Australia is a signatory to the Paris Agreement and has embarked upon a radical transformation of its electricity infrastructure to be achieved by 2030. This requires significant investment in new infrastructure including 10,000 km of transmission lines to connect renewable energy and battery firming projects to the existing national electricity grid. This development is taking place within Renewable Energy Zones designated in the States and Territories. In this article, the authors question the contribution which land-use planning is making to building the resilience of this new infrastructure to climate-induced extreme weather events. We focus on the jurisdictions of New South Wales, Victoria and Queensland. Our analysis suggests that optimism in using land-use planning frameworks to build resilience in electricity infrastructure is overstated at present. This points towards an urgent need to develop a more robust strategy in future.

I. Introduction

Australia is a signatory to the Paris Agreement. Its current goal (based on its Nationally Determined Contribution) is to reduce greenhouse gas emissions by 43% below 2005 levels by 2030 and to reach Net Zero by 2050. In order to de-carbonise its economy, Australia, like many other nations, is aiming to rapidly transform its electricity infrastructure over the next decade. In 2022, the Australian Energy Market Operator (AEMO) adopted an Integrated System Plan outlining how this rapid transformation can be achieved. It aims for a nine-fold increase in utility-scale variable renewable energy capacity and 10,000 km of new transmission lines to connect geographically and technologically diverse generation and firming infrastructure with consumers.¹  These new generation, transmission and distribution assets will be situated primarily in designated Renewable Energy Zones (REZs) in the States.²  While these and other details of the transition are contested, it is clear that Australia’s electricity infrastructure has commenced on a journey of transformational change.

This transformational response to climate change is laudable but we know there is another dimension to the problem: that some degree of climate change is irreversible. One of the impacts of this unfortunate reality will be more frequent and more severe extreme weather events. Australia is no stranger to devastating extreme weather events and their impact has already been felt across all sectors of the economy including electricity infrastructure. For example, from 2009 to 2018, 95.6% of blackouts were caused by damage to infrastructure caused by storms or bushfires.³  In light of this evidence, the case for improving the resilience of new electricity infrastructure is compelling.

In this article, we describe how the regulatory framework for new electricity infrastructure in Australia currently addresses issues of resilience. We unpack the layers of Federal, state and local law and policy-making and evaluate the strengths and weaknesses of the existing framework. Our chosen focus is on land-use planning and development frameworks. Several reports have argued these frameworks provide a critical opportunity to ensure that resilience is factored into siting, design and development decisions.⁴  Nevertheless, after a detailed analysis, we argue that the jurisdictions of New South Wales, Victoria and Queensland are not using planning law effectively to site new electricity infrastructure out of harm’s way.

The discussion in this article proceeds in a cascading fashion – dealing first with the Federal framework, then with state and local regulations and then to actual State-based case studies which illustrate how these cascading layers relate to particular developments. From this analysis, we are able to highlight some of the strengths and weaknesses of the existing framework for ensuring resilience in Australia’s electricity infrastructure, and offer some recommendations for its improvement.

This analysis is timely and important given the intended scale and speed of Australia’s electricity transition. We believe Australia’s experience is also instructive for other jurisdictions. We invite discussion on comparative examples from other jurisdictions to foster mutual learning about an issue that will inevitably become both more urgent and more significant over the next years and decades.

II. The Need for Electricity Infrastructure Resilience

Recent extreme weather events and disasters have caused extensive damage to Australia’s electricity infrastructure. These include: the 2009 Victorian Black Saturday Bushfires;⁵  the 2010–2011 Queensland floods;⁶  the 2016 South Australian Black System Event 2016 where two tornadoes destroyed transmission lines causing the entire State of South Australia to be separated from the National Electricity Market (NEM);⁷  the 2019–2020 Black Summer Bushfires which burnt 17 million hectares across the States of New South Wales, Victoria, the Australian Capital Territory, Queensland, and South Australia;⁸  and the 2022 Summer Floods in Queensland and New South Wales, where rainfall was 2.5 to more than five times the monthly average.⁹

All of these extreme weather events and disasters wreaked havoc with electricity infrastructure. As just one example, the loss of power during the Summer Floods was significant in scale and duration and had a compounding effect on other services. Residents experienced a lack of power for between 13 days and three months. Essential Energy, the main utility in New South Wales, reported that a total of 69,603 customers were affected by power outages, including 1,408 customers on life-support equipment. Subsequently 7,043 properties were de-energised for safety considerations. Essential Energy was unable to warn its customers of pending power outages. Widespread power outages created havoc for the recovery efforts and had cascading consequences on other essential services, including telecommunication, water, waste disposal and health.¹⁰

Building infrastructure resilience is often touted as a potential solution to protect Australia from the impacts of these events. The AEMO identified seven specific characteristics of a resilient power system in its 2020 Integrated System Plan,¹¹  including:

• asset design and construction that is able to physically withstand hazards;
• flexibility in system operation to respond to events;
• control systems and protection schemes/settings that are fit-for-purpose and work well together despite increasing complexity;
• ability for the system to withstand separation or islanding events in a stable manner;
• diversity in geographic location of assets and generation sources to mitigate the impact of hazards that affect a specific location or generation type;
• sufficient redundancy in fuel to withstand sudden “shocks”; and
• functional weather and output prediction for renewable resources.¹²

From a land-use planning perspective, the most relevant recommendations are: ensuring and approving electricity infrastructure asset design and construction that is able to physically withstand hazards; the need for diversity in geographic location of assets and generation sources so as to mitigate the impact of hazards that affect a specific location or generation type; and functional weather and output predictions for renewable resources.

III. Federal and National Initiatives for Resilient Energy Infrastructure

Given that Australia has a Federal system of government, we begin with an analysis of whether electricity resilience is required or indeed encouraged by the Federal government. In Australia, the Federal government’s competencies to legislate are limited to those expressly set out in s 51 of the Australian Constitution – the so-called Heads of Power. Climate, environment or energy are not expressly part of this list and consequently the Federal government’s competencies in this space, unless they can be linked to one of the Heads of Power,¹³ are limited and unclear.¹⁴  To address these limitations, Australia has a long history of cooperative federalism resulting in multi-jurisdictional co-operation between the Federal and State governments to achieve national outcomes – where these are required to address national environmental problems. These include in the areas of: ecologically sustainable development;¹⁵ pollution;¹⁶ environmental impact assessment;¹⁷ gene technology;¹⁸  carbon capture and storage;¹⁹ water resource management;²⁰ biodiversity;²¹ and energy,²² including electricity infrastructure, which will be expanded upon in more detail below. No such multi-jurisdictional framework exists for land-use planning, which is consequently highly diverse between the different States as will be seen in Part IV. We argue that there is no reason why the practice of cooperative federalism should not operate to develop these frameworks.

In relation to resilience generally, national co-operation and leadership have generated a number of relevant policy documents and strategic initiatives. We now consider these to analyse the extent to which they are directed at ensuring power system resilience, including their potential influence over land-use and planning.

A. Policy and Strategic Initiatives

The Federal government has been active in establishing commissions of inquiry, and producing reports, guidelines and policy statements in relation to extreme weather events, climate adaptation and resilience. For present purposes the most relevant documents are: the Royal Commission into National Natural Disaster Arrangements Report; the National Climate Resilience and Adaptation Strategy; the National Disaster Risk Reduction Strategy; and the Critical Infrastructure Resilience Strategy. As well as beginning to develop a national strategic direction, the Federal government has played a role in funding research and expanding the data base to facilitate consideration of resilience, including for electricity infrastructure.

1. Royal Commission into National Natural Disaster Arrangements Report

Each of the climate-induced disasters, described above, has been subject to an independent inquiry. One prominent example is the Royal Commission into National Natural Disaster Arrangements, commissioned by the Federal government after the Black Summer Bushfires. It released its Report in October 2020.²³ The Royal Commission calls for “big country thinking – a national response and national strategic leadership”²⁴ in the face of escalating disasters. Further, it found that the Federal government should take the lead in developing and coordinating long-term national resilience strategic policy, as it has done in other areas of environmental management. This is because of its ability to understand national circumstances, risks, and the impacts on all Australians. The Report concluded that the government’s capacity to address the complex and long-term strategic problems in disaster risk management and resilience should be increased. It also clearly recognised the constitutional limitations for the Federal government to act alone in this space, and instead called for national strategic decision-making about disaster management by the Prime Minister and state and territory Premiers and Chief Ministers – through a multi-jurisdictional forum such as the National Cabinet.²⁵ We now consider whether the Federal government has begun acting on these recommendations.

2. National Climate Resilience and Adaptation Policy Documents

The Commission’s recommendations, and the Federal government’s obligation under the Paris Agreement²⁶ to develop an Adaptation Plan, resulted in the government’s development of its central strategic document in the area of climate resilience – the National Climate Resilience and Adaptation Strategy 2021-2025.²⁷ The Strategy recognises that every level of government, as well as infrastructure owners, have a role to play in climate change adaptation and building resilience. It states that the only responsibility the Federal government assumes for itself is to provide strategic leadership and national information on climate science and information. State and territory governments should play an important role in adaptation because of their ability to use their land-use planning laws and because they have responsibility over their own investments in public infrastructure. It is acknowledged that local governments deal with the most immediate impacts of climate change, extreme weather events and disasters. Investors and owners of electricity infrastructure are recognised as having a vested interest in managing their own risks. The implication here is that utilities should be investing in infrastructure resilience even in the absence of any legal requirement that they do so. Noticeably absent is any intention on the part of the Federal government to develop and coordinate long-term nationally consistent planning frameworks to build resilience.

In 2021, Infrastructure Australia (IA), Australia’s independent but publicly-funded infrastructure adviser, also called for resilience to be embedded into land-use planning and development decisions.²⁸ It recommended that planning tools be reformed to specifically integrate “new and emerging data about disaster and climate risk, respond to comparable best practice and better account for place-based and localised opportunities, strengths and weaknesses”.²⁹ If this were to occur, the impacts, shocks and stresses of extreme weather events on electricity infrastructure could be mitigated. If not, they could be aggravated.³⁰ At the time of writing, the report observed that State land-use planning regimes had not included resilience as a key policy objective. In IA’s view this was due to a number of competing social, economic and environmental objectives, and the fact that planning tools are in any case limited in the way they deal with shocks and stresses.³¹

This article updates the IA’s findings and analyses how state governments have begun to integrate resilience measures into State land-use planning regimes. However, our analysis shows that this has occurred inconsistently. We will consider whether this weakens the system’s overall resilience³² as claimed, and whether it is most effective to consider resilience considerations at the planning phase of infrastructure delivery,³³ a further claim of the report.

