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New South Wales unveils ‘Toughest’ Wind Farm Guidelines.

25 February, 2012

 

Wind farm applicants will need to meet stringent approval requirements, relating to community protection, under tough new draft guidelines. 
 
How does it affect you?
 
  • Developers of wind farms in NSW who are yet to start the application process should assess their prospective sites against the new regulatory framework, to determine whether the sites will still be viable should the Draft NSW Planning Guidelines: Wind Farms (the draft guidelines) be implemented.
  • Wind farm developers should familiarise themselves with the comprehensive community consultation process that will be required for future developments.
  • Any wind farm developers, or persons affected by wind farm developments, who wish to make a submission on the draft guidelines should do so by 14 March 2012.
 
Background
 
On 23 December 2011, the NSW Department of Planning and Infrastructure released the draft guidelines for public comment until 14 March 2012. It is anticipated that these guidelines could be in place by the middle of 2012.
 
The impact of the draft guidelines on future wind farm proposals is that:
 
  • there will be a regulatory framework that enables the clear and consistent assessment and determination of proposals;
  • there will be clear processes for community consultation; and
  • guidance will be provided on how to measure and assess potential environmental noise impacts from wind farms.
 
Which development process will apply?
 
The development process for a wind farm proposal will vary according to the wind farm's capital investment. Applicants fall into one of the following three categories:
 
  • wind farm developments with a Capital Investment Value of less than $5 million will be classed as a local development, to be assessed and determined by council;
  • wind farm developments with a Capital Investment Value of $5-30 million will be classed as a regional development, to be assessed by council and determined by a Joint Regional Planning Panel; and
  • wind farm developments with a Capital Investment Value of $30 million or more (or ($10 million in an environmentally sensitive area) is a State Significant Development (SSD), to be assessed by the Department of Planning and Infrastructure and determined by the Planning Assessment Commission.
 
What will new wind farm applicants be required to do?
 
The draft guidelines require an applicant for a wind farm to undertake a community consultation and engagement process involving the following:
 
  • establishing a Community Consultation Committee (for wind farms that are classed as an SSD);
  • demonstrating that an effective consultation process has taken place prior to the lodgment of the application;
  • public exhibition of the application for a minimum of 60 days (this is longer than the statutory 30-day period);
  • the wind farm owner will be responsible for the decommissioning of their wind farm, and must include a Decommissioning and Rehabilitation Plan in their environmental assessment report; and
  • any conditions specified as part of the consent may require proponents to undertake compliance monitoring and auditing. There are a number of particular auditing and compliance requirements relating to noise.
 
Neighbour consent and the gateway process
 
Under the draft guidelines, applicants for wind farm development will need to obtain the written consent of all existing residences within 2 kilometres of the proposed wind farm site. Once this consent is received, a proposal can proceed to the next stage of the SSD application process.
 
If written consent from all existing landowners is not received however, the proponent can still apply for a Site Compatibility Certificate. The Site Compatibility Certificate should address the following issues:
 
  • the predicted level of noise (including low-frequency noise) at any houses within the 2-kilometre zone;
  • photomontages that show the specific appearance of the turbines from each residence within the 2-kilometre zone (except the residences hosting the turbines);
  • details of any studies in relation to the possible impacts on landscape values (eg area zones such as RU2 Rural Landscape Zones); and
  • information on the potential for blade glint and shadow flicker.
 
Where a wind farm development has been classed as an SSD, the application will need to meet requirements as specified in the Director General's Requirements (DGRs). These DGRs require particular impacts to be assessed, and these assessments must be detailed in the applicant's environmental impact statement.
 
Health
 
The draft guidelines adopt a cautionary approach to the consideration of health issues. This means that not only must applicants explicitly consider health issues, in addition to the stringent assessment criteria, but applications can be referred to the Ministry of Health as part of the assessment process.
 
Noise
 
The draft guidelines, rather than using either of the existing South Australian or New Zealand noise guidelines have developed a NSW specific set. For instance, the predicted equivalent noise level will not be able to exceed 35 decibels or five decibels more than the background noise, whichever is greater. This is currently the lowest level in the country. There are also stringent noise criteria for low-frequency noise and penalties for special audible characteristics such as tonality.
 
The draft guidelines propose that the Environmental Protection Agency will have a role in regulating noise from wind farms that are SSDs, as well as existing transitional projects.
 
Future of renewable energy in NSW
 
Despite the obstacles the guidelines will pose for wind farm development, the NSW Government remains committed to its target of 20 per cent of the state's energy coming from renewable sources.
 
The NSW State Planning Minister has said that the draft guidelines try to strike a balance between encouraging investment and ensuring the protection of communities from the impacts of wind farm developments. However, these attempts at balance mean that there is likely to be much debate on the guidelines from lobby groups on both sides of the wind farm fence.
 
 
For further information, please contact:
 
Jim Parker, Partner, Allens Arthur Robinson
 
Paul Lalich, Partner, Allens Arthur Robinson
 

 

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