Victoria’s Minister for Planning has gazetted changes which enable accelerated assessment of planning applications for renewable energy facilities, utility installations, and associated subdivisions, to unlock investment and help Victoria meet its legislated emissions reduction, renewable energy, and net zero targets. This occurs in the context of new legislated emissions reductions targets for Victoria and requirements for the planning framework to have regard to climate change.
Key takeaways:
- Renewable energy facilities with at least 1 megawatt of installed capacity, utility installations (used to transmit, distribute or store electricity), and subdivisions necessary for these projects will be eligible for a fast-tracked planning permit approval assessment process through the Development Facilitation Program in the Department of Transport and Planning (DFP applications).
- These applications will be exempt from VCAT review (which historically caused substantial delays for many renewables projects).
- The government has indicated that applications may be decided within four months.
- Projects requiring an Environmental Effects Statement (EES) or other approvals will still be subject to the existing timelines for those processes. Given the lengthy timelines for those processes (particularly an EES), further consideration for fast-tracking renewable energy and transmission projects will be required to meet energy transition and net zero targets.
- The changes coincide with the introduction of revised targets under the Climate Change Act to achieve 65% of Victorian electricity generation through renewable energy facilities by 2030, and 95% of by 2035, with specific targets for energy storage facilities and offshore wind facilities. The Victorian Government has also introduced additional legislation to enable offshore wind energy connections, but this is yet to be passed.
On 4 April 2024, Victoria’s Minister for Planning gazetted Amendment VC261, effective immediately. This alters the Victoria Planning Provisions (VPP) expanding the operation of the Development Facilitation Program (DFP). The DFP provides accelerated assessments for priority projects’ planning permit applications. The amendment expands clause 53.22 ‘Significant Economic Development’ of the VPP to include applications for renewable energy facilities, utility installations, and associated subdivisions, making them eligible for fast-tracked assessment and decision-making.
The changes come in the aftermath of a series of cases, mostly in relation to permit approvals for solar farms, which were delayed by objections or the responsible authority’s decision not to grant the permit, resulting in review at the Victorian Civil and Administrative Tribunal (VCAT). However, in almost all cases, this ultimately resulted in the permits being issued without material changes to the permit applications. The Amendment was implemented to avoid these delays, and meet the pressing need for quicker decision-making, to support renewable energy and related utility installation, as part of the energy transition, and to meet Victoria’s legislated targets.
Below, we summarise the amendment and its implications.
Projects newly eligible for the fast-tracked assessment process
Under clause 53.22, developments which are “significant economic developments” are eligible for fast-tracked assessment. The purpose of clause 53.22 is - ‘To prioritise and facilitate the planning, assessment and delivery of projects that will make a significant contribution to Victoria’s economy and provide substantial public benefit, including jobs for Victorians.’
Clause 53.22 has now been expanded to include renewable energy facilities with at least 1 megawatt of installed capacity, utility installations (other than data centres) used to “transmit or distribute electricity; or store electricity if the installed capacity is [at least] 1 megawatt”, and subdivisions in support of these projects.
“Renewable energy facility” includes wind and solar energy facilities, and any buildings, structures, or things used “in or in connection with the generation of energy by a renewable resource”. However, it does not include a facility “principally used to supply energy for an existing use of the land”.
“Utility installation” includes land used to “transmit, distribute or store power”, including power lines, substations, and batteries.
No fast-tracking (yet) where an EES or other approvals are also required
VC261 only operates to improve the assessment time frames for projects requiring a planning permit. It does not provide any fast-tracking for projects which also require an EES or other approvals (including approval under the EPBC Act). Given the lengthy timelines for those other processes (particularly an EES), further consideration for fast-tracking renewable energy and transmission projects will be required to meet energy transition and net zero targets.
Planning permits for the smaller projects[1] will still be assessed by the local council and subject to VCAT review.
How does the amendment change the planning permit application process?
DFP applications still need to undergo the planning permit application process, which is assessed by the Minister for Planning, or the Department of Transport and Planning (DTP), under delegation.[2]
The normal application requirements are still applicable, with a few key exceptions. Critically, despite still being subject to public notice requirements, these applications are exempt from VCAT review (which previously resulted in delays of up to two years).[3] This means that landowners and affected communities can make submissions which will be considered by the Minister, but cannot seek review of a decision to grant a permit at VCAT. This applies to all aspects of the planning scheme which applies to a particular project. For example, if a proposed site was partly covered by a Significant Landscape Overlay or a Heritage Overlay, the review rights for objectors under that overlay have also been removed[4].
Additionally, unlike other significant economic development applications, applications for renewable energy facilities or utility installations will not need Invest Victoria to confirm the likely financial feasibility of the project. The Minister may also waive or vary height controls, and any other application requirement in the planning scheme if in the opinion of the Minister the information is not relevant to the assessment of the application. This will require proponents to discuss the requirements for its planning application carefully with DTP before submission. These applications may be referred by the Development Facilitation Program to a Standing Advisory Committee. However, the Minister has indicated that in practice applicants can expect turnaround times to be within four months,[5] suggesting that any such referrals are unlikely to be made for a lengthy hearing.
New requirements for mandatory consideration of Victoria’s climate change policies and obligations, for decisions about the use and development of land
On 26 March 2024, the Climate Change and Energy Legislation Amendment (Renewable Energy and Storage Targets) Act 2024 (Victoria) (CCELA Act) received Royal Assent.
