Ensuring a wind farm is legally sound, communicating clearly with surrounding communities and developing a plan B in the event of a merits appeal are some of the ways in which wind developers can obtain approval for their projects.

Peter Briggs, Head of the Environment, Planning and Communities team at Herbert Smith Freehills, talks about the lessons he’s learned from advising on a wide range of diverse wind farm projects in Victoria and NSW — including Gullen Range, White Rock, Taralga, Silverton, Crookwell 1 and 2, Paling Yards, Uungula, Sapphire, and many others.

 

Victoria the most difficult state for approvals

Mr Briggs says Victoria takes the gong for having the most onerous wind planning policies and assessment processes, followed by NSW — although policies in Victoria
have been revised slightly in recent times.

“For example, the Victorian Labor Premier Daniel Andrews has announced changes
to wind farm planning laws, which wind back the requirement to obtain consent from houses within 2 km of turbines to a more realistic 1 km.”

Apart from the reduction of mandatory wind turbine setbacks to dwellings, the Victorian Minister for Planning has been reinstated as the approval authority for all wind energy projects and related transmission line infrastructure — underlining the fact that renewable energy is a matter of state significance that requires a state-wide approach.

 

NSW in the process of providing clarity

The NSW Department of Planning and Environment is still in the process of providing the industry with some much needed certainty on the status of the draft Wind Farm Planning Guidelines, which have created confusion for proponents, opponents and decision-makers.

The draft guidelines proposed owner’s consent requirements for all dwellings within 2 km, although it goes one step further and outlines strict requirements around community consultation, visual amenities, noise, health, decommissioning, auditing and compliance. However, this requirement has never been formalised and is not currently applied.

“One interesting development in NSW is that the Department has been beefing up its enforcement and compliance capacity, and is taking a much more aggressive position on compliance, especially during construction,” Mr Briggs says.

“This is matched by some very large new penalties and enforcement powers.”

In NSW, the Planning Assessment Commission (PAC) is the approval body for all wind farm projects — ensuring the community has a full opportunity to be heard before PAC makes a decision on whether to give its approval to a project.

Where requested to do so by the NSW Department of Planning and Environment, PAC may also be directed by the Minister to hold a public hearing, according to Mr Briggs. Currently, this has only happened for mining projects. A public hearing would prevent objectors from bringing merit appeals in the Land and Environment Court of NSW.

 

Practise due diligence from the start

Mr Briggs says wind farm developers would typically fulfil the below criteria to ensure their projects have the best chance of succeeding:

  • Ensure the wind farm is framed on legally and technically sound foundations from
    the outset.
  • Assemble the best legal and expert team at the start to ensure a smooth planning and approval process.
  • Ensure the environmental assessment process made as robust as possible.
  • Have a clear community
    engagement strategy.
  • Guarantee that the technical assessment, planning, property and communications teams work closely with the expert legal team to give the project the best chance
    of being approved.
  • Take a strategic and integrated approach to land access and approvals so these threads are skillfully linked.

Mr Briggs says community consultation is key to avoid the contentious communications pathways that are often reported between wind farm developers and local communities.

“It helps to be able to show that you have taken proactive steps, above and beyond legal requirements, to engage with and consult the local community,” Mr Briggs says.

“Consideration should also be given to the possibility of entering into neighbour agreements with adjoining landholders near the wind farm,” he adds.

The Department of Planning and Environment is encouraging developers to go to some lengths to demonstrate attempts to negotiate agreements with neighbours about impacts before approval is given.

Such agreements can share some of the benefits of the project with people who lie outside the immediate project area. For example, late last year, the NSW Office of Environment and Heritage commissioned Ernst & Young to conduct a study into the tangible advantages of utilising benefit sharing mechanisms.

An article titled ‘Obtaining the social licence to operate’ in the October 2015 edition of EcoGeneration outlines the most innovative ways to empower and involve local communities. Landowner payments, the rent proximity model, community co-ownership and community ownership are the various types of mechanisms being utilised to increase the levels of community input into decision-making.

 

Preparing for merits appeals or panel inquiries

Failing initial approval of a wind farm, a merits appeal (NSW) or panel inquiry (Vic) will take place. Recently, proceedings have been filed in Victoria challenging the validity of a new planning rule which purported to remove the need for a panel inquiry into applications to amend Ministerial planning permits where there is no increase to the number of turbines or any relocation of turbines to non-stakeholder dwellings. A decision is currently awaited on this. A merits appeal or panel inquiry requires a reconsideration of the full merits of the project.

“I strongly believe that every wind farm developer should prepare from the outset on the assumption that a merits appeal of some sort could be commenced in relation to their project,” Mr Briggs says.

In his experience, key merit issues likely to be raised in any wind farm’s appeal include:

  • noise impacts
  • visual impacts
  • perceived health impacts
  • biodiversity, including clearing and collision risks for birds and bats
  • planning issues.

“The possibility of a merits appeal requires the preparation of a robust defensive strategy as a ‘plan B’ which is ready to go if a merits appeal is commenced. This enables wind farm developers to respond quickly and effectively.”

As part of this strategy, Mr Briggs says wind farm developers should ensure all environmental assessment reports are based on robust and recognised methodologies that are able to withstand external scrutiny; and engage independent experts in accordance with the rules of the court, where necessary.

 

Risks of a merits appeal

Cost blowouts and project delays are the commonly cited by-products of being forced to undergo a merits appeal. Additionally, and more worryingly, Mr Briggs says this appeals process also increases the risk the project’s approval may be refused or granted on commercially unacceptable conditions.

“While the NSW Land and Environment Court has not yet ever refused planning approval for a wind farm project in NSW, there have certainly been instances where the Court has imposed conditions which are less than optimal, or which make construction or operations more difficult.”

In Victoria, the state government has implemented arrangements that are very similar to what were in place under the former State Labor Government, whereby an independent panel conducts a planning merits inquiry into the wind farm proposal before the Minister for Planning makes his final decision.

While an independent inquiry may extend the period for obtaining planning permits, once issued, the wind farm developer will have greater certainty in that no merit appeals to the Victorian Civil and Administrative Tribunal will be available.

In NSW, the Land and Environment Court has developed streamlined procedures
that prevent appeals from dragging on for extended periods.

“The practice usually involves a site visit on the first morning of the trial, followed by a town hall-style meeting where opponents have an opportunity to be heard in a relatively informal setting.

“The use of expert ‘hot tubs’ — where all the experts give evidence at the same time — and court-appointed independent experts also saves hearing time,” Mr Briggs says.

As a result of the recent Renewable Energy Target (RET) review, we are likely to see a number of new wind farm developments in 2016 and beyond. However, wind farm developers will continue to face enormous challenges while community opposition remains high and the legislative position remains largely unchanged.