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Planning Permits - Time Limits and Scope Changes

4.1. Observations

Background

Once approved, a project planning permit is typically granted for a period of five years. The developer then has that period of time to fulfil and complete the various plans and assessments required by the permit in order to commence construction of the project, consistent within the permit conditions. It is quite common that construction is not completed within this five-year period (or even commenced), where the developer then applies for an extension or renewal of the permit.

There have been numerous cases of projects where the permit has been extended or renewed for further periods, often with significant changes to the project’s design due to the ongoing technological evolution of wind turbines and solar arrays.

Elongated Time Frames

As a hypothetical example, design and development activities for a proposed wind farm may have commenced in the 2001-2002 timeframe, submitting a planning permit in 2003. In 2005, an approved planning permit with a five-year expiry term may have then been issued to the wind farm. If construction of the wind farm had not commenced or been completed by the time the approved permit expired in 2010, upon request by the developer, the planning authority may have then approved the permit to be renewed for a further five years until 2015, with the renewal approval usually based on some minor level of commencement of the project, such as a shed or a roadway.

Changes in turbine technology may lead the developer to modify the wind farm’s design and layout, typically requiring preparation and submission of a planning amendment application for approval. This process may further delay the project from commencing construction, requiring yet another planning permit extension out to say 2020. By this time there are no guarantees that the project will be completed by the permitted timeframe, resulting in a further possible permit extension beyond 2020.

Therefore, it is feasible that a period spanning 20 years or more can occur between the original prospecting at the wind farm site, permitting approvals and the wind farm being constructed.

Delays between the time of obtaining a permit approval for a wind farm and the actual commencement of construction works can occur for a variety of reasons. Typical reasons include undertaking and obtaining approval for the various reports and plans required by the permit prior to construction commencement, changes in turbine selection and turbine layout (which may be a consequence of issues uncovered by fulfilling the permit conditions), delays in obtaining financial close and changes in government policy.

These lengthy timeframes for a wind farm project are significant and can raise a number of issues for consideration, including:

Standards, such as noise standards, which may change during this lengthy timeframe of the development process. For example, at the time of initial project development and permit approval, the project and permit conditions may have been based on the NZS 6808:1998 noise standard. Although the standards may have been revised in the ensuing period, the project and permit will still be based on the 1998 standard, rather than the updated NZS 6808:2010 noise standard – even though the wind farm may have been built more than 15 years after the initial project’s permit approval and well after the more recent noise standard came into effect.

Setback distance policies (the minimum distance between a wind turbine and a residence) can also vary over time. As an example, a number of Victorian wind farms with still current, renewed permits have no default minimum setback distance provisions as the original permit was approved in the previous decade. Prior to 2011, there were no default minimum setback distance requirements in Victoria. In 2011, a 2 km setback distance was introduced. The current default setback distance on Victoria is 1 km.

Changes in standards and planning guidelines for renewable energy projects could therefore conceivably take many years from the time they are introduced to when they are written into planning permits for proposed projects.

Technology, such as wind turbines, may also change over the project timeframe. The original project design and permit conditions may have been based on turbines of a certain energy capacity (for example, the original proposed turbine may have been 1.5 MW, whereas the developer now wishes to deploy 4.5 MW turbines) with changes to physical size dimensions (for example, higher turbine hub and tip heights and longer blade diameters). As a result, the developer may decide to take advantage of the new technology and propose to change their turbine selection during the elongated time period. This change may potentially alter a number of material characteristics and impacts of the wind farm, including turbine layout, visual amenity, noise and shadow flicker. Such changes will likely result in the need for a formal modification (or endorsement) to the planning permit, re-opening the proposed wind farm to potential objections and community concerns about the proposed changes.

Further, there are consequences and impacts as a result of the significant increases in wind turbine dimensions, such as on transport routes and vegetation clearance along roadways – often leading to the need for a planning modification and/or landowner negotiations along the route. The modification process may well reignite original debates and issues with the project, and add further delays to project start or completion.

