Development Approval Not a Breeze for Regional Wind Farms

In late March, the Regional Development Assessment Panel refused Fortescue Energy’s proposal to develop a wind farm of up to 10 wind turbines, 10 kilometres from the Southern Cross Airport.

The application was refused principally on the basis that the procedural changes that would be required at the airport, resulting from a maximum turbine height of 240 meters, required the consent of the Shire of Yilgarn as the land-owner (which was not given), and who also did not want to bear the costs of the ongoing maintenance costs associated with the changes.

The Shire would only accept an agreement that would cover all costs associated with the proposal, and leave no potential liabilities outstanding for the Shire. While the proponent did attempt to address this stance through a condition that it would pay for costs associated with the airport changes before, during and after the respective construction, operation and closure of the project, it was determined by the RDAP that such a condition could not be valid. The RDAP agreed with the Shire’s position that the condition would not be ‘fair and reasonable’ as it relates to a separate parcel of land, is uncertain and unreasonable, and has an ulterior purpose to achieve a legal agreement between the Shire and the proponent.

It is a somewhat unusual situation where a Responsible Authority, as opposed to a proponent, seeks to argue that a possible approval condition is not fair and reasonable, and there is some doubt as to whether there is in fact a planning purpose in this case in requiring as a precondition that an agreement is struck between the proponent and the Shire as to costs to the airstrip directly resulting from the proposed development. If it was the case that the Shire did not reject the location of the project per se, but was solely concerned about costs and financial stability, it would intuitively be comforted by the condition requiring such an agreement (to its satisfaction) to be placed on development approval. Where a Shire’s motivations for refusal are grounded in simply not wanting a project in a particular area, it would be in the interests of efficiency and would save proponents time and money if this could be expressed at an early stage. This illustrates the current state of confusion present for all parties involved under the current framework.

If this decision is considered as precedent to the effect that a local government can insist on being entirely indemnified for any future costs arising from wind turbines projects located near airports, this potentially constrains WA’s movement towards renewable energy sources and its goal of net zero emissions by 2050. While there is no doubt that local governments should not bear the costs of renewable energy developments, it remains to be seen the role that the State and Federal governments should play in assisting proponents of these much-needed developments to bring projects to fruition.

With an $18billion reform to the WA environmental legislation flagged by Premier Roger Cook, it is uncertain whether the State Government will assist renewable energy proponents in acquiring development approval as it has committed to in the context of the state’s environmental framework for projects of “state significance”, through the planned adoption of a fast-tracked approvals process.

In contrast to the position in WA, the Victorian Minister for Planning is the responsible authority for all wind energy generation facilities in that state. Such projects are eligible for an accelerated pathway that greatly reduces the timeframe for approval, and proactively

works to identify and resolve potential blockers at an early stage. This unified approach is one that could potentially be adapted and implemented to alleviate the varied and inconsistent approach currently taken in WA, providing greater clarity and certainty.

However, the dangers of such a centralised consideration are exemplified in the forfeiture of a panel process and third party appeals heard by the Victorian Civil and Administrative Tribunal. While the Victorian Government stresses that community voices will continue to be heard, the aptly named “Development Facilitation Pathway” will likely tend to live up to its namesake and facilitate development more often than not. There is potential incongruence between the objectives and area-specific knowledge levels of the State and local governments, and there is a real danger that in some cases projects with significant community impacts will be allowed to go ahead for the “greater good” in Victoria’s desperate push for greener energy sources.

Attention should be given to the outcomes of the newly-adopted Victorian approach, and how well it is able to balance increased efficiency in an approval sense with a satisfactory level of consultation and consideration for community concerns. From a proponent’s perspective, placing this decision-making ability in a higher level responsible authority will likely lead to shorter approval timeframes and a greater chance of success. However, until a Victorian-esque approach is adopted in WA, proponents of wind farms, especially those near airports, may be limited to locations where they can not only obtain local government approval, but also be willing to make significant indemnities that could well reduce the viability of a project.