3. Critical Infrastructure Resilience Strategy

Another potentially relevant strategy for electricity infrastructure is the Federal government’s 2023 Critical Infrastructure Resilience Strategy,³⁴ developed consistently with the Security Legislation Amendment (Critical Infrastructure) Act 2021 (Cth). Consistently with the multi-jurisdictional approach observed above, the Strategy provides a framework for a collaborative, shared responsibility approach for the Federal, state and territory governments as well as industry to enhance the security and resilience of critical infrastructure. It is supported by the Critical Infrastructure Resilience Plan 2023.³⁵ Both documents adopt an all-hazards approach to anticipating, preventing, preparing for, responding to, and recovering from such hazards. Again, we find that the Strategy expects critical infrastructure owners and operators to effectively manage their own risks and to ensure the continuity of their operations, including through building resilience. Strong industry–government partnerships are envisaged while the Strategy states that security and resilience will be strengthened though regulatory frameworks, tools and improved collaboration.³⁶

The Strategy specifically addresses the threats of extreme weather events to electricity infrastructure, and the chain of profound, long-term and cascading consequences on societies, communities, and interconnected infrastructure systems is acknowledged. These include impacts on: water supply and sanitation; public health services; the banking, finance and retail sectors; food supplies, transport and telecommunications networks; and government services.³⁷ However, the Strategy and Plan fail to take this much further and focus heavily on cyber security. Neither the Strategy nor the Plan mention land-use planning as a tool to build resilience in electricity infrastructure.

4. The Federal Government’s Role in Providing Information to the Electricity Sector

Consistently with the Federal government’s view, expressed in the National Climate Resilience and Adaptation Strategy, discussed above, that it should provide national information on climate science, it provided $6.1 million over three years to 2020–2021 to two of Australia’s premier science agencies, the Bureau of Meteorology and the Commonwealth Scientific and Industrial Research Organisation, to develop the Electricity Sector Climate Information (ESCI) Project. This Project aims to improve climate and extreme weather information for the electricity sector. It has delivered a package of new national climate datasets of relevance to the electricity sector, including: maximum and minimum temperatures; wind speeds; bushfire conditions; solar radiation; rainfall; and dam inflows. The data is produced at a scale of 1.5–12 km across the NEM, at sub-daily intervals, to the year 2100. This information is presented in a variety of formats including maps, summary tables and time series plots, supported by guidance material.³⁸

Another new and important planning tool is the Australian Flood Risk Information Portal³⁹ which makes flood information accessible from a single online location. It includes a database of flood study information and metadata (the Australian Flood Studies Database) and provides access to authoritative flood maps and flood studies, as well as information about surface water observations derived from the analysis of satellite imagery. The information on the Portal is continually updated.

All of this information should assist planning authorities and infrastructure owners to appropriately site the significant new infrastructure needed to deliver the transformational change envisaged by AEMO’s 2022 Integrated System Plan, discussed above. However, in all of the legislation and planning instruments discussed below there is no explicit reference to the insights contained in the ESCI project or the Flood Portal. Of course, this does not mean that the information has not been considered but it is not readily apparent.

B. The National Electricity Market and Resilience

To complicate the Australian situation, in addition to the land-use planning frameworks which will be considered in detail at Part IV, decisions about the location of generation and network infrastructure are made within the context of the NEM for the majority of Australian States.⁴⁰ This includes the three comparative case studies employed in this article. Power system resilience was identified as a major task for the NEM in the 2017 independent Finkel Review into The Future Security of the National Electricity Market,⁴¹ which, inter alia, calls for leadership by the Federal government to assess the resilience of the NEM.⁴²

The NEM is governed by the National Electricity Law, which is implemented in each of the participating State legislations as mirror legislation.⁴³ In other words, the NEM relies on uniform application of the NEL in each of the States. Responsibility for rule making and more generally market developments sits with the Australian Energy Market Commission (AEMC).⁴⁴ Further institutions include the AEMO, overseeing the wholesale market. One of AEMO’s statutory functions is that of the National Transmission Planner.⁴⁵ The Australian Energy Regulator (AER) is responsible for the economic regulation of wholesale market and networks and has enforcement functions.⁴⁶

All regulatory decision-making in the NEM is guided by the National Electricity Objective (NEO), set out in s 7 of the National Electricity Law, which states that the objective of the NEL is:

[T]o promote efficient investment in, and efficient operation and use of, electricity services for the long term interests of consumers of electricity with respect to (a) price, quality, safety, reliability and security of supply of electricity; and (b) the reliability, safety and security of the national electricity system.⁴⁷

While there are clear relationships between security, reliability and resilience, resilience is different from both security and reliability. The 2017 Finkel report defined a secure power system as “one that is able to continue operating within defined technical limits, even in the event of the disconnection of a major power system” and a reliable power system as “one in which there is sufficient generation and transmission capacity to meet all grid demand”.⁴⁸ Grid operators are used to thinking in terms of reliability, but resilience presents fundamentally different challenges.⁴⁹ Grid reliability focuses on common failures to determine the frequency and duration of outages. These are usually high probability events of shorter duration which affect smaller regions. Resilience, on the other hand, deals with low probability, high impact events that may cause the entire system to collapse.⁵⁰ Estimating the likelihood of such catastrophic grid failure is difficult due to their rare occurrences and lack of historical data.⁵¹ Given these differences, the introduction of a separate climate resilience objective and its potential impact, should be a consideration for future research.⁵²

AEMO publishes biennial Integrated System Plans (ISP), which provide strategic perspective for transmission network planning 20 years in advance, the most recent of which is the 2022 Integrated System Plan⁵³ which sets out its proposed trajectory for Australia’s rapid energy transformation towards net zero emissions. The goal is to provide consumers with reliable, secure and affordable power by “enabling low-cost firmed renewable energy and essential transmission”. REZs will be critical to achieving this transition.

1. Renewable Energy Zones and Resilience

The ISP first identified the need to develop and suggested locations for specific REZs in 2018.⁵⁴ These were then ultimately developed together with the States, with details for each of the comparative jurisdictions set out in Part IV. Notably, considerations for the assessments of specific REZ locations included “resource quality and diversity”, “diversity and demand matching”, needed “transmission development to access a REZ”, as well as electrical engineering considerations such as system strength and network losses.⁵⁵ Resilience considerations in particular for transmission network investment did feature in the ISP process to a limited degree. The ISP 2018 provided that:

The strategic design and selection of a transmission route is critical. ... A view to future climate risk resilience will also influence route selection, with projected increases in extreme weather events and bushfires increasing the value of route diversity.⁵⁶

The REZ planning process from an electricity market perspective⁵⁷ is set out in the National Electricity Rules (NER). This is the process identifying the REZ – and the network connections needed to enable the REZ. It is at this level that some location decisions are already made – whereas land-use planning permits are usually assessed much later, when these commercially relevant decisions are already made. The NER contain specific provisions for joint REZ planning between the participating State and AEMO, where transmission development is being planned, and the provision of REZ design reports. As a first step, the transmission network service provider (TNSP) is to engage in its “preparatory activities” to design and investigate the costs and benefits of projects. These activities include: a “detailed engineering design; route selection and easement assessment work; cost estimation based on engineering design and route selection; preliminary assessment of environmental and planning approvals; and council and stakeholder engagement.”⁵⁸ A REZ “design report” must also be prepared to specify: a description of the proposed location for the REZ; the minimum generation capacity, in MW projected to be developed in the REZ; the forecast date or dates by which tranches of generation capacity may be developed; the proposed location or locations where the new transmission assets will connect to or become integrated with the existing transmission network; and any other matters that AEMO considers relevant.⁵⁹

The planning body of the participating State must also prepare and publish a REZ design report which must ensure that the TNSP has undertaken the required preparatory activities. This REZ design report must set out a plan for the development of the transmission network, in one or more REZ stages, which: reflects the REZ design parameters; is consistent with the achievement of power system needs; contributes to the efficient development of the power system; has regard to the anticipated location and configuration of connection assets, together with any associated infrastructure, for each of those REZ stages. In addition, the planning body must identify preparatory activities outputs; the reasons for the proposed engineering design; and, if appropriate, an assessment of potential variations. Public consultation with stakeholders and the receiving of submissions is a requirement.⁶⁰

In summary, while the high-level policy statements in the ISP do mention the need to consider infrastructure resilience to climate impacts, the detailed rules for REZ implementation in the NER do not expressly require this.

2. Resilience Considerations as Incidental to Network Provider Functions

Beyond high-level REZ planning, the NEM frameworks include a limited number of mechanisms to ensure that prudent investment in climate-resilient networks is incentivised and that the costs of impacts of weather-related events on the network can be recovered.⁶¹ As funding approval for networks is linked to achieving reliability targets,⁶² network service providers have an interest to ensure some resilience of their assets to extreme weather events and other climate impacts. However, proposed network expenditure for resilience measures will need to be approved by the AER, to ensure that there is no overinvestment into networks, as approved capital and expenditure funding for the regulated network businesses will be spread across the entire consumer base. The regulator will therefore have to balance the risks of not investing against the risks of overinvesting. The current guidelines for resilience investment require a demonstration that:

1. there is a causal relationship between the proposed resilience expenditure and the expected increase in the extreme weather events;
2. the proposed expenditure is required to maintain service levels and is based on the option that likely achieves the greatest net benefit of the feasible options considered; and
3. consumers have been fully informed of different resilience expenditure options, including the implications stemming from these options, and that they are supportive of the proposed expenditure.⁶³

This provides a high bar for network service providers who would like to proactively invest in resilience, which shifts some of the responsibility to ensure climate-resilient investments to the planning frameworks, which we now discuss.

IV. The Role of State-based Planning Law in Building Resilience in Electricity Infrastructure

Governments, both state and federal, have begun to develop resilience frameworks for Australia. However, these have relatively little to say about land-use planning frameworks for resilient electricity infrastructure. Noting that planning law frameworks look quite diverse across Australia, we next turn to consider whether and how the planning regimes in the jurisdictions of New South Wales, Victoria and Queensland deliberately set out to ensure the resilience of developments – in particular of electricity infrastructure.

