New controls proposed for large-scale solar and wind developments in NSW

By Nick Thomas, Alison Packham and Joy Chen
30 Sep 2021
Proposed changes to planning controls for utility-scale wind and solar energy projects could make it more difficult to obtain planning approval for new projects, and expansions of existing projects, near strategic regional cities in NSW. The NSW Government's planning assessment guidelines for these projects are also up for review.

Proposed changes to planning controls for utility scale wind and solar energy projects (ie. projects which export electricity to the grid) could make it more difficult to carry out planning assessments, and obtain planning approval, for new projects and expansions of existing projects near specified strategic regional cities in NSW.

The NSW Department of Planning, Industry and Environment has released proposed amendments to State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) to tighten planning controls for utility scale solar and wind energy development near the "strategic regional cities" of Albury, Armidale, Bathurst, Dubbo, Griffith, Orange, Tamworth and Wagga Wagga.

The consultation period for the proposed amendments closes on 11 October 2021.

Renewable energy and potential land use conflicts

The NSW Government's Electricity Infrastructure Roadmap, which guides the transition to net zero emissions by 2050, and the scheduled closure of four of the five coal-fired power stations in NSW in the next 15 years, are key drivers for an increase in renewable energy supply. The NSW Government, like many other State and Territory governments, is keen to attract investment in renewable energy projects.

Much of the renewable energy development in NSW will occur within designated Renewable Energy Zones (REZs) in regional NSW, with efficiencies achieved by collocation near substations and network transmission lines. However, the NSW Government acknowledges that the majority (about 70%) of existing utility-scale solar and wind energy projects are currently located outside the REZs, and it is likely that some new projects will also be proposed outside the REZs. Regional communities throughout Australia have expressed significant concerns about visual and noise impacts of wind farms and the large footprint of solar farms on arable land.

The proposed changes to the Infrastructure SEPP seek to manage the potential land use conflicts and scenic impacts, and support the social licence, for new renewable projects, and expansions of existing projects, in and around the identified strategic regional cities, while safeguarding the future growth and development of those cities.

The planning pathway for utility-scale renewable energy projects

Utility-scale wind and solar energy development projects need development consent under Part 4 of the Environmental Planning and Assessment Act 1979. Depending on its capital investment value, a utility-scale wind or solar proposal will be assessed and determined by the relevant local council, the relevant Regional Planning Panel (comprising State and local council representatives) or the Independent Planning Commission (a State Government established body) as consent authority.

The Infrastructure SEPP provides the foundation for this planning pathway and key planning controls on this kind of development.

New matters for consideration for utility-scale solar and wind

The proposed changes to the Infrastructure SEPP will impose new development controls for a large scale wind or solar development proposal within 10 kilometres of the commercial centre, and within 5 kilometres of residential zoned land for a "strategic regional city" (we have set out the list of these cities earlier in this article). Within these areas, the consent authority assessing a development application must consider:

  • whether the development is located so as to avoid land use conflicts with existing and approved uses of land;
  • whether it is likely to have a significant impact on, or conflict with, land which would be required to support the growth of the regional city, having regard to any future growth areas identified in Regional Plans and local Strategic Planning Statements and advice from the relevant council; and
  • whether it would significantly impact the scenic quality and landscape character of the regional city, including any approaches to the city, taking into consideration any values identified by the community and the relevant council.

The consent authority would also be required to consider any mitigation measures to avoid and minimise the incompatibility of land uses and any scenic and landscape values of the area.

These matters are aimed at ensuring regional cities are not impacted by developments which may prevent the expansion and growth of the identified regional cities in the future, or which could impact on important scenic qualities of the identified areas.

This would preserve land on the fringe of regional cities for future residential expansion and would provide a buffer to limit land use conflicts with other important land uses in the commercial centre of the regional cities.

However, it could be difficult to identify just how much land, and exactly which land, would be preserved, if the relevant planning documents and council advice are written in broad terms. The concept of "approaches" to regional cities could also cause some confusion and debate about what the Infrastructure SEPP is intended to protect.

The proposed changes could provide more clarity on the prospects of obtain approval for utility-scale wind and solar projects near regional cities, but they could also increase the complexity and risk associated with development proposals on land in these areas which seems well suited for wind and solar projects.

Review of planning guidelines

The NSW Government has also said that it is reviewing and updating the existing Wind Energy Guideline (December 2016) and Large-scale Solar Energy Guideline (December 2018), with the changes aimed at ensuring:

  • best practice impact assessment;
  • effective stakeholder management which encourages community participation; and
  • a balance between investment and community interests.

A separate consultation period will follow for the draft revised Guidelines.

Consultation period for proposed amendments

Strategic planning in and around regional centres can avoid and balance land use conflicts and provide certainty for investment. However, it can also limit opportunities for development, and could cause real concern for existing developments and development proposals near regional cities.

Wind farm developers and investors should review the proposed Infrastructure SEPP changes and, the revised draft Guidelines when they are released, and consider making submissions.

Please get in touch if you would like to discuss or some assistance with a submission.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.