Renewable energy in Australia Funding and investment © McCullough Robertson Disclaimer This publication has been prepared for general Information contained in this publication information purposes only and should not be regarded as is current as at 16 June 2017. legal advice or other professional advice. Further advice All Rights Reserved. should be obtained before taking action on any issue dealt with in this publication. Renewable energy in Australia - Funding and investment About McCullough Robertson McCullough Robertson is a leading • advising on the redevelopment of independent Australian law firm with the abandoned Kidston Gold Mine four offices across the country. For by Genex into a hydropower facility more than 90 years, major Australian for the northern Australian electricity and foreign owned corporations, market. The Kidston Project will financial institutions, governments, be the first in the world to use two private enterprises and high net worth disused mine pits for hydroelectric individuals have trusted our advice on power generation; their most critical legal challenges. • advising on all aspects of the Our whole-of-project approach ensures development and delivery of seamless legal services are on hand from Mackay Sugar Limited’s bagasse the project approval and development cogeneration facility at its mill in phase, through to project financing, Mackay, Queensland; operation and expansion. Our specialist • acting for Mackay Regional Council in lawyers bring expertise, experience and relation to a landfill gas management in-depth knowledge of the renewables and energy utilisation project at industry, having worked on solar, Hogan’s Pocket and Bayersville hydro, wind, biomass and geothermal landfill sites; renewable energy projects in Australia • acting for Ergon Energy to provide and overseas. advice for the geothermal power Key highlights of our experience include: station at Birdsville, Australia’s only • advising on the delivery of a solar commercial geothermal power power station at Alice Springs Airport plant; and in the Northern Territory • advising on market design and for Ingenero; competition law issues in this space. • advising various wind farm operators, We understand the opportunities energy utilities and banks on the and challenges facing those in the development of wind farms and on renewables sector and provide the regulation of the renewables and commercial, outcomes focused advice electricity industry; on the full range of issues confronting participants in this field. Note from the editors The increasing global demand for It provides: energy presents both opportunities and • an overview of the current state of the challenges for Australia. Australia is well Australian renewable energy industry, known for its abundance of renewable its key players, trends and priority energy sources and has not fully areas for future development; capitalised on them to date. However, as renewable energy projects become more • an examination of the challenges and cost competitive, and local demand for opportunities in the renewable energy renewable energy soars, domestic policy industry; and is developing to help drive local and • an in-depth guide to navigating the international investment in renewable legal framework in Australia, including energy projects. potential legal hurdles that investors face or are likely to face when doing The Australian Renewable Energy Target business in the Australian renewable (RET), for example, is a federal mandate energy sector. to create a supportive environment for long-term investment in Australia’s We will step you through the funding renewable energy industry. The RET has opportunities, structuring and corporate set a target of 23.5% of Australia’s total considerations, national electricity power to come from renewable energy regulations and preferred project by 2020. delivery methods. The Renewable energy in Australia three While we cannot delve into every detail part series provides some insights into in this guide, please contact any of our the issues you will face, and how best experts should you have any specific to overcome them, in proceeding with queries – we would be more than happy a renewable energy development in to help. Australia. Renewable energy in Australia - Funding and investment REN NIEMANN Partner Construction and Project Delivery Methods t +61 7 3233 8770 e [email protected] LOUISE HORROCKS Partner Structuring and Corporate Advisory t +61 7 3233 8734 e [email protected] ADRIAN SMITH Partner Funding and Corporate Advisory t +61 2 8241 5639 e [email protected] JOHN KETTLE Partner Funding and Electricity Regulation t +61 7 3233 8962 e [email protected] TIM HANMORE Partner Approvals and Planning t +61 7 3233 8955 e [email protected] DAVID GILHAM Partner Funding and Project Finance t +61 2 8241 5611 e [email protected] Funding options Australian renewable energy projects have successfully acquired various forms of funding, including debt funding from domestic and foreign banks and non-bank lenders (such as mutual funds, insurance companies and pension funds), corporate financing and government funding. Participants in the renewable energy sector are increasingly considering new and innovative ways to facilitate investment in the growing renewables pipeline. Renewable energy in Australia - Funding and investment All funding options should be For example, in the case of large wind carefully considered in the context and solar projects, debt and equity of the particular renewable energy providers will often require this revenue project, as different sources of to be generated from off-take contracts funding will attract various asset for the project’s output, such as PPAs. protection, ownership, tax and Under a PPA, the purchaser or off- compliance implications. taker (such as an electricity retailer) undertakes to pay for a set amount Project financing of electricity for a specified amount of time. This enables a forecast of cash Project financing has emerged flow based on expected output of a as a leading way to finance large generator, thereby reducing risk for the infrastructure projects, particularly debt or equity investor. PPAs also assist due to a greater minimisation of risk purchasers to hedge against volatility in compared to traditional corporate electricity rates and to secure long-term financing and greater flexibility in energy supply. allowing for a variety of taxation structuring opportunities. Power purchase agreements How project financing of a renewables There has been a recent uptake in project is treated for Australian tax the use of PPAs, resulting in part from purposes will largely depend on the electricity retailers using PPAs to obtain form the financing takes (i.e. debt Large-Scale Generation Certificates to or equity), how the investment is meet their RET obligations, as well as structured and the relationship between the decreasing cost for purchasers to the lenders and the borrower. Australia’s enter into PPAs. transfer pricing and thin capitalisation rules should be carefully considered For example, Origin Energy added when determining the mix of debt four separate PPAs to their PPA portfolio and equity funding when international in the first half of the 2016/17 financial investors are involved. year, increasing their total renewable energy supply capability under PPAs Participants in project financing to 375MW.45 will generally require contractual relationships with a secured projected revenue stream to ensure long-term viability of the project. Other electricity retailers that have Other factors that determine the recently signed PPAs for renewable bankability of a project include: energy include Ergon Energy, which • the type of project – and whether it signed a 100MW PPA in early 2017 for a involves proven or new technology; solar power project being built in central Queensland,46 and EnergyAustralia, • the experience and creditworthiness which announced in February 2017 its of counterparties and equity sponsors; second PPA in its $1.5 billion program • allocation of risks amongst the to acquire approximately 500MW of stakeholders (e.g. is there pass- renewable energy.47 through of change of law risk to the Organisations with high electricity counterparty under the PPA or off- consumption have also shown interest take agreement?); and in this area, including the Sydney • site assessment, including whether Metro Northwest Project, the City there are issues with development of Melbourne’s Renewable Energy approvals or issues from an Buying Group and the Queensland environmental liability perspective. Government.48 Despite these cash-flow opportunities, there are certain barriers to obtaining project financing, depending on the type of renewable energy project undertaken (e.g. the inability to obtain a PPA that sufficiently mitigates investment risks of debt and equity providers). Renewable energy in Australia - Funding and investment Corporate financing As an alternative to project financing, • the Commonwealth Bank of Australia developers may seek corporate (CBA) offers specific funding financing. arrangements for larger projects Unlike project financing, the developer that meet CEFC requirements. carries the project on their balance These facilities also qualify for an sheet and takes the risk of financiers energy efficient pricing discount. claiming against the assets of the As at June 2016, CBA’s lending developer in a default situation. exposure to renewable