The transport plan itself also needs to be holistic and be carefully planned and mapped from port to project, requiring appropriate consultation with all relevant stakeholders that have jurisdiction along the proposed route. This consultation will need to be repeated if there is a change to the route and/or the impacts on related matters such as vegetation clearance and property access.

The current requirements on the developer to qualify for the ability to request a renewal of the permit for a further period may be minor relative to the total project scope (for example, the building of a simple shed or road access to the site) so to demonstrate some level of commitment to construct the project. These relatively minor works, when compared to the total proposed project, may be viewed as not substantial enough to demonstrate that the project has materially commenced within the permitted timeframe nor obligate the project in a way that it has no choice but to proceed.

The community affected by the wind or solar farm (including host landowners and neighbours) can be subjected to very long periods of uncertainty as to whether or not the project will proceed. This uncertainty can affect a range of individual landowner and stakeholder decisions as well as discourage or prevent other potential development within the project’s planned footprint and surrounds.

Community engagement may also not be sustained by the developer over long periods of uncertainty and may deteriorate during the elongated time frame.

During an elongated development cycle, other projects may have been subsequently planned and/or constructed in the area, which may result in possible unforeseen cumulative impacts for nearby residents and the broader community.

Precedence

Depending on the jurisdiction, a developer may not need to assess potential impacts on a dwelling that is yet to be constructed, even though the dwelling has a valid, current planning permit and building permit. In effect, the layout of a potential wind or solar farm may take precedence over existing planned dwellings, resulting in the possibility of the planned dwelling being too close to turbines to meet noise limit criteria and other setback requirements.

It would seem reasonable to expect that a legitimate proposed dwelling, that has proper and current permits in place, needs to be considered as a potential dwelling for project planning purposes, where the dwelling permits are already approved and in place prior to a wind farm permit application being submitted.

If the dwelling is subsequently not constructed and/or the permits expire, then the developer may choose to adjust the wind farm design accordingly.

Further, once a development is approved or constructed, persons wishing to build a dwelling or infrastructure within proximity of the wind farm should have their plans referred to the developer to check whether the dwelling is within the compliance criteria for matters such as noise and shadow flicker.

Other Infrastructure

In some jurisdictions, planning permits are not required for transmission and other associated infrastructure to connect the power generator to the grid. This lack of review and oversight can lead to a wide range of community issues related to the design, routing and installation of the transmission line and related assets. The prospect also exists for duplicative assets separately connecting each generator to the grid, with no mandatory requirement to seek consolidation of the transmission infrastructure so to minimise community impact and promote a more efficient use of capital.

Responsible Authorities

In general, state governments are the designated responsible planning authority for large-scale renewable projects. However, some exceptions exist. For example, Tasmania’s responsible authority for approval of wind farms is currently local government (although there are some proposed planning reforms which may change this framework). Queensland’s planning scheme also has delegated large-scale solar farms to local government as the responsible authority, as was the case in Victoria until recent changes.

Given the skills, resources and expertise required to properly assess and manage the planning process for these large-scale energy assets, it is strongly preferred that state governments retain responsibility for the planning process and approvals, along with compliance enforcement. Further, council may avoid decision-making by simply declining the proposed project, resulting in an appeal to the appropriate state planning and environment court or tribunal, adding further delays and costs in the process.

4.2 Recommendations

4.2.1 A wind or solar farm planning permit should only be renewed for one further term as a maximum, unless there are exceptional circumstances that have caused a delay in commencement. Approval of permit renewals (or extensions) should require the developer to demonstrate the likelihood of the project commencing and being completed prior to the end of the requested/approved renewal or extension period.

4.2.2 Requests for material changes to a project’s proposed design and technology need to be scrutinised through an appropriate and rigorous process by the responsible authority. The process should be transparent to all stakeholders and include re-assessments of key impacts such as noise, visual amenity, environmental considerations, aviation, transport route, transmission requirements, shadow flicker and construction impacts. Planning amendment applications for material changes should be subject to public exhibition and the ability for community members to raise concerns and objections.

