Where the Wind Blows: Offshore Wind Farm Site Considerations

Introduction

The decision of where to develop an offshore wind farm (Project) is complex and governed by many factors. The location of Projects in the sea distinguishes this form of renewable energy from other sources because the Commonwealth of Australia does not have exclusive sovereignty over the use and control of oceans.

In this article, we consider the critical question of “where” to construct a Project and how domestic (state and Commonwealth) legislation as well as public international law can influence Project location.

Who owns the sea?

Maritime boundaries are complex and governed by a mix of domestic and international legal considerations. Maritime boundaries include:

  • Coastal waters (3 nautical miles (5.556 km) from the territorial sea baseline (TSB));
  • Territorial Sea (12 nautical miles (22.224 km) from the TSB);
  • Contiguous Zone (24 nautical miles (44.448 km) from the TSB);
  • Exclusive Economic Zone (EEZ) (200 nautical miles (370.4 km) from the TSB);
  • Australian Fishing Zone (same as the EEZ, with exceptions); and
  • Continental Shelf (extends to 200 nautical miles from the TSB and beyond to the outer edge of continental margin).

The Offshore Electricity Infrastructure Act 2021 (Cth) (OEI Act) introduced the legal framework for Projects in the Commonwealth offshore area. The Commonwealth offshore area includes the territory, seabed and subsoil beneath the territorial sea and Australia’s EEZ and excludes Coastal waters1. The provisions of the OEI Act must be applied with existing legislation relating to the sea (for example, Seas and Submerged Lands Act 1973 (Cth) and the Coastal Waters (State Powers) Act 1980 (Cth)) and is also subject to Australia’s obligations under international law both within and outside of the Commonwealth offshore area.

Location & Size of Projects

Projects can be located up to 200 nautical miles from the shoreline. However, in practice, Project positioning is governed by:

  1. technology: for example, the decision whether offshore wind should be fixed and floating (see more here);
  2. proximity to natural resources: including high and consistent wind speeds and suitable water depths;
  3. proximity to end users: including proximity to urban areas as well as existing electricity and maritime infrastructure (including ports);
  4. proximity to existing sea users: including shipping routes and navigation, communication and hydrocarbon cabling, the maritime industry (such as fishing, aquaculture and tourism), coastal towns (frequently concerned about visual amenity)
  5. environmental impact: including impact of maritime species2.

As a result of these factors, Projects are presently best placed between 5km and 35km from the coastline. Under the Offshore Electricity Infrastructure Regulations3 up to 700 km2 (approximately the land area of Singapore) can be licensed for the development of a Project.

The Australian Experience

The OEI Act empowers the Commonwealth to declare areas which are suitable for offshore infrastructure activities. To date, the Commonwealth has flagged its intention to declare the following offshore wind priority regions:

Priority region Status
Bass Strait off Gippsland in Victoria Declared suitable on 19 December 20224
Pacific Ocean region off the Hunter in NSW Declared suitable on 12 July 20235
Southern Ocean region off Portland in Victoria Consultation closed 31 August 20236
Pacific Ocean region off the Illawarra in NSW Consultation ongoing (August to October 2023)7
Bass Strait region off Northern Tasmania Consultation commences in October 20238
Indian Ocean region off Perth/Bunbury in Western Australia Consultation commences in November 20239

Source: Ecogeneration: Australian offshore wind farms get green light in landmark announcement10

What are the Australia’s obligations under international law in respect of Projects?

While wind is a non-living, non-extractive, renewable, and non-exhaustible resource, the conversion of wind into an energy resource has a unique spatial footprint which affects the water column, seabed, subsoil, and even the airspace above. This characteristic has significant implications the exercise of Australia’s sovereign rights in its territorial waters and EEZ.

Australia’s obligations under international law, particularly within the framework of the United Nations Convention on the Law of the Sea (UNCLOS) will impact Projects (particularly project location and design).

While Australia has sovereign rights over its EEZ, it must have due regard and consider the rights and duties of other countries11, and other countries must do the same in respect of Australia’s rights12. This general principle under UNCLOS is designed to balance the rights and interests of coastal countries with those of other countries, Projects introduce unique challenges and considerations to the application of these principles.

For instance, the following UNCLOS obligations may having bearing on a Project’s design and location:

  • a coastal country must not unreasonably obstruct or interfere with a foreign vessel’s right of innocent passage or sea approaches and shipping routes.13 The establishment of safety zones around Projects, the potential increase in maritime traffic resulting from Project activities, and the specific placement of the Projects themselves all have the potential to impact this obligation. The extent and nature of such interference will be contingent upon Project design and geopolitical factors which will evolve as the industry matures and for which businesses must be prepared;
  • freedom of overflight, the right to lay submarine cables and pipelines, and the freedom of navigation.14 This obligation has national security implications which must be considered in Project risk analyses; and
  • the obligation to protect and preserve the marine environment,15 and take measures to minimise pollution from the installation of infrastructure used in the exploitation of natural resources or operating in the marine environment.16

It is evident from even a cursory evaluation of these obligations that a Project’s location and design have complex, far reaching implications.

Conclusion

Understanding the intricacies of the “where” aspect of Projects is essential for businesses seeking success in this industry that involves a careful of both domestic and international regulatory requirements and obligations to enable informed decision-making, risk mitigation, and collaborative ventures.


The Hamilton Locke team advises across the energy project life cycle – from project development, grid connection, financing, and construction, including the buying and selling of development and operating projects. For more information, please contact Matt Baumgurtel.


1s8

2Camille Goodman (2023), ‘Harnessing the Wind Down Under: Applying the UNCLOS Framework to the Regulation of Offshore Wind by Australia and New Zealand, Ocean Development & International Law’.

3s7

4The Hon Chris Bowen MP, Minister for Climate Change and Energy, Joint media release: Unlocking the power of offshore wind in Gippsland

5The Hon Chris Bowen MP, Minister for Climate Change and Energy, Area in the Pacific Ocean off the Hunter declared suitable for offshore wind

6The Hon Chris Bowen MP, Minister for Climate Change and Energy, Offshore wind industry to power regional jobs across the Southern Ocean region

7The Hon Chris Bowen MP, Minister for Climate Change and Energy, Consultation Opens for Offshore Wind Zone in the Illawarra, Driving Regional Jobs and Investment

8The Hon Chris Bowen MP, Minister for Climate Change and Energy, Speech to Asia Pacific Offshore Wind and Green Hydrogen Summit.

9The Hon Chris Bowen MP, Minister for Climate Change and Energy, Speech to Asia Pacific Offshore Wind and Green Hydrogen Summit.

10Ecogeneration, Australian offshore wind farms get green light in landmark announcement

11Article 56(1)a

12Article 58(3)

13Articles 17 and 45

14Article 58(1)

15Article 192

16Article 194(3)

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