ACEnergy Pty Ltd v Griffith City Council

[2025] NSWLEC 1132

Land and Environment Court

New South Wales

Medium Neutral Citation:

ACEnergy Pty Ltd v Griffith City Council [2025] NSWLEC 1132

Hearing dates:

Conciliation conference 21 February 2025

Date of orders:

11 March 2025

Decision date:

11 March 2025

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application DA 99/2024 for a 5MW distribution battery energy storage system at 116 Cremasco Road, Yenda (Lot 1080 DP 257229), subject to conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – Electricity generation works – conciliation conference – agreement reached between the parties – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 23

Griffith Local Environmental Plan 2014, cll 2.3, 7.1, 7.10

State Environmental Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.36, 2.42, 2.7

Cases Cited:

Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223

Texts Cited:

Griffith Development Control Plan No 1

Category:

Principal judgment

Parties:

ACEnergy Pty Ltd (Applicant)
Griffith City Council (Respondent)

Representation:

Counsel:
L Mulligan (Solicitor) (Applicant)
K Glanville (Solicitor) (Respondent)

Solicitors:
Lindsay Taylor Lawyers (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2024/469925

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is a Class 1 appeal brought by the Applicant, ACEnergy Pty Ltd, under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of DA99/2024/, The development seeks consent for a 5MW distribution battery energy storage system (electricity generating works) at 116 Cremasco Road, Yenda (the site). The development will have a footprint of approximately 0.5 hectares and will include 10 containerised batteries, a Medium Voltage Power Station, high voltage switch gear and associated connection infrastructure including a power pole and electrical connection to the existing electrical infrastructure on Wood Road. The electricity generating works are proposed to be fenced. Acoustic barriers, fencing, carparking and new vehicular access are also proposed.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 21 February 2025.  I presided over the conciliation conference. At the conciliation conference, agreement was reached between the parties. This agreed decision involved the Court upholding the appeal and granting conditional development consent to the development application.

3. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that:

1. The development application was made with the written consent of the owners of the subject site: s 23 of the Environmental Planning and Assessment Regulation 2021. The development application was made by an agent of ACEnergy Pty Ltd, and the Applicant is entitled to bring the appeal: Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223 at [43].

2. The development application was notified by the Respondent between 5 July and 19 July 2024. No submissions were received.

3. Pursuant to s 4.6 of State Environmental Policy (Resilience and Hazards) 2021 (SEPP RH), a consent authority must not consent to the carrying out of development unless it has considered whether the land is contaminated. The development application is accompanied by a Preliminary Site Investigation. The Preliminary Site Investigation concludes that contamination from agricultural chemicals is not present on the site and that the site is suitable for the purpose proposed to be carried out under the application. I accept the agreement of the parties that s 4.6 of SEPP RH is satisfied.

4. Pursuant to Griffith Local Environmental Plan 2014 (LEP 2014), the land is zoned RU1 Primary Production. Development for the purpose of electricity generating works is prohibited in the RU1 Primary Production zone. However, the development for the purpose of electricity generating works is permissible on the land pursuant to s 2.36(1)(b) of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) as the land is in a zone prescribed as non-residential. Given the provisions of LEP 2014 and SEPP TI are inconsistent, pursuant to s 2.7(1) of SEPP TI the provisions of SEPP TI prevail. The proposed development is permissible with consent. Section 2.42 of SEPP TI does not apply to the development as the site does not fall into the definition of a ‘Regional City’ at s 4.24(4) of SEPP TI.

5. As required by cl 2.3(2) of LEP 2014, in determining the development application I have given consideration to the zone objectives that are extracted below:

•  To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

•  To encourage diversity in primary industry enterprises and systems appropriate for the area.

•  To minimise the fragmentation and alienation of resource lands.

•  To minimise conflict between land uses within this zone and land uses within adjoining zones.

•  To permit a range of activities that support the agricultural industries being conducted on the land and limit development that may reduce the agricultural production potential of the land.

•  To permit tourist facilities that promote an appreciation of the rural environment and associated agricultural and horticultural activities, while ensuring the continued economic viability of the land.

6. Relevant to cl 7.1 ‘Earthworks’, the development proposed includes ancillary earthworks including construction of a new vehicular access from Cremasco Road, footings for the electricity generating works, fence and power pole footings. I accept the agreement of the parties that the earthworks proposed are minimal. In determining the development application, I have given consideration to the matters listed at cl 7.1(3) of LEP 2014. None warrant the refusal of the development.

7. Pursuant to cl 7.10 ‘Essential Services’ of LEP 2014, development consent must not be granted to development unless the consent authority is satisfied that certain services that are essential to the development are available, or that adequate arrangements have been made to make them available when required. The development application will provide suitable vehicular access from Cremasco Road. The electricity required for the development is available. The parties agree, and I accept, that the essential services required for the development are available, or adequate arrangements have been made for them to be available when required for the development.

8. Griffith Development Control Plan No 1 (DCP) applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of the DCP. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

Conclusion

4. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act in s 34(3)(b) also requires me to “set out in writing the terms of the decision”.

5. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Orders

6. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA 99/2024 for a 5MW distribution battery energy storage system at 116 Cremasco Road, Yenda (Lot 1080 DP 257229), subject to conditions in Annexure A.

D Dickson

Commissioner of the Court

Annexure A

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Decision last updated: 11 March 2025