Queensland Government publishes updated State Code for Wind Farms

Snapshot

The Queensland Government has released a significantly amended State code 23, which regulates the development of wind farms in Queensland, as well as the associated Guideline.

The release of the updated State Code 23 (State Code) has been identified by the Queensland Government as Phase 1 of more comprehensive reform to the planning framework for renewables projects, which they have indicated could include bringing solar and battery projects within the ambit of the State assessment framework that wind farms are currently subject to. We have taken a look at key amendments to the State Code, which differ from the consultation draft published last year, below and have prepared a more detailed guide we would be happy to provide upon request.

Key changes

In summary, the updated State Code and Guideline have an increased focus on protection of the environment (including the introduction of requirements for progressive rehabilitation), community engagement and erosion and sediment control. They indicate increased conditioning on development approvals, and developers will need to ensure that their standard lease terms for landowners reflect the changes to the acoustic amenity provisions.

No acceptable outcomes

The mechanics of the State Code have changed – acceptable outcomes have been removed. Compliance with the code is now to be achieved through either compliance with all Performance Outcomes, or where the State Assessment and Referral Agency (SARA) determines there has been compliance with the Purpose statement.

Expanded Purpose statement

The Purpose statement has been significantly expanded.

• Version 3.0 referred to the protection of air services, risks to people and property through amenity and acoustic emissions and resilience to natural hazards, the minimisation of impacts on the natural environment, protection of scenic amenity and landscape values and the safe and efficient operation of transport networks and road infrastructure.
• Version 3.1, in addition to these elements requires that:
  •  ‘protected wildlife, its habitat, and areas of ‘high ecological value’, and associated habitat (which is not a defined term) are not adversely impacted by wind farms
  • parts of the environment cleared or modified for construction are rehabilitated to the maximum extent possible
  • the environmental values of receiving waters are not adversely impacted
  • erosion and sediment run off is appropriately managed and land is appropriately stabilised to prevent run off
  • workforce accommodation does not cause unacceptable adverse impacts on surrounding communities
  • in respect of transport, the code specifically identifies the need to provide a safe, predictable and viable haulage route that does not cause unacceptable impacts
  • decommissioning in part where construction is finalised and when operations are finalised.

Changes to Performance Outcomes

There have been significant changes to the Performance Outcomes, with an increased focus on the protection of the environment. The changes include, among others:

• Ecological – There are now 4 Performance Outcomes associated with the protection of wildlife (compared to 1 in the previous version). These new Performance Outcomes expand and lift the threshold proponents will be required to meet; they require that development is designed, constructed and operated to ensure that protected wildlife (defined by reference to the Nature Conservation Act 1992) and associated habitats (which is not defined) are protected from adverse impacts. PO3, which concerns operational impacts, includes an express reference to birds and bats. PO4 requires progressive rehabilitation during construction to occur.
• Acoustic amenity impacts – Notably, with the removal of acceptable outcomes, the solutions regarding providing a separation distance of at least 1,500m from sensitive land uses on non-host lots, or a deed where the separation distance was less than 1,500m, has not been reproduced in the new version. This creates uncertainty for proponents when it comes to establishing compliance with the code regarding acoustic amenity, although less stringent noise level requirements do apply where a deed is in place. The updated Guideline still contains reference to the separation distance of 1,500m, but only in reference to what information the deed of release is to contain (being the agreed setback distance where less than 1,500m).
• Water quality and erosion risk – The Performance Outcomes associated with water quality have been amended to include more stringent requirements as to protections in place to preserve the water quality of receiving waters, particularly in regard to sediment and erosion control. The water quality objectives that were in version 3.0 of the State code have been removed.

Changes to the Guideline

Key changes to the Guideline include:

• Supporting application material – The Guideline now includes a new section summarising typical supporting application material required and reports that will likely be conditioned as part of any approval. For the protection of wildlife, there has been some expansion of what might be required, particularly around rehabilitation and bird and bat management. For other Performance Outcomes, such as those concerning natural hazards, workforce accommodation and decommissioning, the Guidelines now identify additional reports that will typically be required.
• Pre-lodgement – Engagement with a wider group of stakeholders is now recommended before pre-lodgement advice is sought. Additional stakeholders now included are the Department of Energy and Climate regarding alignment of the proposal with energy policy objectives and long-term infrastructure planning, the Department of Resources, Land and Surveying Services regarding land tenure status (for example regarding whether lease agreements for host lots are consistent with a wind farm use), Department of Transport and Main Roads to discuss traffic impacts, as well as railway managers, QFES and the National Heavy Vehicle Regulator.
• Ancillary transmission infrastructure – A point of uncertainty around State code 23 and the assessment of wind farms has been the extent to which transmission lines can be considered ancillary to the wind farm use itself. Previously, the Guideline (which we note is not binding) had included a statement that said large scale transmission lines to connect a wind farm to the power grid were not considered ancillary. This statement has not been included in the updated version of the Guideline.

Key takeaways

In summary, the changes to the State Code and the Guideline mean proponents are required to prepare more supporting application material, with lifted requirements for achieving compliance with the code. We also expect to see increased conditioning for development approvals.

Under the Planning Act 2016, although SARA will be required to assess the development application against the version of the State Code in force at the time the application was properly made, SARA is able to give weight (however much they consider is appropriate) to the updated version of the State Code (i.e. the Coty Principle).

Proponents with current, or future applications should engage with SARA as early as possible when it comes to negotiating conditions of approval.

Given the removal of acceptable outcomes, developers will need to ensure that their standard lease terms for landowners reflect the updated acoustic amenity provisions.

We have prepared a more detailed summary of the differences between the old and new versions of the State code and Guideline. Please reach out to Kathryn Pacey or Holly Vaughan and we will be happy to provide you with this document.

Written by Kathryn Pacey, Partner, Holly Vaughan, Senior Associate and Riley Quinn, Solicitor.