16 Mar 2011

Winds of change: assessment of planning permits for Victorian wind farms goes local

Local councils have regained the power to issue planning permits for wind farms of all scales and greater consideration is to be given to local amenity impacts, under amendments to Victorian planning schemes which came into effect yesterday.

However, the amendments do not go as far as including a mandatory 2 km buffer between non-consenting residents and wind turbines, which had been flagged prior to the State election. Nor is there any mention of any "shared payment system" for landowners with properties within 1 km of a wind turbine as foreshadowed in the Coalition policy on wind farms prior to the election.

While the changes which have been made may be welcomed by local councils and residents, it may cause headaches and delays for proponents of large wind energy facilities. In particular, the burden of technically assessing wind energy facilities could be one which local councils are ill-equipped to bear.

What are the changes?

Amendment VC78 modifies the way that wind energy facilities are dealt with under the Victorian Planning Provisions and under all Victorian planning schemes. Previously, the Minister for Planning was the authority responsible for assessing permit applications for wind energy facilities having a generating capacity of 30 MW or more. This responsibility will now reside with local councils, subject to any Ministerial call-in or referral by council of specific permit applications.

The changes seek to promote greater consideration of the effects of a wind farm development on the local community. However, locating wind turbines within 2 km of a residence is still possible even where the resident does not consent.

Specifically, Amendment VC78 amends the State Planning Policy Framework to require increased consideration of the impact of a wind energy facility on the local community when new proposals are assessed, and alters the application requirements for new wind energy facilities to require:

  • submission of a plan showing all dwellings within 2 km of a proposed turbine;
  • submission of a concept plan showing additional transmission infrastructure, electricity utility works and access roads; and

It also updates the Planning Scheme to refer to the current noise standards, using the latest New Zealand Standard NZS6808:2010, Acoustics – Wind Farm Noise. This includes the requirement to assess whether high amenity impact noise is applicable to a proposal.

The amendment also incorporates updated Planning Guidelines, the Policy and Planning Guidelines for Development of Wind Energy Facilities in Victoria, March 2011. The updated Guidelines generally follow the previous format, although notably removed are sections outlining the Government's renewable energy policy and the requirement to give "considerable weight" to the policy objective of developing renewable energy resources.

Councils retain the ability to refer assessment of wind energy facility applications to the Minister for Planning, and the Explanatory Report accompanying Amendment VC78 notes in particular that this may be utilised where a proposal straddles local government boundaries.

What does Amendment VC78 mean for developers of wind energy facilities?

Amendment VC78 has immediate effect. Developers of new wind energy facilities will need to review their proposals to ensure that compliance with the new controls and Guidelines can be achieved. Consultation with local residents and the community will continue to be important, given the increased emphasis on local impacts for such proposals.

The potential for an Environment Effects Statement to be required for large, complex facilities straddling more than one municipality would also appear to have increased.

Developers with an existing planning permit for a wind energy facility are exempt from any obligation under the new provisions forming part of the amendment for a period of 12 months. This will enable permit amendment and extension applications to be dealt with as if the changes had not been made, provided the application is made during the 12 month transition period.

What does Amendment VC78 mean for councils?

While the Government has recognised that local councils will face increased resource and administrative costs in assessing and dealing with compliance issues associated with wind energy facilities, it has stated that "expert advice" will be made available to balance this, although no details are provided. Councils have also been reassured that the Department of Planning and Community Development will be on hand in particular to assist with the transition.


In practical terms this shift in responsibility could be a heavy burden for some councils. Unless the transition is managed properly and there is clarity over what and when expert assistance will be provided to councils, there is the potential for assessment of wind energy facilities to be delayed.

Further, a narrow focus on local amenity impacts may de-prioritise the wider benefits which renewable energy facilities may bring.

For developers, the changes could mean increased delay and cost associated with the assessment and approval of particularly large complex facilities, with the amendment paving the way for VCAT review of proposals not referred to the Planning Minister and assessed by a Planning Panel as has occurred for larger projects in the past.

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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.