Part of the CCELA Act has commenced, being the part which sets out the offshore wind energy targets and the energy storage targets[6]. This provides support for battery and offshore wind industries.
However the remainder of the CCELA has not yet commenced, the date for this is not yet known but will be no later than March 2025 though can be proclaimed earlier.
When Part 3 of the CCELA Act commences it will expand the objectives of the planning framework to require “explicit consideration of the policies and obligations of the State relating to climate change , including but not limited to greenhouse gas emissions reduction targets and the need to increase resilience to climate change, when decisions are made about the use and development of land”. The ‘emissions reduction targets’ referred to are the interim and long term targets set out in the Climate Action Act (set out below). Planning decisions need to have regard to these overall targets, but are not explicitly required to have regard the separate targets made for energy storage and offshore wind industries which have been made in Part 4 of the CCELA Act to be inserted into the Renewable Energy (Jobs and Investment) Act 2017.
Change is also made in relation to the preparation of planning scheme amendments. Under a new section 12(2A) of the Planning and Environment Act 1987 (PE Act), planning authorities must now have regard to emissions reduction targets and any significant risk to any use or development envisaged by the scheme or amendment that arises from, or is likely to arise from, the impacts of climate change[7]. However, this will be subject to the making of Ministerial directions. At this stage we do not have the details of what will be in these directions, but they may set out circumstances in which the planning authorities must have regard to a matter relating to climate change, matters which planning authorities are not required to have regard to, and how the requirement to consider climate matters is to be met[8]. While the Act does not impose a requirement to take emissions reductions targets into account when determining a planning permit application (under section 60 of the PE Act)[9], we would expect that over time as planning schemes are amended these targets will be a key consideration for future development.
To account for planning scheme amendments which are already close to gazettal, transitional provisions in the CCELA will exempt some planning scheme amendments from the application of the new mandatory considerations in certain circumstances such as when notice has been given of the amendment[10].
What are the emissions reduction targets?
The emissions reductions targets have been revised by the CCELA. Once commenced, the Climate Change Act 2017 (Vic) will be known as the Climate Action Act, and will contain these targets:
- 28%-33% reduction in greenhouse gas emissions (below the State’s level of emissions in 2005) by the end of 2025,
- 45-50% reduction by the end of 2030, and
- 75%-80% reduction by 2035, with interim targets for 2040 and 2045 to be determined later.
- The “long-term emissions reduction target” has also been revised, to aim for net zero greenhouse gas emissions by 2045. This moves the legislated deadline for achieving net zero forward by five years, from 2050.
Proposed legislation to enable offshore wind energy (connection infrastructure)
The Energy and Public Land Legislation Amendment (Enabling Offshore Wind Energy) Bill 2024 is progressing through the Victorian Parliament[11].
If passed, this legislation will enable licences over public land to be granted for up to 21 years for purposes relating to offshore wind. It can only apply to the Victorian jurisdiction, so as a result will mainly facilitate transmission and ancillary infrastructure as the offshore turbines are likely to be located in Commonwealth marine areas[12].
The bill would amend the Land Act 1958, Crown Land (Reserves) Act 1978, Forests Act 1958, National Parks Act 1975 and the Electricity Industry Act 2000. Approvals to use public land (terrestrial and up t three nautical miles from the coast) under these pieces of legislation will be required to connect the offshore wind to the Victorian grid. This bill enables proponents to undertake site feasibility investigations for connections. We anticipate that one of the key State approvals for an offshore wind project will be a consent under the Marine and Coastal Act to use land (and the seabed) for infrastructure, but we have not seen an amendments to that Act or any template consents at this stage.
If you have any questions about the application of these changes to your project, please contact us.
Projects with less than 1 megawatt of installed capacity.
As has been the case since VC161 (which we reported on here).
Clause 53.22-4
Section 2 CCELA. These targets include that by 2035, 95% of electricity generated in Victoria to be generated by means of facilities that generate electricity renewable energy sources or converting renewable energy sources into electricity. In addition, energy storage targets are that by 2030 Victoria should have energy storage facilities with combined capacity to store and dispatch at least 2.6 gigawatts at any time with that increasing to 6.3 gigawatts by 2035. For offshore wind energy targets, Victoria is to have capacity to generate not less than 2 gigawatts of electricity in the offshore area of the Victoria by converting wind into electricity by 2032, increasing to 4 gigawatts by 2035 and 9 gigawatts by 2040. These targets are inserted by the CCELA into the Renewable Energy (Jobs and Investment) Act 2017.
New section 12(2A) Planning and Environment Act 1987 inserted by section 17 CCELA.
New section 12A Planning and Environment Act 1987 inserted by section 18 CCELA.
The Explanatory Memorandum for the CCELA says that “the purpose of the new 12(2A) is to require consideration of these matters in planning scheme amendments but not to require responsible authorities to consider such matters when determining whether or not to issue planning permits” This is supported by the inclusion of State policies on climate change being included as an objective for the planning framework, but not included as one of the objectives of planning in Victoria. Objectives of planning must be taken into account in all permit decisions.
New section 230 Planning and Environment Act 1987 inserted by section 19 CCE
The bill has passed the Legislative Assembly on 21 March 2024
Turbines for offshore wind farms proposed in the Gippsland area under the Offshore Electricity Infrastructure Act 2021 (Cth) are likely to be in the Commonwealth marine areas, but project locations will be confirmed after feasibility licences are granted by the Federal Government later in 2024.