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Key permit issues for Victorian solar projects clarified

With the Victorian Civil & Administrative Tribunal’s (VCAT) recent decision to overturn the Wangaratta Rural City Council’s (Council) decision to refuse a permit for ESCO Pacific’s proposed 140MW solar farm near Glenrowan Victoria, a number of key issues were clarified. The decision represents a sound reference and basis for future solar project developments.

In this case, ESCO Pacific appealed the Council’s decision to VCAT. The Council and objectors were opposed to the project on the basis of a range of issues including the loss of agricultural land, extent of vegetation removal, extent of amenity impacts and loss of vistas.

VCAT’s deliberations:

Strategic context: The Tribunal considered the strategic policy context and found that the Tribunal must balance conflicting strategies in favour of community benefit and ‘sustainable development.’

Agriculture: The Tribunal balanced the importance of retaining agricultural land with the public interest of encouraging investment in renewable energy (here, solar energy). Relevant to these considerations are:

  • How much energy would be generated by the solar plant and whether its contribution would be significant; and
  • The agricultural productivity of the site.

Amenity impacts: Landscape protection was an important consideration. The Tribunal considered the following factors to be relevant:

  • Where the landscape would be viewed from (viewpoints);
  • If other approved renewable energy facilities will form part of the landscape in question; and
  • If the views (of the solar farm) are ‘short lived’ or ‘continuous’ for motorists.

Glint and glare: When considering potential impacts on surrounding residents, relevant considerations outlined by the Tribunal included:

  • The material used in the manufacture of the PV panels;
  • The use of any tracking system; and
  • The orientation of the arrays.

Vegetation removal: After considering the type and density of vegetation that would be removed, the Tribunal did not find that the loss of vegetation to be disproportionate to the benefit of the site. Relevant considerations noted by the Tribunal were:

  • Type and density of vegetation;
  • Presence of threatened species, Ecological Vegetation Classes (EVC) and Vegetation Protection Overlay 3 (VPO3); and
  • Historical land use.

Traffic: The Tribunal considered the traffic impacts and access to the site during construction. It also considered VicRoads’ opinion of the proposed location and traffic. It found that traffic delays would be temporary and infrequent, and therefore the impact will be minimal.

Community contributions: ESCO’s application to the Council for the project included the creation of a community fund to support local projects and programmes. The Tribunal did not consider the creation of a community fund to be necessary for a permit and outlined that the community should benefit from the energy generation of the facility and not from monetary contributions. Although the Tribunal did not prohibit the creation of a community fund, it is important to note for developers, who have ordinarily regarded community funds as best practice stakeholder management.

Rehabilitation: The Tribunal found that a rehabilitation and decommissioning plan was necessary. The following matters were considered when determining the ability to rehabilitate the site:

  • Proximity to electricity networks;
  • Planning policy, zones and overlaps;
  • Agricultural value, biodiversity and native vegetation; and
  • Cumulative effect of solar energy facilities and impact of infrastructure.

Lake Island Effect: The Lake Island Effect hypothesises that birds may mistake solar panels for water, causing them to be injured. The Tribunal questioned whether there is sufficient evidence to support the Lake Island Effect and decided in this case, the effect would be minimal. When discussing this, the Tribunal considered:

  • Local waterbirds and their flight paths;
  • Whether the PV panels are reflective, continuous or separated; and
  • Evidence about the Lake Island Effect.

Heat Island Effect: The Heat Island Effect postulates that air temperatures around renewable energy facilities will be greater than regular air temperature. Although there was no evidence tabled to the Tribunal about the Heat Island Effect, the Tribunal found that it would not impact the application as:

  • There was insufficient evidence to show a temperature increase would occur; and
  • The temperature increase would be marginal.

Noise: The Tribunal considered a noise impact assessment and considered the noise produced from battery storage facilities in night time periods. It found that compliance to sound levels at night may require sound absorption measures and this provided support to disallowing the battery storage facility from being included in the facility.

The above is from the following VCAT decision: Esco Pacific Pty Ltd v Wangaratta RCC [2019] VCAT 219.

How can we help?

HWL Ebsworth has advised on over 50 renewable energy projects, involving all aspects such as planning and environment, development, connection, supply, construction and operation. Our market leading knowledge in this sector enables us to deliver value for clients beyond the provision of legal services, regardless of business type or any given project phase.

To discuss the Tribunal’s findings in this judgement, and how they will affect your business, please do not hesitate to contact us.

This article was written by James Lofting, Partner, Peter Dreher, Partner, and Shantanu Joshi, Law Graduate.

James Lofting

P: +61 3 8644 3414

E: jlofting@hwle.com.au

Peter Dreher

P: +61 3 8644 3616

E: pdreher@hwle.com.au

Important Disclaimer: The material contained in this publication is of a general nature only and is based on the law as of the date of publication. It is not, nor is intended to be legal advice. If you wish to take any action based on the content of this publication we recommend that you seek professional advice.