Project planning permits are usually granted for a period of five years. The developer must utilise that period to complete the plans and assessments required by the permit to commence construction of the project. It is common that construction is not commenced within this five-year period and the developer will usually apply for an extension or renewal of the permit.
There have been numerous cases of projects where the permit has been repeatedly extended or renewed, often with significant changes to the project’s design due to the ongoing technological evolution, in particular, of wind turbines and solar arrays.
An example of elongated timeframes is as follows:
- 2001-2002, design and development activities for the proposed wind farm
- 2003, the developer submits a planning permit
- 2005, an approved planning permit with a five-year expiry term is issued to the wind farm developer
- 2010, construction of the wind farm has not been completed and upon request by the developer, the planning authority approves renewal of the permit for another five years
In these circumstances, the renewal of the permit is usually approved based on some minor level of commencement of the project, such as building a shed or a constructing a roadway. This process may be repeated again in another five years upon request by the developer.
Changes in technology may lead the developer to modify the wind or solar 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 project site, obtaining permit approvals and the project eventually being constructed.
Delays between the time of obtaining a permit approval for a project 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/solar panel selection and turbine/solar array layout (which may be a consequence of issues uncovered by fulfilling the permit conditions), delays in obtaining financial close, litigation and changes in government policy.
These lengthy timeframes for projects are significant and can raise several issues for consideration, including:
- Standards, such as noise standards, may change during this lengthy timeframe of the development process. For example, at the time of initial project development and permit approval, a wind farm 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. It is therefore possible that wind farms being constructed in 2023, that were initially approved in 2009 or earlier, will be designed to meet the older 1998 noise standard.
- Setback distance policies (e.g., the minimum distance between a wind turbine or solar array and a neighbour’s residence) can also vary over time. As an example, a number of Victorian wind farms with current, renewed permits have no default minimum setback distance provisions as the original permit was approved prior to 2011, when no default minimum setback distance was required in Victoria. In 2011, a 2 km turbine to residence setback distance was introduced into Victoria. The current default turbine setback distance in Victoria is 1 km – changed back to that distance in 2014.
- Changes in standards and planning guidelines for renewable energy projects could therefore conceivably take many years from the time they are introduced by planning authorities to when they are actually written into planning permits for proposed projects.
- Technology also changes over the project timeframe. The original project design and permit conditions may have been based on wind turbines of a certain energy capacity (for example, the original proposed turbine may have been 1.5 MW, whereas the current contemporary turbine in the market may be say 6.5 MW, which will be much more efficient and a lower cost per MWh produced) resulting in changes to physical size dimensions (for example, higher turbine hub and tip heights and longer blade lengths). As a result, the developer is likely 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 reduced number of turbines, turbine layout, visual amenity, impacts of noise and shadow flicker. Such changes will likely result in the need for a formal modification (or amendment) to the existing planning permit, re-opening the proposed wind farm to potential objections and community concerns about the changes. Similar impacts can occur with technology changes at solar farms.
- Further, there are consequences and impacts as a result of the significant increases in wind turbine dimensions, such as transport routes and vegetation clearance along roadways – often leading to the need for a planning modification and/or landholder negotiations along the route. Apart from taking time itself, the modification process may well reignite original community opposition and issues with the project, adding 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 proposed project (including host landowners and neighbours) can be subjected to very long periods of uncertainty as to whether 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.
- Allowing developers to enjoy unlimited permit extensions/renewals can lead to ‘land-banking’ of optimal project sites that are constraining the roll out of new generation capacity.
- 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 occurring for nearby residents and the broader community that are then caused by the original project when it proceeds.
Given that a project is presumably required to show commencement of works prior to extending a planning permit, if such works are genuine, then the project should be well completed before the extension or renewal period expires. Therefore, one renewal term should suffice.
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 and building permit. In effect, the layout of a potential project 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.
The situation can be further complicated in the scenario where a property owner has an ‘as of right’ claim to build a dwelling on the property without needing a planning permit.
In Victoria, the Planning Provisions were amended in 2021 to introduce new planning permit requirements for dwellings and other types of accommodation. Planning permits are now required for all uses if they are within one kilometre of a title boundary, where the land beyond the boundary is subject to a permit or planning application for a wind farm. This requirement is regardless of whether the property has an ‘as of right’ claim.
In the broader scenario, 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 design and planning purposes, where the dwelling permits are already approved and in place prior to a wind farm planning 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 project 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. In reviewing building permit applications for new dwellings, local government councils should also advise applicants of any submitted or approved projects in the vicinity.
Other Project Infrastructure
In some jurisdictions, planning permits are not required for connecting transmission lines and other associated infrastructure to enable connection of the power station to the grid. This gap in 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.
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.
4.2.1 A project’s 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 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 2018, expiring 31 December 2023, should be reasonably required to comply with any contemporary guidelines and standards currently in force that could be expected to be complied with, and 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, including feedback from community members, 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 regarding 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 projects in the vicinity – with respect to residents who may experience cumulative effects that may be exacerbated by the proposed project 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 after 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 If 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. Minimal achievements, such as a roadway or shed constructed on the land should not be considered as material commencement of construction.
4.2.8 State governments should consider including relevant questions for prospective rural property purchasers to ask about potential projects in the vicinity of the property – to be included 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 project 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 after 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, within 300 m of a proposed or operating transmission line, or within 100 m of a proposed or operating large scale solar array, should be referred to the project developer by the responsible authority. The developer should then assess and verify potential impact levels of the project at the neighbour’s proposed 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 Private 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 transmission line. 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 landholder 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.
4.2.14 Major new long-distance, large-scale transmission projects that form part of the strategic integrated system plan and transformation of the network grid, should be designated as ‘State Significant’ and/or ‘Nationally Significant’ projects and be required to be assessed under the corresponding planning assessment process consistent with the project’s importance to the broader community.