A. Planning Law Pathways for Assessing Electricity Infrastructure in New South Wales

In New South Wales, the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) is the overarching legislation which sets the planning framework for the assessment, approval and carrying out of development and activities, including electricity infrastructure. Made under and subordinate to the EP&A Act, are various environmental planning instruments known as State Environmental Planning Policies (SEPPs) and Local Environmental Plans (LEPs), which contain more detailed controls for the assessment, approval and carrying out of development and activities. Most electricity infrastructure projects in New South Wales are carried out either as State significant infrastructure (SSI) or Critical SSI under Div 5.2 of Pt 5 of the EP&A Act or under Div 5 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (NSW) (Infrastructure SEPP). Projects that are considered by the Minister to be essential to NSW for economic, environmental or social reasons are declared as Critical SSI under s 5.13 of the EP&A Act. Other generation projects (such as solar and wind farms) that have a capital investment value of more than $30 million are classified as State significant development (SSD) under the State Environmental Planning Policy (Planning Systems) 2021.

Under Div 5.2 of the EP&A Act, SSI and SSD projects require Ministerial approval. To enable an application to be prepared and submitted for assessment, the Planning Secretary must prepare environmental assessment requirements (SEARs) which require the preparation of an environmental impact statement (EIS) and set out the matters the EIS must address. The Environmental Planning and Assessment Regulation 2021 (NSW) (EP&A Regs) also sets out the matters that an EIS must address, in addition to any other matters identified in the SEARs. Those matters include, relevantly:⁶⁴

• Feasible alternatives to the carrying out of the infrastructure, including the consequences of not carrying out the infrastructure.
• A description of the environment likely to be affected by the infrastructure and a detailed description of the aspects of the environment that are likely to be significantly affected.
• The likely impact on the environment of the infrastructure.
• Mitigation measures to avoid or reduce the impact of the proposed infrastructure on the environment.
• Reasons justifying the carrying out of the infrastructure, considering biophysical, economic and social factors, including the principles of ecologically sustainable development as set out in s 193 of the EP&A Regs.

There is no express requirement in the legislation for the consent authority to consider the impact of the environment on the infrastructure, although there is a requirement for the consent authority to consider “the suitability of the site for the development”.⁶⁵ This could, arguably, require the consent authority to consider the impact of the environment, insofar as the siting of the development is concerned, on the infrastructure and whether it is sited so as to be resilient to adverse climatic conditions.

Other environmental planning instruments which may otherwise apply to development, for example the State Environmental Planning Policy (Resilience and Hazards) 2021 (NSW) which contains controls limiting development in coastal areas and LEPs which limit development in flood prone areas, do not apply to SSI.⁶⁶ Similarly, some other statutory approvals which would ordinarily be required for development, for example, a bushfire safety authority under s 100B of the Rural Fires Act 1997 (NSW), do not apply to SSI.⁶⁷ If these statutory approval processes were not switched off for SSI, they could assist in enabling further consideration of the potential impact of the environment on proposed infrastructure.

In cases where other statutory approvals are required for particular SSI, for example, an environmental protection licence under the Protection of the Environment Operations Act 1997 (NSW), a consent under s 138 of the Roads Act 1993 (NSW) or a licence under the Pipelines Act 1967 (NSW), those approvals cannot be refused by the relevant government approval body^.68 The State Significant Infrastructure Guidelines which guide the preparation of documents, including the EIS, and the assessment of SSI, require that the EIS consider the “strategic context” for the proposed SSI, which includes hazards and risks, for example, flooding, bushfire, contaminated land, steep slopes, landslips, mine subsidence, coastal hazards and climate change.⁶⁹ Consideration of the strategic context can also lead, practically, to resilient infrastructure which is sited so as to appropriately deal with and mitigate against adverse climatic impacts.

This is the case notwithstanding the absence of an express legislative provision requiring a consent authority to consider the resilience of electricity infrastructure, for example arising from the likely impacts of climatic conditions such as bushfire and flood on proposed infrastructure. Rather, the focus of the express legislative provisions is on how the proposed infrastructure will impact the environment. However, as set out above, it is arguable that by considering the suitability of the site for the proposed development, a consent authority will necessarily need to consider the potential impact of the environment on proposed infrastructure, including whether it has been sited so as to mitigate against adverse impacts of climate change.

Once the EIS has been prepared and submitted, it is placed on public exhibition and provided to relevant public authorities for consultation. This consultation period is usually 28 days. Submissions made during that public consultation period are provided to the proponent and the Planning Secretary may require a response to the submissions.⁷⁰ The Planning Secretary must then prepare a report on the SSI to the Minister for the Minister’s consideration in determining whether or not to grant approval to the SSI.⁷¹ That report is to include:⁷²

• The EIS and any preferred infrastructure report.
• Advice from public authorities.
• A report or advice from the Independent Planning Commission.
• Any environmental assessment undertaken by the Planning Secretary or other matter the Planning Secretary considers appropriate.

In deciding whether or not to approve the SSI, the Minister is to consider:⁷³

• The Planning Secretary’s report and the reports, advice and recommendations contained in that report.
• Any advice provided by the Minister having portfolio responsibility for the proponent.
• Any findings or recommendations of the Independent Planning Commission following a review of the SSI.

It is conceivable that the Planning Secretary’s report or the findings or recommendations of the Independent Planning Commission may include recommendations as to the location of SSI to avoid bushfire prone or flood affected land or that the infrastructure be built to withstand those climatic events. However, there is no express statutory requirement that consideration be given to siting and building infrastructure to be resilient to climatic conditions, although as explained above there is a requirement for consideration to be given to the suitability of the site for the proposed development.

It is important to note that there is no merits appeal against a decision by the Minister to approve or refuse an SSI. A legal challenge is limited to judicial review proceedings in the Land and Environment Court of NSW, which must be brought within three months of the date of the decision to approve an SSI. To be successful in such proceedings, it must be established that the consent authority has made an error of law by, for example, failing to take into account a relevant consideration which was required by law to be taken into account. Such proceedings are usually difficult to successfully prosecute. In the context of resilience, it would need to be established that there was a legal requirement for the consent authority to have regard to the impact of the environment on the proposed development and that the consent authority failed to have regard to that. Judicial review proceedings cannot be brought in respect of Critical SSI, unless approved by the Minister.⁷⁴

1. Renewable Energy Zones in New South Wales

In 2018, the NSW Government released its “NSW Electricity Infrastructure Roadmap”, a plan to provide alternative energy generation sources as the State’s existing power stations come to their end of life. As part of the Roadmap, the NSW Government has identified five REZs in the following areas of the State:

• Central-West Orana;
• New England;
• South-West;
• Hunter-Central Coast; and
• Illawarra.⁷⁵

In May 2023, the NSW Government published a Network Infrastructure Strategy which sets a roadmap for the “practical coordination” of new network infrastructure to connect new energy generation and storage in the five REZs.⁷⁶ The Strategy focuses on setting the priorities for delivery of the infrastructure required to replace ageing coal-fired power stations, four of which provide for more than half of the State’s energy supply with those power stations scheduled to cease use in 2033.⁷⁷ The Strategy does not refer to the need for the new infrastructure to be resilient to changing climatic conditions, but rather refers to resilience in the context of building new infrastructure so New South Wales can be resilient to the closure of coal-fired power stations.

The Central-West Orana and New England REZs have been declared by the Minister for Energy and Environment under the Electricity Infrastructure Investment Act 2020 (NSW). The authority responsible for planning and delivery of the Central-West Orana and New England REZs is the newly created Energy Corporation of NSW (EnergyCo), a government controlled statutory authority.

EnergyCo’s responsibilities include:⁷⁸

• overseeing the preparation of the EIS, to enable the environmental impacts of the infrastructure project to be assessed;
• community and stakeholder consultation;
• compulsory acquisition of land and easements for the infrastructure; and
• appointing a network operator, through a tender process, to design, build, fund and maintain the infrastructure.

The Ministerial declarations for the Central-West Orana and New England REZs identify the intended network capacities, the broad geographical areas and the proposed infrastructure for the REZs.

The Central-West Orana REZ has an intended capacity of 3 gigawatts.⁷⁹ The general location of the Central-West Orana REZ was chosen having regard to the location of major renewable energy projects, for example the Orana Wind Farm south of Dunedoo being developed by Acciona, land use, bushfire and flood prone land and other environmental planning issues.⁸⁰

The New England REZ is proposed to have a capacity of 8 gigawatts.⁸¹ Its location was selected having regard to the location of the State’s best hydro sites, including the Oven Mountain Pumped Hydro project which has been declared as Critical SSI⁸² and its proximity to existing transmission lines with connections to the NSW east coast, Upper Hunter and Queensland.⁸³ It does not appear that the location was selected having regard to bushfire or flood prone land, which suggests the future resilience of proposed infrastructure in the REZ to adverse climatic conditions was not a factor in the decision-making process.

2. Case Study 1: Electricity Transmission Infrastructure Project

It is relevant to examine a proposed transmission project to see whether resilience has been considered in the planning assessment and decision-making process at the project level. The transmission project for the Central-West Orana REZ is proposed to comprise the construction and operation of high-voltage electricity transmission infrastructure to connect energy generation and storage projects within the region to the existing electricity network.⁸⁴ The transmission infrastructure project will comprise the following:⁸⁵

• Two new double circuit 500 kilovolt (kV) transmission lines, with support towers, between the existing network at Wollar and the proposed substations at Merotherie and Elong Elong (called the “Primary Infrastructure”). The towers are proposed to be between 45 and 70 metres high.⁸⁶
• New circuit 330 kV transmission line connecting the new 500 kV transmission line and renewable energy generation and storage projects to the REZ (called the “Secondary Infrastructure”).
• New switching station at Wollar, adjacent to Transgrid’s existing substation.
• New substations at Merotherie and Elong Elong. The substations will capture energy from renewable energy generators in the area and feed that into the transmission lines connecting to the National Energy Market.⁸⁷ Ancillary infrastructure such as site offices, workforce accommodation camps, internal roads and gride connection to the transmission network.

EnergyCo is the proponent for the network infrastructure and responsible for the location of the substations or energy hubs and the route of the transmission lines.⁸⁸ Each energy project which connects into the network infrastructure will be the subject of a separate application by the proponent of that project and the project will be subject to separate environmental assessment and approval.

According to the Government’s Project Overview publication,⁸⁹ the following factors have been considered in selecting the proposed location for the hubs and the route for the transmission lines:⁹⁰

• proposed location for new generators;
• land use – both existing and proposed;
• bushfire and flood prone land;
• other environmental planning issues; and
• time and cost for construction.

The consideration of bushfire prone and flood prone land suggests that the future resilience of the infrastructure to some adverse climatic conditions has featured as part of siting the hubs and proposed transmission lines.

