Wind Farms & Competing Issues

Newsflash New wind farm approvals across Victoria seek to achieve a significant increase in Victoria’s renewable energy capacity, greater reliability to Victoria’s electricity network and attainment of Victoria’s Renewable Energy Target. Despite energy benefits, Victorian planning controls require wind energy approvals to avoid unacceptable impacts on environmental, cultural and landscape values. As wind farm developments can impact other commercial activities. In deciding on a wind farm application, the decision making authority must consider among other factors, impacts on cultural heritage, aircraft safety, significant views, the natural environment (cl 52.32-5). This Newsflash considers competing issues in the case of Wind Farm approval, and the balancing of planning policies between wind energy and economic impacts as they may impact existing industries, particularly:

1. Agriculture;
2. Tourism; and
3. Aviation.

Cl 19.01 Victorian Planning Provisions (VPPs) requires consideration of the economic and environmental benefits and that facilities must be in appropriate locations, with minimal impact on the amenity of the area (cl 52.32 VPP). The VPPs include specific strategies for ten specified regions in Victoria. These regions are Metropolitan Melbourne, Regional Victoria, Central Highlands, Geelong, Gippsland, Great South Coast, Hume, Loddon Mallee North, Loddon Mallee South, Wimmera Southern Mallee As an example, the planning strategies of the Central Highlands region, which comprises six municipalities in the central western part of the State, requires that planning decisions:

• support greater economic self-sufficiency in the region.
• adopt a best practice risk management approach.
• support ongoing improvements to transport infrastructure to enhance access to major centres.
• identify and manage the potential for environmental changes to impact on the economic, as well as social and environmental wellbeing of society.
• adopt a best practice environmental management approach.

Wind farm developments require State government involvement in planning decision-making, with the Minister for Planning required to issue a planning permit, rather than the local council as is usual. The Minister must refer the objections to a Planning Panel (s97E Planning and Environment Act) (PE Act). Agriculture A key Victorian planning policy objective is protection of productive farmland of strategic significance in the local or regional context (cl 14.01-1). State planning policy requires support of agriculture by taking into account “regional, state and local, issues and characteristics in the assessment of agricultural quality and productivity” (cl 14.01-1 VPP). Again, taking the Central Highlands region as an example, it includes the requirement that long-term agricultural productivity be supported, confirms that agriculture in the area is significant to the State, with prime agricultural land producing food and fibre to the Victorian community, and that it supports employment and business. The Plan supports rural industries associated with agriculture, such as food processing, abattoirs, shearing, irrigation supplies and stock feed producers because of their contribution to Victoria’s economy. In considering wind energy, the plan acknowledges that the region is well positioned to benefit from the growth of the wind energy sector but requires planning to maintain the viability and productivity of agricultural land (cl 12.5 VPP). The Stockyard Hill Wind Farm (10 May 2017) Planning Panel Report cited the Corangamite Planning Scheme policy that agriculture is the single most important industry in that area and states that its protection and enhancement is linked to the environmental and economic well-being of the Shire (cl 22.03-1 VPP). Tourism The construction and presence of wind energy facilities can impact the tourism industry. The VPPs encourage tourism development to maximise the economic, social and cultural benefits of developing the state as a competitive domestic and international tourist destination (cl 17.04-1S VPP). At the Panel hearing for the amendments to the Elaine and Lal Lal Wind Farm it was argued that the turbines detrimentally impacted on a significant heritage landscape, negatively impacting national tourism operations reliant upon such a heritage landscape. The visual impact of large wind turbines in the very popular historical and cultural tourist region can have significant impacts on the industry. It was considered by the Panel in Portland Windfarm (AC) [2002] PPV 126 (28 June 2002)[at 4.7.4] that cultural landscape values must be appropriately responded to and this provides contributory weight to arguments for the removal of turbines. Further, it was found that redesign should seek to enhance views. The VPPs also include as a key planning policy objective the conversation of places of heritage significance are “encourage[ing] appropriate development that respects places with identified heritage values” (cl 15.03-1 VPP). According to the Heritage Council of Victoria’s Landscape Heritage Significance: Assessment Guidelines (2015) (p. 6), “an assessment of ‘cultural heritage significance’ of a landscape focuses on the way people have interacted with the physical environment over time. This produces a particular combination of remnant natural features and introduces living elements and structures.” In the case of the Lal Lal facility in 2017, a wind energy report was submitted that concluded the turbine impacts on the heritage landscape could easily and inexpensively be relocated without any energy loss at all. The Panel ultimately found that the visual and landscape impacts of the proposed amendments were acceptable, as the views of the turbines from the heritage property had become screened by vegetation. Aircraft Safety Issues VPPs require aircraft safety and aviation navigation to be considered in a wind farm application (cl 52.32 VPPs) and given this, the accurate indication of the location and usage of existing proximate airfields is essential. DELWP’s Development of Wind Energy Facilities in Victoria (November 2017) report recognises that given turbine height, potential safety impacts exist for nearby airfields and air navigation. It requires applicants to address such impacts. Planning Panels are often required to consider the balancing of wind farms and aviation. For example, in the Stockyard Hill Wind Farm (10 May 2017) Planning Panel Report, the panel considered general aviation safety, aerial agriculture, aerial firefighting and the subsequent impacts on visual amenity of installing hazard lighting. The Panel referred to its 2010 report in relation to the same facility in making findings in relation to aviation. Of significance, it found that there is no legal requirement for land use on adjoining properties to provide for the ongoing operation of aerial agricultural flights of a private airstrip on a property. However, the Panel recommended that the removal of three specific turbines would alleviate the problems relating to the conduct of such aerial agriculture operations. Additionally, the Panel concluded that there is to be no aviation hazard lighting and that wind farms did not significantly increase fire risk or impede on aerial fire-fighting operations. KELLEHERS AUSTRALIA 14 September 2018 For a PDF copy of this article click here. Copyright © Kellehers Australia 2018 Liability limited by a scheme approved under Professional Standards Legislation This fact sheet is intended only to provide a summary and general overview on matters of interest. It does not constitute legal advice. You should always seek legal and other professional advice which takes account of your individual circumstances.