AUSTRALIA Law and Practice Contributed by: Alexander Danne, Roy Groom, Rohit Venkat and Georgia Summerhill, Clayton Utz
grammes (covering noise, dust, water quality and fau- na), periodic community consultation requirements, and reporting to the relevant planning authority. Failure to comply with conditions may result in enforcement action, including stop-work orders, penalty notices or prosecution under state planning legislation. Financial assurance is increasingly imposed, particu- larly for renewable energy projects. Conditions may require the lodgement of bank guarantees or bonds to secure decommissioning and site rehabilitation at the end of the project life, ensuring that the landowners and government are not left with unfunded remedia- tion liabilities. Approvals typically impose commencement deadlines (known as lapse periods) within which substantial physical construction must begin, usually five years from the date of consent. If the proponent does not commence within this period, the approval lapses and a fresh application is required. Where a proponent seeks to amend or relax a condi- tion after approval is granted, modification applica- tions may be lodged under state planning legislation. In NSW, for example, modifications are assessed under Section 4.55 of the Environmental Planning and Assessment Act 1979. Whether a modification requires re-exhibition and further public consulta- tion depends on its nature and scale. Minor changes may be determined administratively, while substan - tial modifications require a process comparable to the original assessment. 3.4 Eminent Domain, Condemnation and Expropriation Rights to Construct and Operate Generation Facilities Generation proponents in Australia generally do not have compulsory acquisition or expropriation powers. Unlike transmission and distribution entities, private generators must obtain land access through volun- tary commercial negotiation with landowners, typically via lease agreements, option agreements or freehold purchase. The standard approach for renewable energy projects is to negotiate long-term site leases with landholders, with annual payments calculated per turbine (for wind
farms) or per hectare (for solar farms). These arrange- ments are governed by private contract rather than statutory compulsion. Limited exceptions exist where a generation project is developed by a state-owned entity or is declared critical state infrastructure. In such cases, compulsory acquisition may be available under state legislation – for example, the Land Acquisition (Just Terms Com- pensation) Act 1991 (NSW) or the Acquisition of Land Act 1967 (QLD). However, these powers are rarely invoked for generation projects in practice. Where native title interests exist over land proposed for a generation facility, the proponent must comply with the future act provisions of the Native Title Act 1993 (Cth). This typically requires negotiation of an Indigenous Land Use Agreement (ILUA) or compliance with the right to negotiate procedure. Compensation is payable for any impact on native title rights and interests. If compulsory acquisition is available, compensation is assessed on a just terms basis, encompassing market value of the interest acquired, severance, disturbance and any special value of the land to the owner. Valua- tions are typically conducted by the Valuer General or independent valuers, with a right of objection to the Land and Environment Court or equivalent tribunal. 3.5 Decommissioning a Generation Facility The requirements for decommissioning a generation facility in Australia arise from a combination of plan- ning approval conditions, state environmental legis- lation, NER obligations and, for some technologies, mining and contaminated land legislation. NER Requirements Under the NER, large generators in the NEM must provide the AEMO with at least 42 months’ notice of their intention to close or withdraw capacity from the market. This notice of closure requirement, strength- ened in recent years in response to unplanned early retirements, is designed to provide the AEMO, gov- ernments and market participants with sufficient lead time to plan for replacement capacity and manage reliability risks during the transition.
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