The transmission infrastructure corridor will be sited away from agricultural land and instead be sited through areas of land used for mining.⁹¹ It will comprise a length of 89km for the Primary Infrastructure and 160km for the Secondary Infrastructure.⁹² The transmission infrastructure will be carried out in four local government areas and the project will occur on land within the following eight types of land-use zones:⁹³

• Primary Production. According to the Scoping Report, the majority of the land comprises this zone.
• Village.
• Forestry.
• Large Lot Residential.
• National Parks and Natures Reserves.
• Environmental Management.
• Heavy Industrial.
• 'Infrastructure.

The Scoping Report dated September 2022 prepared by EnergyCo⁹⁴ indicates that construction of the project is to commence in the second half of 2024 and will take approximately three years to complete.

3. Does the Planning Legislation in New South Wales Enhance the Resilience of This Project?

The project was declared as Critical SSI and has been assessed and determined under Div 5.2 of Pt 5 of the EP&A Act.

On 7 October 2022, the Planning Secretary issued its SEARs for the project. The SEARs set out the matters which must be addressed in the EIS, including, relevantly:⁹⁵

• An assessment of the potential flooding impacts and risks of the project.
• Bushfire risks, having particular regard to emergency egress and evacuation routes and compliance with Planning for Bush Fire Protection 2019.
• Consultation with operators of pipelines where the project is located adjacent to or on land containing high pressure gas pipeline corridors.
• Mine subsidence.

While the SEARs require consideration of flooding impacts and bushfire risks, albeit predominantly in relation to egress and evacuation routes, the Scoping Report recommends that appropriate Asset Protection Zones be created and maintained around the transmission infrastructure to minimise the risks from bushfire, having regard to relevant Australian standards, guidelines and building codes.⁹⁶

In relation to flooding, the Scoping Report explains that structures will be designed so as to not impede water flows.⁹⁷

The Scoping Report also expressly states that a “standard climate change risk assessment for the project” will be incorporated into the EIS, with identification of, relevantly:⁹⁸

• climate related impacts and parts of the project which may be vulnerable to those impacts; and
• current and future controls which may increase the “resilience” of the project to climate change.

The EIS for the transmission project was placed on public exhibition between 28 September and 8 November 2023.

The EIS for the project notes that the effects of climate change have the potential to impact the proposed infrastructure, with the infrastructure being exposed to low to medium extreme heat events and flooding and low to high bushfire events. Proposed adaption and mitigation measures will be developed in a climate change risk assessment report which will be carried out during further design and development of the project.⁹⁹ So far, this case study demonstrates that the resilience of proposed infrastructure to some adverse climatic conditions is being considered insofar as the siting of the proposed infrastructure is concerned having regard to, for example, bushfire and flood risks.

4. Concluding Comments and Observations on Planning Framework in New South Wales

While those who yearn for certainty and consistency in approach may advocate for changes to the legislative regime to require the express consideration of climate resilience in the siting of electricity infrastructure, in practice, this is, so far, occurring on a project-by-project basis in New South Wales. If any legislative change was to be proposed, one option could be the introduction of a requirement that the EIS give express consideration to building climate-resilient electricity infrastructure. This may involve consideration of the following:

• Whether the proposed infrastructure is sited so as to minimise the adverse impacts of climatic conditions (as far as reasonably practicable) on the infrastructure or whether the infrastructure can be designed so to as reduce/mitigate against those impacts.
• Preparation of a Plan of Management to ensure the ongoing management and maintenance of the infrastructure over time. This could be imposed as a condition of consent by the Minister under s 5.19(3) of the EP&A Act.
• The owner/operator presenting an annual report to the regulator setting out measures taken to protect the infrastructure/ asset. This could be imposed as a condition of consent by the Minister under s 5.19(3) of the EP&A Act.

B. Planning Pathways for the Assessment of Electricity Infrastructure in Victoria

In Victoria, the Planning and Environment Act 1987 (Vic) (PEA) is the overarching legislation which sets the planning framework for the assessment, approval and carrying out of development and activities, including electricity infrastructure.

The PEA contains a series of high-level objectives in s 4 including in particular the following objectives which are relevant to climate-resilient infrastructure:

(a) to provide for the fair, orderly, economic and sustainable use, and development of land;
(b) to provide for the protection of natural and man-made resources and the maintenance of ecological processes and genetic diversity;
(e) to protect public utilities and other assets and enable the orderly provision and co-ordination of public utilities and other facilities for the benefit of the community.¹⁰⁰

The planning framework, while administered by local government (the councils), is highly coherent across the whole of the state. For each council area a comprehensive planning scheme applies – comprised of an ordinance and the associated maps. The majority of the written content of each of the planning schemes is comprised of identical State Planning Policy (SPP) content in every scheme – the Victorian Planning Provisions (VPP).

Together with the PEA objectives, the VPP become part of each individual planning decision as they need to be considered by the responsible planning authority, usually the council.¹⁰¹ It is noteworthy that for big energy projects, the minister, rather than the local council, is the responsible authority.¹⁰² This shift of responsibility from local government to the minister was introduced in 2019 “to reduce the burden on councils and provide for consistent decision-making”.¹⁰³ This theme of ministerial, rather than local planning decision-making for big infrastructure projects, is also apparent in New South Wales where projects are declared “critical infrastructure”.

In addition, the responsible authority, when assessing a planning application, considers “any applicable policy, strategy, code or guidelines”.¹⁰⁴ As will be seen, relevant guidelines exist inter alia for wind and solar installations. Finally, s 60 of the PEA requires the authority to consider:

any significant effects which the responsible authority considers the use or development may have on the environment or which the responsible authority considers the environment may have on the use or development.¹⁰⁵

This phrasing is unique to Victorian law, and opens opportunities for in-depth consideration of future climate impacts, but no case law or planning panel reports have so far interpreted the wording.

In June 2022, Specific Planning Regulations were introduced as an amendment to the VPP. These integrated climate resilience considerations into a number of relevant clauses. Specific clauses in the VPP interfacing with infrastructure resilience require the responsible authority to consider climate risk including coastal inundation,¹⁰⁶ bushfire risk¹⁰⁷ and flood risk.¹⁰⁸ For example, cl 13.01 (climate change impacts) requires planning decision-makers to “adapt to the impacts of climate change through risk-based planning”, “identify risk areas”, and “integrate land use planning with emergency management decision making” and “site and design developments to minimise risk ... from natural hazards”. In New South Wales, State Significant Infrastructure Guidelines require consideration of similar issues in the preparation of environmental impact assessment, but are not similarly embedded into planning decision-making.

Clause 19.01 (Energy) now expressly requires planners to “[e]nsure energy generation, storage, transmission and distribution infrastructure and projects are resilient to the impacts of climate change”.¹⁰⁹

In addition, new Guidelines have been enacted requiring the responsible authority to take into account the relevant guidelines – in particular the following:

• Solar Energy Facilities: Design and Development Guideline (August 2019);
• Development of Wind Energy Facilities in Victoria: Policy and Planning Guidelines (November 2021);
• Victoria’s Climate Change Strategy (Department of Environment, Land, Water and Planning, May 2021).

The latter contains a more general commitment to future climate resilience of communities and the built environment. The more specific guidelines do, however, mostly look at how the planned facilities impact their environment, not how the changing environment impacts them.

In addition to the planning process, for big projects, the assessment of these environmental impacts of effects is undertaken in the form of an Environment Effects Statement (EES) under the Environment Effects Act 1978 (Vic). The Minister decides whether an EES is required which is usually the case if:

• there is a likelihood of regionally or State significant adverse effects on the environment,
• there is a need for integrated assessment of potential environmental effects (including economic and social effects) of a project and relevant alternatives, and
• normal statutory processes would not provide a sufficiently comprehensive, integrated and transparent assessment.¹¹⁰

The EES will be provided to the relevant decision-makers and where the minister determines that an EES is required, the permit decision will not be made without the EES provided.¹¹¹ The EES legislation or ministerial guidelines¹¹² are silent on resilience assessment.

1. Renewable Energy Zones in Victoria

The State of Victoria is currently massively expanding its investment into both network and large-scale generation infrastructure. This is partially based in the designation of REZs – a project where state governments work together with the AEMO, to designate zones to facilitate the development of renewable energy, as well as targeted investment in grid infrastructure. In February 2021 the Victorian Government released the Victorian Renewable Energy Zones Development Plan Directions Paper (February 2021), which established six REZ – in South-West Victoria, Western Victoria, Murray River, Central North, Ovens-Murray and Gippsland, respectively. Zones were selected based on a score card assessment in the 2018 ISP.¹¹³ Criteria for assessment included availability of renewable resources and their quality, network limitations and long-term market simulation scenarios.

The REZs seek to facilitate more timely connection of new renewable energy projects, including investment in network infrastructure. The latter is supported by recent amendments to the National Electricity (Victoria) Act 2005 (Vic),¹¹⁴ which allows departure from the NEM rules for network investment by Order of the Governor in Council.

The Victorian Government and the Australian Electricity Market Operator have identified potential immediate priority stage one transmission network upgrade projects to support existing and future renewable energy generation development in Victoria’s REZs.

The Federal government has now announced that they will provide funding for a rapid build out of the Victorian REZ, with details on funding arrangements to be confirmed.¹¹⁵

As large infrastructure investment, these generation and transmission projects will be subject to land-use planning law.

2. Case Study: Golden Plains Windfarm

A case study of a new wind farm development in Victoria demonstrates that resilience to future climate change is not yet a consideration for the planning approval of energy infrastructure projects in Victoria, although this is likely to change in the future.

The Golden Plains Windfarm in Victoria is currently at construction stage. When completed, this will be one of the biggest windfarms in Australia, with an installed capacity of 1330 MW planned and up to 228 individual turbines approved. The proponent, WestWind Energy Pty Ltd, started site monitoring and pre-feasibility studies as early as 2005. Since then, the project has gone through the planning permit application process as well as the provision of an environmental effects statement under the Environment Effects Act, as well as processes to address protected species, aboriginal heritage and native vegetation removal. Commonwealth approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) is also required, with the EES under Victorian legislation providing the necessary assessment process.

The project was referred to a planning panel to consider submissions to the combined planning permit and EES process. Resilience to climate change was not part of the assessment. Even in projects where facilities are planned in bushfire risk areas, such as another recent windfarm proposal in a bushfire prone area,¹¹⁶ it is the risk the project poses to communities and future fire-fighting efforts, rather than its resilience to these risks, which gets considered. The new clauses introduced in 2022 have not yet been discussed in planning panel documents – their impact remains to be seen.

