Wind Energy Facility Planning Scheme Amendments
Yesterday the Victorian Government gazetted Amendment VC82, which changes all Victorian planning schemes relating to the development of wind energy facilities.

The planning scheme amendment gives effect to the Liberal National pre-election wind farm policy on all matters except the establishment of a shared payment system for landowners whose properties are within one kilometre of the nearest turbine.

Overview: The main changes to the planning scheme are to implement the government’s policy that a turbine must not be located within 2km of an existing dwelling without the owner’s consent. In addition, the changes prohibit wind energy facilities in a number of other locations, including whole municipalities such as Macedon Ranges Shire and Yarra Ranges. Further detail about the policy is set out below.
Setbacks

Amendments to clause 52.32 make a wind energy facility prohibited where any turbine that forms part of the facility is located within 2km of an existing dwelling unless evidence of the written consent of the owner of that dwelling is submitted with the permit application. The amendments do not specify the form of consent required. It is important to note that the consent only has to be provided by an owner of an existing dwelling, and consequently does not apply to tenants or dwellings that are planned or approved but not yet constructed. We anticipate that a wind energy developer would only be able to obtain the consent of an owner by entering into some form of commercial agreement. The terms and form of those agreements will need careful consideration of a number of issues, such as whether the agreement should be registered on title to bind future owners and whether it could include provisions on amenity, the ability to object to the project, and requiring owners to obtain the consent of tenants. We can assist to develop a list of criteria and a form for such agreements and consents if you wish.

In the absence of obtaining an agreement with all dwelling owners the only way around the prohibition would be to amend the planning scheme to include the wind energy facility site within a special purpose zone, such as a special use zone. These zones are frequently used for land uses such as power stations and other utilities. This could be an avenue for projects which have obtained the majority of dwelling owner consents but have been unable to obtain the consent of one or two landholders.

Furthermore, a new 5km setback will now be enforced for land within 5km of a residential zone, industrial zone, business zone or special purpose zone in an urban area of major regional cities and centres. Those towns affected are: Ararat, Ballarat, Benalla, Echuca, Colac, Bairnsdale, Bendigo, Portland, Geelong, Shepparton, Horsham, Moe, Morwell, Traralgon, Mildura, Hamilton, Swan Hill, Wangaratta, Warrnambool, Wodonga, Sale. There is an exception to the 5km setback where the wind farm is ‘integrated as part of the development of the land.’ We assume that exception applies to small scale development such as a single turbine associated with a residential or industrial use to provide power to that land.
Prohibition of wind energy facilities

Amendment of existing permits: The transitional arrangements set out in clause 52.32-7 of the planning scheme do not assist holders of permits issued by the Minister for Planning. If an amendment is required to such a planning permit, then the new planning scheme requirements apply to that amendment, which would require the developer to obtain the consent of owners of any dwellings within 2km of a proposed turbine. The provisions of the planning scheme that applied before 15 March 2011 only continue to apply to applications for amendments of permits issued by the local council or the tribunal.
Extension of time applications

The extension of time provisions are similar to the previous transitional arrangements. The planning scheme in force before 15 March 2011 continues to apply to an application for extension of time under section 69. However, the extension of time must specify an expiry date for the commencement of the development no later than 15 March 2012.

For a better interpretation of the amendments follow the following Freehills link.