind farm development beyond those imposed on other infrastructure investments, reducing certainty for the planning assessment process by introducing additional, often conflicting guidelines. This would add additional costs and delays to wind farm developers without delivering improved outcomes.[72]

3.86      Similarly, the NSW Government supported the concept of national guidelines but submitted that the Draft Guidelines are neither practicable nor accessible to all stakeholders:

Feedback on the guidelines at a NSW industry workshop convened in late 2010 focussed on the perceived complexity of the assessment process under the draft guidelines and deviation from accepted practices in existing assessment requirements, particularly regarding noise.[73]

The Upper Hunter Landscape Guardians supported comprehensive national guidelines, including noise and setback guidelines for which the Draft Guidelines do not make provision: There should be a consistent Australian noise standard for industrial wind farms and that standard should ensure that non–hosting residents within a 10km radius of the wind farm are adequately protected.[74]

3.87      Union Fenosa Wind Australia, a rural wind farm developer in both Victoria and New South Wales, agreed with the opinion of the Clean Energy Council, and added that there are two great drawbacks with the Draft Guidelines:

• the adoption of stringent measures to govern noise impacts without recommending uniform noise limits; and
• the legitimising of unverified claims of infrasound–induced sickness.[75]

Commonwealth involvement in state/territory planning systems

3.88      Infigen Energy, the largest wind farm owner and operator in Australia informed  the  that the Commonwealth should not be involved in the state and territory planning systems:

It is a fundamental tenet of any planning system that there be one set of planning rules and regulations and one 'responsible authority' to approve or reject planning applications. If there are two sets of planning 'rules', there will inevitably be conflicts between the two sets of rules and how is the proponent, or the community, to know which of the two rules are to be followed?[76]

3.89      Infigen Energy submitted that the Commonwealth should leave each state and territory to use its well–developed environment assessment framework for wind farms without the imposition of a complex and conflicting set of national guidelines.[77]

3.90      The District Council of Grant questioned whether adoption of the Draft Guidelines would result in the passage of enabling (federal) legislation. In South Australia, for example, councils' development plans do not cover a number of issues encompassed by the Draft Guidelines (such as potential wind turbine noise, vibrations and adverse health effects). The District Council of Grant contended that, if the Australian Government were to pass legislation, a framework similar to that of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) (see below) could apply in relation to rural wind farms.[78]

3.91      Vestas–Australian Wind Technology Pty Ltd argued that adoption of the Draft Guidelines would inhibit achievement of Australia's RET by discouraging investment in renewable energy resources:

For Australia to move from its existing level of renewable energy (currently less than 10%) up to the Government's target of 20% will require a concerted effort to attract the necessary investment in new renewable energy capacity. This is also the case with respect to reducing greenhouse emissions from the energy sector.

The draft Guidelines do not help Australia achieve these policy targets in any respect at all. If fact they are a model example of how not to encourage investment and jobs in clean energy.[79]

3.92      Some submissions from wind energy developers were especially critical of the noise assessment provisions of the Draft Guidelines.

3.93      According to Wind Prospect Pty Ltd, the Draft Guidelines' noise assessment provisions do not necessarily align with those of the states and territories. Australian Standard AS 4959–2010: Acoustics: Measurement, Prediction and Assessment of noise from Wind Turbine Generators, is different in some respects from the standards used in the states and territories. Wind Prospect stated that the EPH draft guidelines 'unfortunately only serve to add further confusion and uncertainty to the development process'.[80]

3.94      GE Energy submitted that:

[T]he base noise level requirement of 35 or 40dB(A) provided in the main assessment tool in Australia is already significantly more stringent than the World Health Organisation's recommended guideline value of 45B(A).[81]

3.95      Origin Energy Limited referred to a report which it had commissioned into the effect of the Draft Guidelines' proposed noise requirement. The technical consultancy, Sonus, reported that the guideline, which includes a 5 dB penalty for 'unpredictable audible characteristics', could require the removal of two–thirds of proposed turbines from a typical project.[82] Origin Energy Limited submitted that that this would create an unviable situation for any new wind farm project and suggested that the 'noise section' be rewritten prior to any further consideration of its adoption by the states.[83]

Committee view

3.96      The Committee has noted the criticism of the Draft Guidelines but considers that they could provide for greater transparency and consistency for planning for wind energy facilities.

3.97      The Committee notes that the Draft Guidelines are not in their final form and there is scope for amendment in line with feedback received during the EPHC consultation process.

3.98      The draft guidelines also need to reflect revisions that are being made by NHMRC to its 2010 public statement regarding any health effects of wind farms.

Recommendation 7

3.99      The Committee recommends that the draft National Wind Farm Development Guidelines be redrafted to include discussion of any adverse health effects and comments made by NHMRC regarding the revision of its 2010 public statement.

Environment Protection and Biodiversity Conservation Act 1999

3.100         In November 1997, COAG agreed in principle to the Heads of Agreement on Commonwealth and State roles and responsibilities for the Environment (the Agreement).[84] Subsequently, all heads of government and the Australian Local Government Association signed the Agreement, aiming to create a more effective framework for intergovernmental relations on the environment.[85]

3.101         A number of key aspects of the Agreement have been implemented by the Australian Government with the enactment of the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act).

3.102         The EPBC Act is the Australian Government's primary piece of environmental legislation. It provides a legal framework to protect and manage nationally and internationally important flora, fauna, ecological communities and heritage places. These are defined in the EPBC Act as matters of 'national environmental significance.'

3.103         The EPBC Act applies to any group or individual whose actions may have a significant impact on a matter of national environmental significance. Therefore, in some instances, the Commonwealth will be involved, to a degree, in the assessment and approval of a wind farm proposal.

3.104         While some submissions mentioned the EPBC Act, few submitters commented on its interface with state and territory environmental planning systems.[86] Commentary referred only briefly to the practical assessment and approval procedures under the EPBC Act.

3.105         The EPBC Act includes a mechanism to ensure that federal, state and territory governments do not duplicate their environmental protection functions or otherwise create inefficiencies. Under this mechanism, the Australian Government may enter into an agreement with a state or territory government, under which the state or territory may assess proposals that might affect matters of national environmental significance.

3.106         At present, all states and territories are parties to a bilateral agreement with the Commonwealth, allowing the state and territory governments to assess compliance with the EPBC Act.[87]

3.107         Suzlon Energy Australia Pty Ltd expressed its support for the EPBC mechanism.[88] In contrast, the Environmental Defenders Office (SA) Inc. indicated that enabling a state or territory to assess matters referred under the EPBC Act narrows the scope for opinion, as well as potentially limiting appeal rights (as occurs under section 48E of the Development Act 1993 (SA)).[89]

Committee view

3.108         The Committee considers that the EPBC Act does not require amendment specifically to address issues arising from the development of wind farms. However, the various levels of government should be clear as to which party has the responsibility for which aspect of planning. The responsible authority should be then be well resourced and should adopt very clear and transparent consultation processes.

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