3. Victorian Case Law on Resilience

There is a body of case law on councils taking climate impact into account for future developments – however mostly for residential developments.¹¹⁷ In Taip v East Gippsland Shire Council,¹¹⁸ Victorian Civil and Administrative Tribunal (VCAT) did consider the future impact of climate change on the energy infrastructure servicing the planned development. VCAT found that the council should have taken into account that rising sea levels and storm surges would make the future delivery if essential services to the site difficult.¹¹⁹

So far, however, a review of planning panel and VCAT decisions on the planning process for energy infrastructure itself shows little consideration of future climate impacts on the planned infrastructure. The highly relevant inclusion of cl 19.01.1S, discussed above, was very recent, so it remains to be seen how decision-makers will apply these requirements to the actual planning of future grids and generation installations. It should be noted that the planning permit (and often also an associated planning scheme amendment), is just one of the different legal and regulatory requirements for making siting decisions for energy infrastructure. Apart from the EES process and potentially also an EPBC approval requirement,¹²⁰ grid infrastructure investment requires a regulatory investment test,¹²¹ which takes into account the economic and energy system value of the proposed development. The planning panel for a planned development of an electricity substation in Melbourne expressly commented on the lack of integration between these processes, and asked for “the Minister for Planning consult with the Minister for Energy and Resources with the aim of improving integration between land use planning processes and the electricity network regulatory process”.¹²²

4. Concluding Comments and Observations on the Planning Framework in Victoria

Victoria has made a concerted effort to introduce resilience considerations into the land-use planning framework. How these new provisions in the planning schemes will be applied to individual project proposals remains to be seen. In addition, and especially notable in the context of this article, Victoria is seeking to introduce its own transmission planning framework, which may integrate transmission planning processes and land-use planning.

As part of accelerating the investment in REZ process, the Victorian Government is currently developing a Victorian Transmission Investment Framework.¹²³ The framework seeks to set out an approach to develop REZ in a way that:

• ensures the co-ordinated development of electricity transmission and renewable energy generation infrastructure to deliver energy affordability, reliability and security for Victorians;
• seeks to integrate land use, environmental impacts and community views earlier in the transmission infrastructure planning process to provide greater transparency for local communities and clarity for project delivery;
• reflects local values, emphasises benefits for hosting communities and Traditional Owners, maximises the benefits of renewable energy infrastructure and minimises negative impacts; and
• seeks to balance important considerations, such as environmental objectives and foster community support for new investment; and
• ensures the efficient provision of transmission services with respect to price, reliability and security.

This Framework will considerably change the way the current planning process for network infrastructure works in Australia and facilitate an earlier consideration of resilience. In particular, this new process is developing candidate REZ pathways which will include Strategic Land Use Assessment to “to considers key land use, environmental and community issues early in the transmission planning process”¹²⁴ and a Multi-Criteria Analysis to “incorporate broader qualitative, economic, social, cultural and environmental factors into determining where, when and how Victoria’s network should develop”.¹²⁵

This may mean climate resilience is considered much earlier, possibly even before a commitment to individual projects. The new transmission planning process is expected to inform later planning and environmental approvals.¹²⁶ The proposed changes will be integrated in legislation over the next years. They point to a need to assess resilience in a more holistic way, rather than just being undertaken for individual project proposals at planning permit stage.

C. Planning Law Pathways for Electricity Infrastructure in Queensland

In Queensland, the Planning Act 2016 (Qld) is the overarching legislation which sets the planning framework for the assessment, approval and carrying out of development. This Act seeks to promote resilient communities in its overall objectives. Section 3 states: “[M]aintaining the cultural, economic, physical and social wellbeing of people and communities includes – (i) creating and maintaining well-serviced, healthy, prosperous, liveable and resilient communities with affordable, efficient, safe and sustainable development.”¹²⁷ Further details are provided in the various planning instruments made under that Act. In particular, the State has made two general land-use planning instruments of relevance: the SPP and the State Development Assessment Provisions (SDAPs).

The SPP is Queensland’s pre-eminent, consolidated planning policy. It is a high-level planning policy but the Act requires councils to integrate the SPP provisions into their local planning schemes in ways that are compatible with local circumstances.¹²⁸ The SPP’s influence may be evident in a local planning scheme’s strategic plan, its mapping and overlays as well as various codes used for assessing development.¹²⁹ Should a local council’s planning scheme not adequately integrate the SPP policies (a matter determined by the State Government during the plan’s preparation), decision-makers will need to apply the default assessment benchmarks stated in the SPP in their decision-making on individual development applications.¹³⁰

Two of the five State interests covered by the SPP are relevant to this discussion – Planning for infrastructure (energy and water supply) and Planning for safety and resilience to hazards (natural hazards risk and resilience). The key State interest policies for energy infrastructure include:

• The development and supply of renewable energy at the regional, local and individual scale is enabled in appropriate locations.
• Development of major electricity infrastructure and bulk water supply infrastructure avoids or otherwise minimises adverse impacts on surrounding land uses and the natural environment.
• Existing and approved future major electricity infrastructure locations and corridors (including easements and electricity substations) ... “are protected from development that would compromise the corridor integrity, and the efficient delivery and functioning of the infrastructure”.¹³¹

The State interest policy dealing with natural hazards, risk and resilience, deals with bush fire, flooding, landslide, storm tide inundation and coastal erosion risks. The overall goal is to ensure natural hazards are adequately considered across all levels of the planning system.¹³² In more detail, the relevant State interest policies include:

• Development in bushfire, flood, landslide, storm tide inundation or erosion prone natural hazard areas should: (1) avoid the natural hazard area; or (2) where it is not possible to avoid the natural hazard area, mitigate the risks to people and property to an acceptable or tolerable level.¹³³
• Development in natural hazard areas should support and not hinder disaster management capacity and capabilities.¹³⁴
• Community infrastructure should be located and designed to remain functional during and immediately after a natural hazard event. Power stations, sub stations and major switch yards are recognised as essential community infrastructure.¹³⁵

In addition to these State interest policies, more specific building regulations apply in bushfire prone and flood hazard areas designated under the Building Regulations – these are areas selected by local councils that may or may not correspond with planning scheme natural hazard areas.¹³⁶

In addition to the SPP, particular development applications will be assessed against the SDAP if the Planning Regulation 2017 requires it.¹³⁷ The SDAP define the State’s interest in development assessment and include the assessment benchmarks the State Assessment and Referral Agency (SARA) will assess an application against on referral from a local council.¹³⁸ The SDAP consists of 25 codes. The main code of relevance to this discussion is SDAP code no 23 on Wind farm development. The purpose of this code includes, “Wind farms should be appropriately located, sited, designed, constructed and operated to ensure ... risks to people, property and quality of life are minimised by providing acceptable levels of ... resilience to natural hazards”^.139

The reference to resilience, however, is neither defined nor elaborated. The Code’s performance outcomes, for instance, give further details on how the purpose of the Code should be achieved. While there are several performance outcomes relating to acoustic amenity, there are no performance outcomes directly addressing the need for resilience.

There is no SDAP code for solar power development or other forms of renewable energy development. The State Government has, however, published two documents to assist local governments responsible for assessing solar farms: Solar Farm – Guidance for Local Government in Plan-making (2020)¹⁴⁰ and Solar Farm Guidelines (2018).¹⁴¹ These provide some guidance for dealing with specific risks. For example, the plan-making guidance makes reference to flooding and stormwater. It recommends a hydrological assessment be included in the assessment process to determine site and offsite impacts and to identify appropriate design and mitigation measures.142 Where there is a risk of bushfire impacts due to adjoining vegetation, the document recommends imposing development conditions requiring cleared bushfire buffers.1⁴³

Many development applications for solar farms will be assessed by local councils in accordance with the Planning Act. In making their decision, local councils must assess the application against a number of matters including any relevant assessment benchmarks identified in their local planning scheme (which might reference the afore mentioned guidelines); the applicable regional plan; the SPP if the SPP has not been appropriately integrated into the local planning scheme and the State-wide Planning Regulation.¹⁴⁴ Significantly, local councils are not permitted to consider their strategic plan or the overarching objective of the Planning Act, including the general objective of achieving resilient communities, when they are assessing code assessable development (which comprise the majority of applications).¹⁴⁵ They may, however, have regard to these matters when assessing impact assessable development, the assessment class generally reserved for more complex and/or more impactful development applications. Solar farms may fall into either assessment category at the discretion of each council.

A noteworthy feature of Queensland’s development assessment regime is that no particular consideration takes priority; assessment managers are encouraged to weigh and balance all the relevant considerations to arrive at a decision that “best serves the public interest”.¹⁴⁶ In this balancing exercise, full compliance with each and every assessment benchmark is not a requirement.¹⁴⁷ This means references to ensuring resilience in the applicable planning instruments provide no guarantee the matter will hold sway, or even feature meaningfully, in actual development approvals. If an application is assessed as code assessable development, the community will have no jurisdiction to question the merits of a decision. On the other hand, should development conditions be imposed to ensure a degree of tailored resilience, development applicants will have ready recourse to a number of judicial precedents striking out “unreasonable” development conditions.¹⁴⁸

Not all renewable energy projects will be assessed by local councils. Wind farm applications, for example, are now assessed exclusively by SARA applying SDAP State Code no 23 and having regard to some other matters including the strategic outcomes in a planning scheme.¹⁴⁹ The overall purpose of State Code no 23, as we have seen above, includes a requirement to reach an acceptable level of resilience to natural hazards. While compliance with an applicable code’s purpose is, in general, a pre-requisite to approval, SARA uses the SDAP to deliver a co-ordinated, whole-of-government approach to its assessment of development applications.¹⁵⁰ In cases where multiple state codes are triggered and the purpose statement of one or more of the codes is not considered to be achieved by the development, SARA will make a decision that best achieves and advances the purpose of the Act overall – meaning, once again, compromises are possible in any case of conflict.¹⁵¹

In addition to the two main assessment pathways identified under the Planning Act, there are some alternative assessment pathways under different Acts. If the complexity or size of a project justifies it, the State Government may assign the application to one of these alternative pathways. That may involve a declaration the proposal is to be treated as a co-ordinated infrastructure project under the State Development and Public Works Organisation Act 1971 (Qld) (SDPWO Act) or/and as prescribed development (critical infrastructure) under that Act.¹⁵² Although both these assessment pathways include some form of environmental impact assessment, neither identify resilience as a specific objective of decision-making and nor are they subject to the SPP or SDAP.

