Crookwell Development Pty Ltd v Independent Planning Commission

[2020] NSWLEC 1484

Land and Environment Court

New South Wales

Medium Neutral Citation:

Crookwell Development Pty Ltd v Independent Planning Commission [2020] NSWLEC 1484

Hearing dates:

Conciliation conference on 7, 14 August, and 14, 29 September 2020

Date of orders:

14 October 2020

Decision date:

14 October 2020

Jurisdiction:

Class 1

Before:

Clay AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application SSD 6695 for the installation, operation, maintenance and decommissioning of a wind farm of up to 16 turbines and associated infrastructure be approved subject to the conditions annexed and marked “A”.

(3) The Court notes the agreement between the parties that there be no order as to costs.

Catchwords:

DEVELOPMENT APPLICATION – wind farm – conciliation – only part of proposed development to be approved – agreement between the parties – orders

Legislation Cited:

Crookwell Local Environmental Plan 1994

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Mulwaree Local Environmental Plan 1995

State Environmental Planning Policy (Infrastructure) 2007

State Environmental Planning Policy No. 44 – Koala Habitat Protection

State Environmental Planning Policy (Rural Lands) 2008

State Environmental Planning Policy (State and Regional Development) 2011

State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011

Upper Lachlan Local Environmental Plan 2010

Cases Cited:

Addenbrooke Pty Ltd v Woollahra Municipal Council (No 2) [2009] NSWLEC 134

Texts Cited:

Draft Guidelines for Threatened Species Assessment (2005)

NSW Climate Change Policy Framework (2016)

NSW Planning Guidelines: Wind Farms (2011)

NSW Renewable Energy Action Plan (2013)

Wind Energy Framework: Standard Secretary’s Environmental Assessment Requirement; December 2016

Wind Energy Guideline; For State significant wind energy development; December 2016

Wind Energy: Noise Assessment Bulletin; For State significant wind energy development; December 2016

Wind Energy: Visual Assessment Bulletin; For State significant wind energy development; December 2016

Category:

Principal judgment

Parties:

Crookwell Development Pty Ltd (ACN 106 800 480) (Applicant)
Independent Planning Commission (ABN 38 755 709 681) (Respondent)

Representation:

Counsel:
A Galasso SC (Applicant)
D Hume (Respondent)

Solicitors:
Herbert Smith Freehills (Applicant)
Department of Planning, Industry and Environment (Respondent)

File Number(s):

2020/123021

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the refusal by the Respondent of a development application for the construction and operation of a wind energy facility (wind farm) on lands in the Upper Lachlan Shire on Woodhouselee Road and Crookwell Road in the order of 17km south-east of Crookwell and 25km north-west of Goulburn.

2. The proposed development is State Significant Development under s 4.36 of the EP&A Act because it is development for the purpose of electricity generation that has a capital investment value of more than $30 million.

3. The proposed development was amended during the course of its assessment by or on behalf of the Respondent, and after amendments the wind farm as finally proposed comprised up to a total of 23 turbines:

1. 17 turbines on land east of Woodhouselee Road having an area of about 1100 hectares known as the Eastern Cluster.

2. 6 turbines south of Crookwell road having an area of about 400 hectares known as the Southern Cluster.

4. On 7 August 2020 I presided over a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act).

5. At the conciliation conference the parties reached an agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to uphold the appeal and grant consent to part of the development the subject of the development application.

6. There was some time taken to resolve the necessary documentation and on 30 September 2020 an agreement pursuant to s 34 of the LEC Act was filed giving effect to the agreement in principle.

7. The effect of the agreement is that consent is to be granted to up to 16 wind turbines only. There are no turbines in the Southern Cluster to be approved. In the Eastern Cluster one of the proposed 17 turbines is not approved, leaving 16 to be approved.

8. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision the subject of the parties’ agreement is one the Court could have made in the proper exercise of its functions.

9. The parties’ agreement involves the Court exercising the function under s 4.16(1) and s 4.6(3) of the EPA Act to grant consent to development for which the consent is sought except for a specified part of that development.

10. The exclusion of nominated turbines by the imposition of an appropriate condition (condition 6 of Annexure A) amounts to a grant of consent to development for which the consent is sought except for a specified part of that development (see Addenbrooke Pty Ltd v Woollahra Municipal Council (No 2) [2009] NSWLEC 134 at [95] to [105]). The turbines which are approved are identified in Appendix 2 to the conditions at Annexure 1 by plan and map coordinates and the legal descriptions of the land to which they relate is in Appendix 1 to the conditions.

11. There are jurisdictional prerequisites that must be satisfied before the function to grant consent can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings in the following manner:

- Consistency with:

1. State Environmental Planning Policy (State and Regional Development) 2011;

2. State Environmental Planning Policy (Infrastructure) 2007;

3. State Environmental Planning Policy (Rural Lands) 2008;

4. State Environmental Planning Policy No. 44 – Koala Habitat Protection;

5. State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011;

6. Crookwell Local Environmental Plan 1994; and

7. Mulwaree Local Environmental Plan 1995.

- Consideration of Upper Lachlan LEP 2010 (as if a draft local environmental plan as it was when the development application was lodged, having regard to the savings provision).

- Consideration of the following policies which are relevant to the Proposed Development:

1. Draft Guidelines for Threatened Species Assessment (2005) prepared by the then Department of Environment and Conservation;

2. NSW Planning Guidelines: Wind Farms (2011) prepared by the then Department of Planning and Infrastructure (Draft Guidelines);

3. NSW Renewable Energy Action Plan (2013) prepared by NSW Trade and Investment;

4. NSW Climate Change Policy Framework (2016) prepared by the NSW Office of Environment and Heritage; and

5. Wind Energy Framework including Wind Energy Guideline; Visual Assessment Bulletin; Noise Assessment Bulletin (Bulletin); and Standard Secretary’s Environmental Assessment Requirements (2016) prepared by Department of Planning (Framework).

12. The parties are satisfied that the jurisdictional prerequisites for the proper exercise of power to grant consent have been met. My attention has been drawn to extensive material prepared by the Applicant and a detailed Assessment Report by the Department of Planning, Industry and Environment dated April 2009 in relation to the proposal as determined by the Respondent. Having regard to that material, taking into account that only part of the proposed development is to be approved I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

13. The development application for the Project was made by the Applicant with the consent of the owners of the land to which the development application relates, in accordance with regulation 49(1)(b) of the Environmental Planning and Assessment Regulation 2000.

14. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

15. The parties have agreed that there be no order as to costs. I do not have power to make a costs order other than as a consequence of an amendment to a development application (s 8.15(3) of the EP&A Act) which is not the case here. Accordingly I will only note the agreement between the parties to that effect.

16. The Court orders:

1. The appeal is upheld.

2. Development Application SSD 6695 for the installation, operation, maintenance and decommissioning of a wind farm of up to 16 turbines and associated infrastructure be approved subject to the conditions annexed and marked “A”.

3. The Court notes the agreement between the parties that there be no order as to costs.

……………………….

P Clay

Commissioner of the Court

Annexure A (1205582, pdf)

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Decision last updated: 14 October 2020