MINISTERIAL POWERS OF INTERVENTION IN PLANNING AND HERITAGE MATTERS REASONS FOR DECISION TO USE POWER OF INTERVENTION VICTORIA PLANNING PROVISIONS AND ALL PLANNING SCHEMES IN VICTORIA AMENDMENT VC113 The Planning and Environment Act 1987, the Heritage Act 1995 and the Victorian Civil and Administrative Tribunal Act 1998 provide for the intervention of the Minister for Planning in planning and heritage processes. In using my powers of intervention I have agreed to: Make publicly available written reasons for each decision; and Provide a report to Parliament at least every twelve months detailing the nature of each intervention. REQUEST FOR INTERVENTION 1. No one other than the Minister has proposed or requested this intervention. WHAT POWER OF INTERVENTION IS BEING USED? 2. I have decided to exercise my powers to exempt myself from all the requirements of sections 17, 18 and 19 of the Planning and Environment Act 1987 (the Act) and the regulations in respect of Amendment VC113 to the Victoria Planning Provisions (VPP) and planning schemes. 3. Section 20(4) of the Act enables the Minister for Planning to exempt an amendment which the Minister prepares from any of the requirements of sections 17, 18 and 19 of the Act or the regulations. 4. In seeking to exercise this power, section 20(4) of the Act requires that the Minister must consider that compliance with any of those requirements is not warranted or that the interests of Victoria or any part of Victoria make such an exemption appropriate. BACKGROUND 5. The following amendments were introduced into all Victorian planning schemes to give effect to the Government’s current policy on wind energy facility development: VC78 (15 March 2011) provided 12 month transitional arrangements for minor matters pertaining to existing planning permits to enable the industry to adjust to the new planning requirements, such as the introduction of the new New Zealand Standard NZS6808:2010, Acoustics – Wind Farm Noise (2010 New Zealand noise standard). VC82 (29 August 2011) prohibited wind farms in certain circumstances including, where a proposed turbine was located within two kilometres of an existing dwelling unless the consent of such dwelling owners is obtained. The transitional arrangements also exempted certain existing planning permits from this prohibition. VC91 (31 July 2012) provided clarity in regard to the requirements relating to obtaining written consent from dwelling owners within two kilometres of a turbine. Page 1 of 3 6. The wind energy planning provisions at Clause 52.32 require applications for permits, including applications to amend a planning permit, to be accompanied by the written consent of dwelling owners within two kilometres of a proposed turbine. 7. Transitional arrangements were provided at Clause 52.32 for permits issued before 15 March 2011 until the 15 March 2012, except for those permits issued by the Minister for Planning under Division 6 of Part 4 of the Act. 8. The consequence is that a proponent holding an existing planning permit must seek the consent of dwelling owners within two kilometres of a proposed turbine to enable an amendment to the planning permit to be considered. This affected permits issued by the Minister for Planning from the 15 March 2011 and council issued permits from the 15 March 2012. 9. This effective prohibition of an amendment to existing planning permits, such as to upgrade the approved turbine technology, was unintended. 10. Enabling proponents to upgrade the turbine technology provides the opportunity to reduce noise impacts, the total number of turbines and overall amenity impacts. Efficiency gains through use of modern technology will also likely impact on the future cost of power generation and electricity prices. 11. Amendment VC113 enables minor amendments to be considered to a planning permit issued prior to 15 March 2011 while supporting the Government’s policy position on wind energy development by: Exempting a proponent applying for an amendment to a planning permit from having to provide written consent from a dwelling owner within two kilometres of a proposed turbine provided the amendment: - does not increase the number of proposed turbines - does not change the location of a proposed turbine so as to reduce the distance between any proposed turbine and an existing dwelling within two kilometres of the turbine. Exempting such amendments from third party appeal. 12. Proposals to amend planning permits will be required to meet current application requirements, including an assessment against the 2010 New Zealand noise standard. This ensures that proposed upgrades to technology or other changes meet current best practice standards and do not further impact on affected residents. 13. Amendment VC113 will facilitate the completion of a number of wind energy facility developments benefiting the Victorian economy. BENEFITS OF EXEMPTION 14. The exemption will enable a prompt decision on the adoption and approval of the amendment which changes the VPP and local planning schemes to enable the holders of wind energy facility permits issued prior to 15 March 2011 the opportunity to amend their permits and proceed with the development. EFFECTS OF EXEMPTION ON THIRD PARTIES 15. The effects of exempting Amendment VC113 from the usual requirements would mean that potentially affected parties will not be formally notified of the amendment or have an opportunity to make a formal submission. 16. Planning permits issued prior to 15 March 2011 have already been subject to a public process including the consideration of the views of potentially affected parties. 17. An application to amend an existing planning permit may be subject to a public notification process at the discretion of the responsible authority, which may provide the opportunity for dwelling owners within two kilometres of a turbine to contribute their views on the proposal. 18. Where the Minister for Planning considers an application to amend an existing planning permit consultation with the relevant council may be undertaken. ASSESSMENT AS TO WHETHER BENEFITS OF EXEMPTIONS OUTWEIGH EFFECTS ON THIRD PARTIES 19. I consider that the benefits of exempting myself from sections 17, 18 and 19 of the Act outweigh any effects of the exemption on third parties for the following reasons: An opportunity is being provided to amend existing planning permits that would otherwise be prohibited without compromising the Government’s policy position on wind energy facility development. Through the amendment process the responsible authority has the discretion to notify the public of the proposed amendment, which may include nearby dwelling owners. REASONS FOR INTERVENTION 20. I provide the following reasons for my decision to exercise my power under section 20(4) of the Act. 21. I am satisfied that – Compliance with any of the requirements of section 17, 18 and 19 of the Act is not warranted because: a) Amendment VC113 facilitates a process whereby existing planning permit holders can apply to amend their permits in a minor manner, which will be subject to a full merit assessment. b) The responsible authority has the discretion to notify the public of an application to amend an existing permit, which may include nearby dwelling owners. The interests of Victoria or any part of Victoria make such an exemption appropriate because: c) The proposed provisions aim to facilitate an amendment process for minor amendments to existing planning permits without compromising the Government’s policy position on wind energy facility development. d) There is a need to provide a fair opportunity for those already approved wind energy facilities to proceed where they have inadvertently been impacted by VC78 and VC82. e) Victorians will benefit with improved efficiencies in turbine technologies, an increase in wind energy generation and increased opportunities for part time and ongoing employment. DECISION 22. I have decided to exercise my power to exempt myself from the requirements of sections 17, 18 and 19 of the Act and the regulations in respect of Amendment VC113 to the Victoria Planning Provisions and all planning schemes. SIGNED BY THE MINISTER MATTHEW GUY MLC Minister for Planning Date: 17 July 2014