The recently released Energy (Renewable Transformation and Jobs) Bill, Exposure draft (described below) envisages another alternative assessment pathway for priority transmission investments identified in the proposed Queensland SuperGrid Infrastructure Blueprint. This assessment pathway will involve assessment by the Minister in consultation with Powerlink and, if the Minister so wishes, any other appropriately qualified person.¹⁵³ Further details are not yet available.

1. Renewable Energy Zones in Queensland

In October 2023 the Queensland Government introduced its Energy (Renewable Transformation and Jobs) Bill to Parliament.¹⁵⁴ This Bill proposes to enshrine in legislation the key elements of its Energy and Jobs Plan released in September 2022.¹⁵⁵ The main commitments are: to achieve three sequential renewable energy targets (50% by 2030; 70% by 2032 and 80% by 2035); to ensure 100% public ownership of distribution, transmission and deep storage infrastructure and more than 50% public ownership of generation infrastructure; and to establish a $150 million Job Security Guarantee Fund to provide access to training, employment opportunities or other benefits to support affected energy workers.¹⁵⁶ The Bill requires the Minister to prepare a Queensland SuperGrid Infrastructure Blueprint that will identify particular significant electricity infrastructure projects and describe how they help to meet optimal infrastructure pathway objectives.¹⁵⁷ Priority transmission investments may in future be subject to a separate, fast-track regulatory process (described above).

The Queensland Government has identified three REZs where high quality renewable resources can be developed in a co-ordinated way.¹⁵⁸ These regions offer good quality renewable energy resources and other characteristics suitable for renewable energy development.¹⁵⁹ Together, the Northern, Central and Southern QREZs cover most of the eastern side of the state. Expressions of interest in more than 140 projects have already been registered in these areas.¹⁶⁰ One of the largest developments to date is the Kidston Clean Energy Hub.

The Kidston Clean Energy Hub is located 280 km north-west of Townsville in Australia’s highest radiation zone (>241 MJ/m2 per day). Among other projects, it comprises:

• A solar farm capable of delivering 320 MW of solar power per hour developed in two stages;
• A wind farm capable of generating up to 285 MW of power per hour; and
• The Kidston Pumped Storage Hydro Project (K2H), with a storage capacity of 250 MW and an ability to be ramped up in less than 30 seconds.

The Kidston solar farm was granted planning approval by Etheridge Shire Council following the standard assessment pathway for code assessable development under the Planning Act. In 2023, the wind farm was declared a prescribed development project so it will now be assessed under the SDPWO Act. The Kidston Pumped Storage Hydro Project, which raises some particular issues about the impact of extreme weather events, was assessed in part by the local council and in part by the State Government as a co-ordinated infrastructure project, as explained below.

2. Case Study 1: The Kidston Pumped Storage Hydro Project

In an Australian first, the Kidston Renewable Energy Hub is sited on a disused gold mine. The Kidston Pumped Storage Hydro Project takes advantage of the features of this site. It utilises two former mining pits as the upper and lower level reservoirs and relies on existing rights to take water from the Copper Field Dam.¹⁶¹ Initially, the Etheridge Shire Council granted planning permission for K2H in 2018.¹⁶² However, the KH2 project will involve the release of mine affected water during and after construction following significant rainfall events. Although the release of mine affected water is a common practice across Queensland,¹⁶³ there is no legislative framework to permit water releases from a new, non-resource project proposed over an existing resource tenure. Therefore, to deal with this particular aspect of the project, the proponent applied to the Coordinator-General for its assessment and approval as a co-ordinated infrastructure project under the SDPWO Act.

The proponent prepared a comprehensive Impact Assessment Report (IAR) to assess the potential impacts of operational releases on the environmental values of the receiving environment including potential impacts on water quality, hydrology, geomorphology, hydrogeology and ecology of the receiving environment including management during significant rainfall events.¹⁶⁴ The issue was not the overall resilience of the operation per se but whether the managed release of waste water would be able to safeguard the existing environmental values of the site during significant rainfall events. The IAR applied a risk-based assessment approach following the Commonwealth endorsed Water Quality Guidelines (2000),¹⁶⁵ the intent of Queensland’s Environmental Protection (Water) Policy 2009 and the requirements of the DES Technical Guideline – Wastewater release to Queensland waters (ESR/2015/1654, Version 2). To mitigate any future risks, the proponent nominated appropriate discharge limits as the primary mitigation measure.¹⁶⁶ In April 2019, the Coordinator-General approved the application subject to a number of conditions including a requirement to follow specified contaminated water release criteria and apply contaminant release limits for each contaminant. Other conditions included a duty to measure and record the streamflow and contaminant discharge rate in receiving waters during any release of contaminated water.¹⁶⁷

3. Does the Planning Legislation in Queensland Enhance the Resilience of These Projects?

Resilience was not an issue discussed in the publicly available information for this case study. None of the assessment pathways utilised – for code assessable development; co-ordinated infrastructure development or a prescribed project proposal – identified resilience as a specific, legislated assessment criterion. Despite the laudable acknowledgment of resilience issues in s 3 of the Planning Act, alternative assessment pathways give little or no legislative weight to resilience issues – and these pathways are commonly utilised in the assessment of electrical infrastructure.

V. Conclusion

We can identify recurring themes in the otherwise very diverse approaches to land-use planning in each of the states. Firstly, resilience or resilience-related objectives do appear in each of the planning legislations, but are only one among a number of often competing objectives. Only Victoria has now enhanced resilience consideration within specific planning instruments, but the change is new and we have little evidence on how this will be taken into account for specific planning decision-making.

More generally, we observe that in all jurisdictions approval of energy infrastructure is provided through alternative pathways. While in Victoria these developments are assessed by the Minister rather than local councils, but otherwise follow the general approval process, in New South Wales and Queensland separate pathways are applied for, which can, however, intersect with the Planning Act process in the case of Queensland.

As has been shown above, repeated calls have been made for (1) a national strategic approach to resilience planning and (2) greater reliance on land-use planning as a key governance framework for achieving resilient development. With respect to (1), we have found that, in recent years, decisions about resilient infrastructure have been subject only to the lightest national guidance. Two factors may account for this: the former Coalition Federal government’s sceptical approach to climate change issues generally and the constitutional lack of Federal jurisdiction over land-use matters. In the absence of a clear strategic policy at the national level, resilience has been dealt with at a project-by-project level as part of a commercial risk assessment process. That process may not adequately and transparently reflect the significant public interest in maintaining a high level of resilience for electricity infrastructure.

With respect to (2), State jurisdictions have primary responsibility for land-use planning. Across the three Australian states analysed in this article, resilience is now featuring explicitly in two of them, Queensland and Victoria, at least in their overarching strategic land-use documents. Evidence of whether and how resilience is actually considered in individual assessments remains scarce. There remain many ambiguities and gaps in the coverage of resilience issues and the basic assumption – that resilience will be dealt with during environmental assessment or development assessment on a case-by-case basis – remains the norm.

That being the case, any land-use planning assessment by public authorities may be occurring too late in the day to really influence outcomes.168 New measures in Victoria may encourage a more strategic approach to siting electricity infrastructure so it will be interesting to follow that recent measure.

Another major impediment is that decisions on major infrastructure development often by-pass mainstream development assessment processes meaning lofty statutory land-use planning objectives, including resilience, do not apply and the assessment process involves no or very limited public scrutiny, objection or appeal rights.

Planning and decision frameworks increasingly recognise resilience is about assessing, managing and mitigating risks rather than prioritising one principle – such as siting for absolute risk avoidance – as the sole or overarching basis for building resilience. Decisions about relative risks and priorities ultimately require a combination of subjective and objective decision-making.169 This requires a degree of strategic leadership, transparency and accountability that is currently lacking in the various decision-making frameworks we have analysed.

To further strengthen land-use planning frameworks, there would be value in the Federal government compiling further national uniform guidelines – or even regulations – about specific performance objectives, measures and development conditions for electricity infrastructure development. This would ensure an enhanced, more transparent and potentially more consistent degree of risk mitigation in all major infrastructure investment decisions, and would recognise their crucial public as well as commercial significance. As discussed above, it is common for the Federal government to develop strategies or even enact legislation which is then adopted by the States. With regard to land-use planning, the Federal government would have legislative competence under its international obligations under the Paris Agreement to prepare Australia to adapt to a climate-changed future.

Despite the above recommendations, we caution against too heavy a reliance on land-use planning frameworks. In recent years we have seen the emergence of a much more holistic approach to resilience/ risk management as reflected, for example, in the 2022 AEMO principles. Land-use planning is only one element of this more holistic approach. Commercial risk assessment, decentralisation and greater reliance on microgrids are other strategies that will ultimately help build resilience in the electricity grid. A multi-pronged approach, in which siting decisions are only one factor, is undoubtedly the most robust, most likely and most realistic way forward. The strategic side of land-use planning – its focus on an imagined future ideal state of using and developing land – could be used to further these decentralised and more climate-resilient future electricity use. In other words – we are currently underutilising planning law.

Overall, we find in the new era of assessing and addressing risk weighted consequences, land-use planning and development assessment can play a valuable role in mitigating risks and building resilience but only if the technical expertise, guidance and support are continually strengthened and refined over time and decisions are made within a more holistic, multi-faceted approach to resilience planning overall.

Postscript

Victorian legislation implementing the new transmission planning framework is currently before the Victorian Parliament. see National Electricity (Victoria) Amendment (VicGrid) Bill 2024.

This article was first published by Thomson Reuters in the Environment and Planning Journal by Stephanie Vatala: Partner in the Environment and Planning Team, Dentons; Professor Rosemary Lyster: Professor of Climate and Environmental Law, The University of Sydney Law School; Dr Anne Kallies: Senior Lecturer, Graduate School of Business and Law, RMIT University; and Dr Philippa England: Adjunct Senior Lecturer, Griffith University, 'Is land-use planning being underutilised for ensuring the resilience of new electricity infrastructure? An Australian case study', 2024, June, EPLJ, 110.

