Victorian Government reinforces commitment to Solar Energy with new Guidelines

The Victorian Government recently released draft Solar Energy Facilities – Design and Development Guidelines (Guidelines) to assist the development of large-scale solar energy facilities. It is intended that following consultation with the community and industry, the final version of the Guidelines will become a source of advice on the development of best practice facilities in Victoria.

Partner Meg Lee, Senior Associate Kate Kirby and Lawyer, Zina Teoh report on the draft guidelines.

Approval of solar farms in Victoria

While planning approval for wind farms rests with the Minister for Planning, generally local councils are the Responsible Authority for approving solar farms in Victoria, with the Minister having the power to intervene in, or “call in” permit applications. Over the past 18 months, there has been an increase in solar farm applications in Victoria, and local councils have reported a lack of consistency in decision making across the state and difficulties in dealing with solar farm applications.

In February this year, the Minister called in four permit applications for solar farms in Greater Shepparton and referred the applications to an independent advisory Panel after the Council declared it was “ill-equipped” to deal with the applications[1]. The Panel released a report dated 23 July 2018 recommending that the Minister approve each of the applications, while also noting that further strategic guidance would have been of assistance in the approval process. So far only one of the applications has been approved, with the Minister announcing on 8 October that the proposed Congupna solar farm would go ahead, while decisions on the three other solar farms would be deferred until further strategic work is undertaken.[2]

The draft Guidelines confirm that local Councils are to continue being the responsible authority for solar farm applications under the Planning and Environment Act 1987 and are designed to provide some clarity to the approval process for Councils, as well as developers and communities affected by solar farm applications.

Policy, Planning and Legislative Requirements

The first section of the draft Guidelines provides an overview of the policy, planning and legislative requirements which must be met by proponents, as well as strategic considerations.

The draft Guidelines highlight the importance of locating solar farm facilities close to suitable network infrastructure to facilitate connectively to the National Electricity Market (NEM) through the Victorian electricity transmission network. The Integrated System Plan which was released by the Australian Energy Market Operator in July 2018 which identifies five Renewable Energy Zones in Victoria should be considered when determining an appropriate place for solar farm facilities. .

The key planning considerations relevant to solar farm applications highlighted in the draft Guidelines are Clauses 19.01-1S Energy Supply and 19.01-2S Renewable Energy under the Planning Policy Framework of the Victorian Planning Provisions. Application requirements and decision guidelines for responsible authorities sit under Clause 53.13 Renewable energy facility (other than wind energy facility and geothermal energy extract). Additionally, Council and solar farm developers should consider Clause 14.01 Agriculture: Protection of Agricultural Land and the impact of solar farms on agricultural land.

There was much discussion at the Panel hearing about whether there is a conflict between the objectives of the planning policies promoting the provision of renewable energy and the Agriculture Policy in Clause 14.01. The Panel concluded that:

“it is too simplistic to conclude that a solar energy facility is an inappropriate land-use because 14.01 seeks to protect productive farmland. This policy needs to be considered and balanced with Clause 19.01 and Clause 52.42[3] which seek to facilitate renewable energy proposals.”[4]

The impact of the proposals on agricultural production was a key issue for locals who made submissions to the Panel on the four permit applications in Greater Shepparton who were concerned that the facilities would reduce agricultural production it the area. The Panel found that the proposed solar farms would result in an estimated loss of agricultural production in the Irrigation District of approximately $700,000 to $1.3million a year, however there would be a positive economic effect on the region through capital investment and job creation in the region. Accordingly, balancing the various policies which apply to the proposal, the Panel concluded that, with the appropriate conditions, the four solar farms could “harmoniously achieve agricultural production and renewable energy objectives sought through State and local planning policy”.[5]

In determining whether a proposed site is an appropriate location of solar farm facilities with regard to the impact on agricultural production, the draft Guidelines suggest local councils should require applicants to provide and assessment of:

• the agricultural quality of the proposed site;
• the amount of strategically significant agricultural land in the council area and in the region; and
• the potential impact of removing this land from agricultural production.

Other factors to consider in the development of a solar farm facility which are noted in the Guidelines include:

• heritage and aboriginal cultural values (including the need for a Cultural Heritage Management Plan);
• landscape values and visual amenity;
• biodiversity and native vegetation (including the need for an Environmental Effects Statement);
• access to the Victorian electricity grid;
• other infrastructure requirements;
• cumulative effect of solar energy facilities in the area; and
• bushfire management.

Best Practice Guidance for Proponents

The second part of the draft Guidelines provides best practice guidance for proponents seeking to develop a solar energy facility. The approach set out in the Guidelines is recommended (not mandatory).

The Guidelines suggest that engagement and consultation with stakeholders including community, relevant agencies, landowners/users and stakeholders involved in prospective resource developments should be undertaken from the outset, and encourages the development of a communications and consultation plan. Solar farm developers should refer to the Victorian Government’s Community Engagement and Benefit Sharing in Renewable Energy Development guide and consider implementing a benefit-sharing program to deliver added value to the local region through the solar farm project.

Next Steps

Engage Victoria has now commenced community consultation on the Guidelines. Submissions can be made through the Engage Victoria Website (available here) and are open until 1 March 2019. The Guidelines are set to be revised following the consultation period with the final Guidelines expected to be approved in late 2019.

Proponents of solar energy facilities, industry groups, councils, authorities and other interested parties should consider the draft Guidelines further and consider making a submission.

[1] https://www.abc.net.au/news/2018-10-02/victorian-councils-call-for-solar-planning-guidelines/10328790
[2] https://www.premier.vic.gov.au/wp-content/uploads/2018/10/181008-Guiding-Victoria-With-Solar-Farm-Developments-2.pdf
[3] Clause 52.42 has now been amended and renumbered to Clause 53.13 under Amendment VC148.
[4] Panel Report: Greater Shepparton Solar Energy Facility Planning Permit Application 2017-162, 2017-274, 2017-301 and 2017-344 (the Panel Report) page 30
[5] Panel Report, page 31.

Authored by:
Meg Lee, Partner
Kate Kirby, Senior Associate
Zina Teoh, Lawyer