Draft Renewable Energy Planning Code – Submission to the WAPC

Draft Renewable Energy Planning Code
Submission to the Western Australian Planning Commission

Executive Summary

This submission responds to the Draft Renewable Energy Planning Code released for public consultation in December 2025. It focuses on wind energy facilities and large-scale solar developments in rural and agricultural areas, grounded in established principles of property law, nuisance, and planning discretion.

The draft Code adopts a lowest-common-denominator approach to setbacks, noise, shadow flicker, and visual amenity. It relies heavily on predictive modelling and proponent flexibility, while providing insufficient protection for neighbouring landowners and non-participating dwellings.

Comparable jurisdictions in Europe and North America impose materially higher standards where developments generate unavoidable external impacts. In those systems, the greater the intrusion, the tighter the regulation. The draft Code inverts that principle.

Western Australia has abundant land, a concentrated population, and extensive Crown ownership. There is no legal or practical justification for imposing weaker amenity standards on rural landholders than would be tolerated in urban or peri-urban contexts.

WAFarmers recommends that the draft Code be amended to substantially increase minimum setbacks, tighten night-time and low-frequency noise limits, treat shadow flicker as a hard constraint, and impose stronger siting, glare, and decommissioning requirements on large-scale solar developments.

Statutory context

The Draft Renewable Energy Planning Code is proposed to operate as a State Planning Code under the Planning and Development Act 2005 (WA), and to be given effect through incorporation into local planning schemes pursuant to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA).[1]

In exercising its functions, the Western Australian Planning Commission must promote orderly and proper planning and have due regard to the protection of amenity and the interests of affected landowners. [2]

Setbacks and siting of wind turbines

Draft clauses 2.1–2.4 of the Code establish minimum setback requirements for wind energy facilities, primarily by reference to turbine height multipliers and noise modelling outcomes. The draft Code permits turbines of significant height to be located relatively close to non-participating dwellings, which prioritises proponent flexibility over neighbour amenity.

This approach is inconsistent with international planning practice in jurisdictions with comparable property rights traditions.

International benchmarks

In Germany, multiple Länder impose mandatory setback distances substantially exceeding those proposed in Draft clauses 2.1–2.4. Bavaria’s ‘10H rule’ requires wind turbines to be set back a distance equal to ten times their total height from residential buildings.[3]

In the United States, county-level ordinances commonly impose fixed setbacks of 1.5–2 kilometres from non-participating dwellings, reflecting the primacy afforded to property rights, nuisance avoidance, and landscape protection in local land-use regulation.[4]

Noise impacts

Draft clauses 2.3: WF Element 2 – Noise of the Code adopt noise thresholds that are lenient by international standards and rely heavily on predictive modelling rather than enforceable, outcome-based limits .

In Denmark, low-frequency noise from wind turbines is regulated by specific indoor night-time limits, recognising that sleep disturbance and loss of amenity occur well below conventional A-weighted thresholds.[5]

The draft Code’s acceptance of higher permissible night-time noise levels in rural areas inverts established planning logic. Quiet rural environments are more, not less, sensitive to industrial noise intrusion.

Shadow flicker and visual amenity

Draft clauses 2.6 WF Element 5 – Shadow Flicker treat shadow flicker as a mitigatable impact rather than a hard constraint. In jurisdictions such as Germany and Sweden, exceedance of shadow flicker limits is treated as grounds for refusal or increased setbacks.

Visual amenity receives limited weight in the draft Code despite being one of the most enduring and value-affecting impacts of wind and solar developments.

Property rights, nuisance, and planning discretion

A recurring flaw in the draft Code is the implicit assumption that renewable energy policy objectives justify elevated tolerance for intrusion onto neighbouring land. This is inconsistent with established principles of nuisance and planning law.

Under common law nuisance doctrine, the burden of compatibility rests with the proponent introducing a new and intrusive use, particularly where impacts are ongoing and unavoidable.[6]

Planning discretion must be exercised having regard to amenity, reasonableness, and precaution in the face of scientific uncertainty.[7]

1. Recommended Amendments to the Draft Renewable Energy Planning Code
WAFarmers recommends that the Draft Renewable Energy Planning Code be amended as follows:
7.1 Wind turbine setbacks (Draft cls 2.1–2.4)
- Replace turbine-height-based setback multipliers with fixed minimum setbacks from non-participating dwellings.
- Adopt a minimum setback of not less than 2 kilometres from any non-participating dwelling in rural and agricultural zones.
- Remove discretion to reduce setbacks solely on the basis of predictive noise modelling, recognising the limits of modelling for low-frequency noise, cumulative impacts, and lived amenity outcomes .
7.2 Noise limits and compliance (Draft clauses 2.3: WF Element 2 – Noise)
- Lower permissible night-time noise limits in rural and agricultural areas to reflect lower ambient background noise levels.
- Introduce specific low-frequency noise limits, including indoor night-time limits, consistent with international best practice .
- Require post-construction compliance testing, with enforceable curtailment or shutdown provisions where exceedances occur.
- Remove any presumption that rural environments can tolerate higher night-time noise than urban environments .
7.3 Shadow flicker (Draft clauses 2.6 WF Element 5 – Shadow Flicker)
- Treat shadow flicker exceedance as a hard planning constraint, not a mitigatable or manageable impact.
- Where modelling uncertainty exists, require either: increased setbacks, or refusal of approval .
- Prohibit averaging or smoothing of shadow flicker impacts across days or seasons for compliance purposes .
7.4 Visual amenity and landscape character
- Elevate visual amenity and landscape character to primary decision-making considerations .
- Require cumulative visual impact assessments where multiple renewable projects are proposed within a region .
- Explicitly recognise productive agricultural landscapes as a form of protected rural amenity .
1. Conclusion
The Draft Renewable Energy Planning Code would not withstand scrutiny in jurisdictions with stronger protections for property rights and amenity. Western Australia has no shortage of land or alternatives.
WAFarmers submits that the Code should be substantially revised to reflect international best practice and established legal principles, rather than locking in permissive standards that externalise costs onto rural landholders.