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1. See AEMO, Integrated System Plan (June 2022) <https://aemo.com.au/-/media/files/major-publications/isp/2022/2022-documents/2022-integrated-system-plan-isp.pdf>.
2. See Department of Climate Change, Energy, the Environment and Water, Energy Security Board – Renewable Energy Zones Planning – Consultation (Australian Government, 11 August 2020) <https://www.energy.gov.au/energy-and-climate-change-ministerial-council/energy-ministers-consultations/energy-security-board-renewable-energy-zones-planning-consultation>.
3. See Victoria Mollard, The Reliability Standard (AEMC Reliability Panel, February 2020) 2 <https://www.aemc.gov.au/sites/ default/files/2020-03/Reliability%20Standard%20Factsheet.pdf>. See also Rosemary Lyster, Daniel A Farber and Robert M Verchick “Climate-induced Disasters and Electricity Infrastructure” in Jonathan Verschuuren (ed), Climate Adaptation Law (Edward Elgar Publishing, 2nd ed, 2022).
4. See the Commissions of Inquiry referred to and referenced in this article.
5. See 2009 Victorian Bushfires Royal Commission, The 2009 Victorian Bushfires Royal Commission Final Report (July 2010) <http://royalcommission.vic.gov.au/Commission-Reports/Final-Report.html>. See also Anita Foerster, Andrew Macintosh and Jan McDonald, “Transferable Lessons for Climate Change Adaptation Planning? Managing Bushfire and Coastal Climate Hazards in Australia” (2013) 30 EPLJ 469.
6. See Queensland Floods Commission of Inquiry, Final Report (16 March 2012) 248 <https://www.floodcommission.qld.gov.au/ publications/final-report/>. See also Robert M Verchick and Rosemary Lyster, “Building a Climate-resilient Power Grid: Lessons from Texas-size Storms and the Queensland Floods” (2021) 3 Frontiers in Climate 1.
7. Australian Energy Market Operator, Black System South Australia 28 September 2016 (2017) 6 <https://www.aemo.com.au/-/ media/Files/Electricity/NEM/Market_Notices_and_Events/Power_System_Incident_Reports/2017/Integrated-Final-Report-SA-Black-System-28-September-2016.pdf>.
8. See AFAC, Cumulative Season Summary (28 February 2020) <https://twitter.com/AFACnews/status/1233262259612213248>. See also Rosemary Lyster, Daniel A Farber and Rory McFadden, “Climate-induced Wildfires and Strengthening Resilience in Electricity Infrastructure” (2022) 18(2) Utrecht Law Review 87.
9. See NSW Government, 2022 NSW Floods Inquiry Report (NSW Flood Enquiry, 29 July 2022) <https://www.nsw.gov.au/ nsw-government/projects-and-initiatives/floodinquiry>.
10. See Essential Energy, Submission to Select Committee on the response to Major Flooding across New South Wales in 2022, 20 May 2022 <https://www.parliament.nsw.gov.au/lcdocs/submissions/78824/044%20Essential%20Energy.pdf>.
11. See AEMO, 2020 ISP Appendix 8. Resilience and Climate Change Plan (July 2020) <https://aemo.com.au/-/media/files/major-publications/isp/2020/appendix--8.pdf?la=en>.
12. AEMO, n 11, 10–11.
13. Especially the external affairs power, which allows the federal government to legislate to implement treaty obligations. This has been used for climate mitigation commitments, such as renewable energy target legislation.
14. Anne Kallies, “The Australian Energy Transition as a Federalism Challenge: (Un)cooperative Energy Federalism in Australia” (2021) 10(2) Transnational Environmental Law 211.
15. See Australian Government, Intergovernmental Agreement on the Environment (1992) <https://faolex.fao.org/docs/pdf/ aus13006.pdf>.
16. Australian Government, n 15, Sch 4, National Environment Protection Measures.
17. Bilateral agreements under the Environment Protection and Biodiversity Conservation Act 1999 (Cth); see Australian Government Department of Climate Change, Energy and the Water, Shared Environmental Assessments with States and Territories <https:// www.dcceew.gov.au/environment/epbc/approvals/state-assessments>.
18. See Gene Technology Act 2000 (Cth) and mirror legislation enacted by the states.
19. See Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) and mirror legislation enacted by the states.
20. See Water Act 2007 (Cth) and mirror legislation in the states.
21. See Australia’s Nature Hub, Australia’s Strategy for Nature 2019–2030 <https://www.australiasnaturehub.gov.au/ national-strategy>.
22. See Australian Government Department of Climate Change, Energy, the Environment and Water, Energy and Climate Change Ministerial Council (2022) <https://www.energy.gov.au/government-priorities/energy-and-climate-change-ministerial-council>.
23. See Commonwealth, Royal Commission into National Natural Disaster Arrangements, Report (30 October 2020) <https:// naturaldisaster.royalcommission.gov.au/publications/royal-commission-national-natural-disaster-arrangements-report>.
24. Commonwealth, Royal Commission into National Natural Disaster Arrangements, n 23, 25.
25. Commonwealth, Royal Commission into National Natural Disaster Arrangements, n 23, 25.
26. United Nations Framework Convention on Climate Change, “Conference of the Parties, Adoption of the Paris Agreement” (adopted 15 December 2015, entered into force 4 November 2016) UN Doc FCCC/CP/2015/L.9/REV/1 (12 December 2015) <https://unfccc.int/sites/default/files/english_paris_agreement.pdf>.
27. See Australian Government, National Climate Resilience and Adaptation Strategy 2021-2025 (2021) <https://www.dcceew.gov. au/sites/default/files/documents/national-climate-resilience-and-adaptation-strategy.pdf>.
28. See Infrastructure Australia, A Pathway to Infrastructure Resilience Advisory Paper I: Opportunities for Systemic Change (Advisory Paper, 2021) <https://www.infrastructureaustralia.gov.au/sites/default/files/2021-08/Advisory%20Paper%201%20 -%20A%20pathway%20to%20Infrastructure%20Resilience%20FINAL.pdf>.
29. Infrastructure Australia, n 28, 26.
30. Infrastructure Australia, n 28, 29.
31. Infrastructure Australia, n 28, 26.
32. Infrastructure Australia, n 28, 15.
33. Infrastructure Australia, n 28, 32.
34. See Department of Home Affairs, Critical Infrastructure Resilience Strategy (February 2023) <https://www.cisc.gov.au/ resources-subsite/Documents/critical-infrastructure-resilience-strategy-2023.pdf>.
35. See Department of Home Affairs, Critical Infrastructure Resilience Plan (February 2023) <https://www.cisc.gov.au/resources-subsite/Documents/critical-infrastructure-resilience-plan-2023.pdf>.
36. Department of Home Affairs, n 35, 3.
37. Department of Home Affairs, n 35, 5.
38. See Australian Government, Electricity Sector Climate Information (ESCI) Project (Department of Climate Change, Energy, the Environment and Water) <https://www.energy.gov.au/government-priorities/energy-security/electricity-sector-climate-information-esci-project>.
39. See Geoscience Australia, Australian Flood Risk Information Portal <https://www.community-safety.ga.gov.au/data-and-products/afrip>.
40. The electricity systems of Western Australia and the Northern Territory are not connected to the shared network of the NEM for geographical reasons.
41. Commonwealth of Australia, Independent Review into the Future Security of the National Electricity Market: Blueprint for the Future Final Report (June 2017) <https://www.energy.gov.au/publications/independent-review-future-security-national-electricity-market-blueprint-future>.
42. Commonwealth of Australia, n 41, recommendation 2.7.
43. The National Electricity Law is set out in a Schedule to the National Electricity (South Australia) Act 1996 (SA).
44. National Electricity Law, s 29.
45. National Electricity Law, s 49(2).
46. National Electricity Law, s 15.
47. National Electricity Law, s 7.
48. Commonwealth of Australia, Independent Review into the Future Security of the National Electricity Market Preliminary Report (December 2016) <https://www.energy.gov.au/publications/independent-review-future-security-national-electricity-market-preliminary-report>.
49. See Fauzan Hanif Jufri, Victor Widiputra and Jaesung Jung, “State-of-the-art Review on Power Grid Resilience to Extreme Weather Events: Definitions, Frameworks, Quantitative Assessment Methodologies and Enhancement Strategies” (2019) 239 Applied Energy 1049.
50. Jufri, Widiputra and Jung, n 49, 1050.
51. Jufri, Widiputra and Jung, n 49, 1052.
52. Note that a climate mitigation objective has been introduced into the NEO by the National Energy Laws Amendment (Emissions Reduction Objectives) Act 2023 (Cth).
53. See AEMO, n 1.
54. Australian Energy Market Operator, Integrated System Plan for the National Electricity Market (July 2018) <https://aemo.com. au/-/media/files/electricity/nem/planning_and_forecasting/isp/2018/integrated-system-plan-2018_final.pdf>.
55. Australian Energy Market Operator, n 54, 51ff.
56. Australian Energy Market Operator, n 54, 10.
57. Not from a land-use planning perspective, which is considered below.
58. AEMC, National Electricity Rules, cl. 5.10.2, <https://energy-rules.aemc.gov.au/ner/477>.
59. AEMC, n 58, cl. 5.24.1.
60. AEMC, n 58, cl. 5.24.1(b–e).
61. A summary can be found in the AER guidance note: Australian Energy Regulator, Network Resilience – A Note on Key Issues (April 2022) <https://www.aer.gov.au/system/files/Network%20resilience%20-%20note%20on%20key%20issues.pdf>.
62. For example, through the Service Target Performance Incentive Scheme for distribution networks and the expectation that minimum service levels are achieved for supply.
63. Australian Energy Regulator, n 61, 11.
64. Environmental Planning and Assessment Regulation 2021 (NSW) s 192.
65. Environmental Planning and Assessment Act 1979 (NSW) s 4.15(c) (EP&A Act), which applies by virtue of s 4.40 to SSI.
66. Environmental Planning and Assessment Act 1979 (NSW) s 5.22(1), (2).
67. Environmental Planning and Assessment Act 1979 (NSW) s 5.23.
68. Environmental Planning and Assessment Act 1979 (NSW) s 5.24.
69. NSW Department of Planning and Environment, State Significant Infrastructure Guidelines (October 2022) App B, 8 <https:// www.planning.nsw.gov.au/sites/default/files/2023-03/state-significant-development-guidelines.pdf>.
70. Environmental Planning and Assessment Act 1979 (NSW) s 5.17(6).
71. Environmental Planning and Assessment Act 1979 (NSW) s 5.18(1).
72. Environmental Planning and Assessment Act 1979 (NSW) s 5.18(2).