4.2.3 The responsible authority should be able to reasonably introduce and apply current/updated planning guidelines, applicable standards and updated permit conditions when assessing a request to renew/extend a permit or when approving a planning permit amendment. For example, a developer seeking to renew a permit issued on 1 January 2017, expiring 31 December 2021, should be required to comply with any contemporary guidelines and standards currently in force that could be reasonably expected to be complied with, as such the developer should prepare the renewal submissions in accordance with the contemporary guidelines and standards.

4.2.4 Evidence of ongoing community engagement for the project should be submitted to the responsible authority when seeking a renewal approval or permit modification request. Submissions should include evidence of current community consultation efforts with regard to any proposed changes in the project design and layout subsequent to the original permit approval.

4.2.5 In considering a renewal/extension or permit amendment application, the responsible authority should assess any compounding effects of other proposed or constructed wind farms in the vicinity with respect to residents who may experience cumulative effects that may be exacerbated by the proposed wind farm that is seeking permit renewal or amendment approvals.

4.2.6 Further to Recommendation 4.2.5, the responsible authority should assess the impacts of any other planning approval requests or confirmed approvals in the vicinity that have arisen subsequent to the project’s original permit approval when considering the permit renewal/extension application. These could include dwellings that had legitimate planning approvals prior to the project’s original permit being approved that have subsequently been built and are inhabited.

4.2.7 In the event that the project is seeking a renewal/extension of the permit period to allow a commenced project further time for construction completion, the responsible authority needs to be fully satisfied that material construction has already commenced and provide extensions only for the period where it would be reasonably expected for the remaining construction to be completed. For example, the project should have reached financial close and commenced actual construction of wind turbines or solar arrays. A roadway or shed should not be considered as commencement of material construction.

4.2.8 State governments should consider including relevant questions for prospective rural property purchasers to ask about potential wind or solar farms, in the vicinity of the property, in any due diligence ‘checklist’ that may accompany a contract of sale or vendor statement document.

4.2.9 Planned dwellings within proximity to a proposed wind or solar farm that have existing, approved and current planning and building permits, should be treated and assessed as an existing dwelling by developers when preparing and submitting permit applications. Planned dwellings that subsequently are not constructed within the specified time limits and/or have expired permits, can be removed as a constraint to the planning layout. See also recommendation 4.2.10 regarding development plans subsequent to a project planning permit being approved.

4.2.10 Neighbours to projects, where the project is in either development or in operation, should be allowed to submit development plans to the responsible planning authority for new development on their property, such as a dwelling or a shed. Development proposals within at least 1.5 km of a proposed or operating wind turbine, should be referred to the wind farm developer by the responsible authority for consultation and to verify impact levels of the wind or solar farm at the proposed neighbour’s development site. Development proposals in locations where the project is likely to exceed prescribed standards and limits may require written agreements to be reached between the neighbour and the project before the neighbour’s development can be granted final approval by the responsible authority.

4.2.11 Transmission lines, substations and other related electrical infrastructure should all be subject to and require an appropriate planning permit, ideally as part of the overall permit for the project. Careful consideration should be given to the design and routing of the powerline. Developers should collaborate wherever possible to optimise use of shared transmission facilities. Relevant governance bodies (transmission planning, electrical safety, road safety, local councils etc.) should be properly consulted on the planning application and exercise their oversight responsibilities accordingly.

4.2.12 State governments are best placed to be the responsible authority for large-scale renewable energy and storage projects. Local governments have a very important role to play in the planning process, road access, community engagement, construction and operation of the project, but should not be burdened with the overall planning and compliance responsibilities.

4.2.13 Developers should provide evidence that they have landowner consent for the development application and any subsequent planning permit amendment applications. If the developer is declaring they have obtained such consent, the declaration should be subject to an audit.

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