73. Environmental Planning and Assessment Act 1979 (NSW) s 5.19(2).
74. Environmental Planning and Assessment Act 1979 (NSW) s 5.27(2).
75. Energyco, Renewable Energy Zone Locations (NSW Government, February 2023) <https://www.energyco.nsw.gov.au/ renewable-energy-zones/renewable-energy-zone-locations>.
76. Energyco, NSW Network Infrastructure Strategy (NSW Government, May 2023) 7 <https://www.energyco.nsw.gov.au/sites/ default/files/2023-05/network-infrastructure-strategy.pdf>.
77. Energyco, n 76, 6.
78. EnergyCo, Central-West Orana Renewable Energy Zone: Project Overview (NSW Government, February 2022) 6 <https://www. energyco.nsw.gov.au/sites/default/files/2022-09/cwo-rez-project-overview-feb-2022.pdf>.
79. EnergyCo, n 78, 6.
80. EnergyCo, n 78, 9.
81. EnergyCo, New England Renewable Energy Zone (NSW Government) <https://www.energyco.nsw.gov.au/ne-rez>.
82. State Environmental Planning Policy (Planning Systems) 2021 (NSW) cl 20, Sch 5.
83. Energyco, n 81.
84. State Environmental Planning Policy (Planning Systems) 2021 (NSW) cl 23(2), Sch 5.
85. NSW Government, Planning Secretary’s Environmental Assessment Requirements (SEARs) (Application No SSI-48323210, 7 October 2022) (SEARs).
86. EnergyCo, n 78, 8.
87. EnergyCo, Central-West Orana Renewable Energy Zone Transmission Project: Scoping Report (September 2022).
88. EnergyCo, n 78, 9.
89. EnergyCo, n 78, 9.
90. EnergyCo, n 78, 9.
91. EnergyCo, n 78, 9.
92. EnergyCo, n 78, Figure 3-1.
93. EnergyCo, n 87, 38.
94. EnergyCo, n 87, 38.
95. SEARs, n 85.
96. EnergyCo, n 87, 113. This is repeated in the Amendment Report dated March 2024 which has been submitted in response to public submissions on the EIS – see E-31–E32.
97. EnergyCo, n 87, 123.
98. EnergyCo, n 87, 135.
99. EnergyCo, n 87, Summary, xxv.
100. Planning and Environment Act 1987 (Vic) s 4(1).
101. Planning and Environment Act 1987 (Vic) s 60(1)(b).
102. Victoria Planning Provisions cl 72.01 designates that for all network installations and all energy generation and storage facilities of a installed capacity of 1 MW or greater. The VPP is available at <https://planning-schemes.app.planning.vic.gov.au/Victoria%20 Planning%20Provisions/ordinance>.
103. Explanatory Report, Victorian Planning Provisions (2019) Amendment VC161.
104. Planning and Environment Act 1987 (Vic) s 60(1)(g).
105. Planning and Environment Act 1987 (Vic) s 60(1)(e) (emphasis added).
106. Victoria Planning Provisions cl 13.01.
107. Victoria Planning Provisions cl 13.02.
108. Victoria Planning Provisions cl 13.03.
109. This wording in Victoria Planning Provisions cl 19.01.1S was only included with amendment VC216 on 10 June 2022.
110. Department for Sustainability and Environment, Ministerial Guidelines of Environmental Effects under the Environment Effects Act 1978 (2006) 2 <https://www.planning.vic.gov.au/ data/assets/pdf_file/0031/619771/ministerial-guidelines-assessment-of-environmental-effects.pdf>.
111. Environment Effects Act 1978 (Vic) s 8A.
112. Victorian Government, Department of Sustainability and Environment, Ministerial Guidelines for Assessment of Environmental Effects under the Environment Effects Act 1978 (June 2006).
113. Australian Energy Market Operator, n 54 App A.
114. National Electricity (Victoria) Amendment Act 2020 (Vic).
115. Prime Minister of Australia, “Rewiring the Nation to Supercharge Victorian Renewables” (Media Release, Australian Government, 19 October 2022) <https://www.pm.gov.au/media/rewiring-nation-supercharge-victorian-renewables>.
116. Delburn Wind Farm (PCI) [2022] PPV 7.
117. See, eg, Myers v South Gippsland Shire Council [2009] VCAT 1022; Myers v South Gippsland Shire Council (No 2) [2009] VCAT 2414; Ronchi v Wellington Shire Council [2009] VCAT 1206; Gippsland Coastal Board v South Gippsland Shire Council (No 2) [2008] VCAT 1545.
118. Taip v East Gippsland Shire Council (2010) 177 LGERA 236; [2010] VCAT 1222.
119. Taip v East Gippsland Shire Council (2010) 177 LGERA 236, [85]; [2010] VCAT 1222.
120. If the planned project impacts a Matter of National Environmental Significance, see Environment Protection and Biodiversity Conservation Act 1999 (Cth) Ch 4 Pt 7.
121. As part of the NEM legal frameworks, new grid infrastructure investment is subject to a regulatory investment test (for transmission networks, RIT-T, for distribution network, RIT-D), which includes a cost-benefit analysis of the planned investment.
122. Brunswick Terminal Station Upgrade (AC) [2015] PPV 94, recommendation 7.
123. Department of Environment, Land, Water and Planning, Victorian Transmission Investment Framework Final Design (June 2023) <https://engage.vic.gov.au/victorian-transmission-investment-framework>.
124. Department of Environment, Land, Water and Planning, n 123, 17.
125. Department of Environment, Land, Water and Planning, n 123, 17.
126. Department of Environment, Land, Water and Planning, n 123, 18.
127. Planning Act 2016 (Qld) s 3(3).
128. Planning Act 2016 (Qld) s 16; Queensland Government, State Planning Policy (2017) 8 (SPP 2017).
129. Queensland Department of State Development, Infrastructure, Local Government and Planning, Integrating State Interests in a Planning Scheme: Guidance for Local Governments (VS 1.2, November 2021) 167–184.
130. Planning Regulation 2017 (Qld) ss 26, 30; SPP 2017, n 128, 8.
131. SPP 2017, n 128, 54.
132. SPP 2017, n 128, 50.
133. An acceptable risk is a risk that is sufficiently low as to require no new treatments or actions to reduce the risk as communities can live with this level of risk without further action. A tolerable risk is a risk that is low enough as to allow the exposure to a natural hazard to continue while at the same time high enough to require new treatments or actions to reduce risk. Communities can live with this level of risk but as much as is reasonably practical should be done to further reduce the risk and may include planning responses for: “reducing the likelihood of the risk (avoidance); reducing the consequences of the risk (mitigation and hazard management over time).” Queensland Government (DSDILGP), Integrating State Planning Interests in a Planning Scheme (2021) 302.
134. SPP 2017, n 128, 51.
135. SPP 2017, n 128, Glossary, 68.
136. Queensland Department of State Development, Infrastructure, Local Government and Planning, n 129, 152.
137. Planning Regulation 2017 (Qld) ss 26, 30.
138. Queensland Government, State Development Assessment Provisions (SDAP), s 1.1 (SDAP).
139. SDAP, n 138, Code 23, Purpose Statement, 23-1.
140. Queensland Treasury, Solar Farm Guidance for Local Government in Plan Making (State of Queensland, 2020) <https:// dsdmipprd.blob.core.windows.net/general/solar-farm-guideline-part-1-local-government.pdf>.
141. Queensland Government, Queensland Solar Farm Guidelines (2020) <https://www.epw.qld.gov.au/ data/assets/pdf file/0012/16122/solar-farm-guidelines-communities.pdf>.
142. Queensland Treasury, n 140, 18.
143. Queensland Treasury, n 140, 23.
144. Planning Regulation 2017 (Qld) s 30.
145. Planning Act 2016 (Qld) ss 43(2)(c), 45(3).
146. Queensland Government, Planning Bill 2015 Explanatory Notes (2015) 74.
147. Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16, [50]–[54].
148. Daikyo (North Queensland) Pty Ltd v Cairns City Council [2003] QPELR 606; [2003] QPELR 22; Jolin Nominees Pty Ltd v Moreland City Council (2006) 145 LGERA 357; [2006] VCAT 467; Singh Properties Pty Ltd v Scenic Rim Regional Council [2018] QPEC 27.
149. Councils are prohibited from making wind farm development an assessable item (code or impact assessable) in their local planning instruments (Planning Regulation 2017 (Qld) Sch 6).
150. SDAP, n 138, 2.2 Managing multiple state codes or matters of state interest.
151. SDAP, n 138, 2.2 Managing multiple state codes or matters of state interest.
152. State Development and Public Works Organisation Act 1971 (Qld) ss 27, 76.
153. Energy (Renewable Transformation and Jobs) Bill (Exposure Draft, 2023) (Qld) Pt 5, Div 2.
154. Energy (Renewable Transformation and Jobs) Bill (Exposure Draft, 2023) (Qld) Pt 5, Div 2.
155. Department of Energy and Public Works, About the Plan (Queensland Government, 2023) <https://www.epw.qld.gov.au/ energyandjobsplan/about>.
156. Queensland Government, Energy (Renewable Transformation and Jobs) Bill Consultation Exposure Draft Energy Paper (Consultation Paper, 2023) 6 <https://yoursayhpw.engagementhq.com/energy-bill-consultation>.
157. Energy (Renewable Transformation and Jobs) Bill (Exposure Draft, 2023) (Qld) cl 15. See also cl 7.
158. The Exposure Bill includes measures to strengthen the framework for REZs including coordinated connection and access to, transmission networks. See Energy (Renewable Transformation and Jobs) Bill (Exposure Draft, 2023) (Qld) Pt 6.
159. Department of Energy and Public Works, Queensland Renewable Energy Zones <https://www.epw.qld.gov.au/about/initiatives/ renewable-energy-zones>.
160. Department of Energy and Public Works, n 159.
161. AECOM Australia Pty Ltd, Kidston Pumped Storage Hydro Project Impact Assessment Report (Genex Power Ltd, 11 January 2019) 15.
162. Pursuant to the code assessment and referral process, SARA was responsible for assessing the application against the Environmental Protection Act 1994 (Qld) and Vegetation Management Act 1999 (Qld).
163. This activity is typically managed through a range of management and monitoring requirements in line with industry standards prescribed under the Environmental Protection Act 1994 (Qld) and regulated by the Department of Environment and Science (DES).
164. AECOM Australia Pty Ltd, n 161, iv.
165. Australian and New Zealand Environment and Conservation Council (ANZECC) & Agricultural and Resource Management Council of Australia and New Zealand (ARMCANZ).
166. AECOM Australia Pty Ltd, n 161, iv.
167. AECOM Australia Pty Ltd, n 161, 56.
168. Anne Kallies and Vanessa Johnston, “How the Law Contributes to Protecting Energy Infrastructure from Extreme Weather Events: An Australian Case Study” in Robert Brears (ed), The Palgrave Handbook of Climate Resilient Societies (Palgrave Macmillan, 2021).
169. P England, “Trends in the Evolution of Floodplain Management in Australia: Risk Assessment, Precautionary and Robust Decision-making” (2019) 31(1) Journal of Environmental Law 315.