It Power (Australia) Pty Ltd v Mid-Western Regional Council

[2023] NSWLEC 1800

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

IT Power (Australia) Pty Ltd v Mid-Western Regional Council [2023] NSWLEC 1800

Hearing dates:

20-21 and 23 September 2022; 5-6 and 19 October 2022; 28 September 2023

Date of orders:

28 December 2023

Decision date:

28 December 2023

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) Development application no. DA0288/2019 for a 10MW solar farm and associated infrastructure at Lot 6 in Deposited Plan 1069441, also known as 3B Sydney Road, Burrundulla is determined by refusal of consent.

(3) The exhibits are returned except for A, B, G and H.

Catchwords:

APPEAL – development application – construction and use of a 10MW solar farm and associated infrastructure – Mid-Western Regional Local Environmental Plan (Transport and Infrastructure) (Map Amendment No 1) – State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.42(2) and (3) – whether the development is located to avoid significant conflict with existing or approved residential or commercial uses of land surrounding the development and is unlikely to have a significant adverse impact on the regional city’s scenic quality and landscape character – visually sensitive land near Mudgee – Mid-Western Regional Local Environmental Plan 2012, cl 6.10 – whether the proposed development will complement the visual setting forming the backdrop to Mudgee and will be designed, set back and sited to respond sympathetically to the landform of the site on which the development is proposed to be carried out and will minimise visual intrusion

Legislation Cited:

Electricity Infrastructure Investment Act 2020, Pt 4

Mid-Western Regional Local Environmental Plan (Transport and Infrastructure) (Map Amendment No 1), cl 2

Mid-Western Regional Local Environmental Plan 2012, cl 6.10

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.36, 2.42; Sch 6

Cases Cited:

Al Amanah College Incorporated v Minister for Education and Training [2011] NSWLEC 189

Inkerman Station Pty Ltd as Trustee for the Inkerman Station Trust v Allan (No 2) [2017] QSC 243

Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd [2021] NSWLEC 110

Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140

Texts Cited:

Central West and Orana Regional Plan 2036

Macquarie Dictionary (6th edition)

Mid-Western Regional Comprehensive Land Use Strategy 2017

Mid-Western Regional Local Strategic Planning Statement 2040

Mudgee and Gulgong Urban Release Strategy 2014

NSW Department of Planning and Environment, Technical Supplement – Landscape and Visual Assessment, Large Scale Solar Energy Guideline (August 2022)

NSW Office of Environment and Heritage, Land and Soil Capability Assessment Scheme 2012

Category:

Principal judgment

Parties:

IT Power (Australia) Pty Ltd (Applicant)
Mid-Western Regional Council (Respondent)

Representation:

Counsel:
A Hemmings with C Novak (Applicant)
M Wright SC (Respondent)

Solicitors:
Beatty Hughes & Associates (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2021/361625

Publication restriction:

Nil

JUDGMENT

Introduction

1. These proceedings arise following the Mid-Western Regional Planning Panel’s (the Panel) refusal of the applicant’s development application (DA0288/2019) (DA) for a 10MW solar farm and associated infrastructure at Lot 6 in Deposited Plan 1069441, also known as 3B Sydney Road, Burrundulla (site).

2. The site, which is located along the Castlereagh Highway within the Burrundulla Valley, is identified as being “visually sensitive land” under the Mid-Western Regional Local Environmental Plan 2012 (LEP). As such, the Council contends that it forms part of the backdrop to Mudgee, as the character of the landscape is visually appreciated from the southeast approach to Mudgee via the Castlereagh Highway, which is accepted to be “a main entrance corridor” to the town. In that context, the Council submits that the DA should be refused because I cannot be satisfied, as required by cl 6.10 of the LEP, that the development will “…complement the visual setting forming the backdrop to Mudgee”; and by its design, setback and siting “...respond sympathetically to the landform of the site and minimise visual intrusion”. It is also contended that the development does not satisfy s 2.42(2)(b) and (3) of State Environmental Planning Policy (Transport and Infrastructure) 2021 (T&I SEPP), which apply since the site has been marked within the area of the regional city of Mudgee.

3. In submitting that the amended development does satisfy all relevant planning controls, the applicant emphasised the regional significance of the project - in particular, the broader benefits of supplying electricity in an environmentally sustainable manner on the land. The site is serviced by an existing 22KV distribution line and presently identified as being within the area declared as the Central West Orana Renewable Energy Zone (REZ) for the purposes of Pt 4 of the Electricity Infrastructure Investment Act 2020. This consideration and the development’s minimal visual impacts and the capacity for co-location of agricultural pursuits on the land the applicant suggests supports an approval of the application.

Decision

4. Notwithstanding the relevant broader public benefits of the proposal: Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd [2021] NSWLEC 110 per Preston CJ at [66], for the reasons that follow, I have decided to refuse the DA and dismiss the appeal.

What is the development?

5. The proposal is nominated as integrated development under s 4.46 of the Environmental Planning and Assessment Act 1979 (EPA Act), with consent under s 138 of the Roads Act 1993 (Roads Act) sought. Following several amendments, the development comprises:

1. construction of approximately 25,000 solar photovoltaic (PV) panels placed on steel driven piles, typically driven 1.2 to 3.5 m into the ground;

2. installation of rotating solar modules with an array pitch of 6.25 m within each PV panel placed on galvanized steel driven piles up to a minimum 1.5 m, with a maximum overall height of each row of panels shown to be approximately 2.75 m from finished ground level;

3. construction of two 3MW inverters and transformer stations within the centre of each System arrangement, mounted on a skid base with an oil bund and having an overall maximum height of 2.77 m, also incorporating high and medium voltage switch gear (with the reservation of these areas for future ‘BESS Stations’ adjacent to the proposed inverter locations);

4. trenching of underground cables from the inverter stations to an existing 22kV power line at the northern end of the site, to allow for the connection of the proposed solar farm to the Essential Energy Mudgee Zone substation;

5. modified security fencing around the arrays - comprising galvanized wire chain-link and barb wire toppers to a height of maximum 2.3 m, with one main access gateway from the Castlereagh Highway and one side access gate from the western side. (To facilitate the proposed road works within the public road, the application seeks approval under s 138 of the Roads Act);

6. construction of one laydown and car parking area, reduced from three, and located outside of the security fencing and within the 200 m front setback from the Castlereagh Highway;

7. modified landscaping layout (dated 1 July 2022) incorporating earth mounds at specific locations on the site including within the front setback and south-eastern side setback and landscaping which includes:

1. native screen planting 10 m wide;

2. mounding (max 1:5 slope to 3 m tall) with scattered trees in pasture; and

3. scattered trees in pasture; and

8. modified setbacks to the site boundaries and to the Castlereagh Highway, including:

1. a 200 m setback to the security fencing from the Highway, a minor increase from 190 m;

2. a 100 m setback to the security fencing from the eastern boundary, an increase from 20 m;

3. a 50 m setback to the security fencing from the western boundary, a minor reduction from 54 m; and

4. a 95 m setback (Area A) and 250.5 m setback (Area B) to the security fencing from the southern boundary, a reduction in Area A from 125 m.

Facts

6. The essential facts follow.

7. The site is vacant, slightly undulating agricultural land located to the south of the Castlereagh Highway, approximately 2.4 km from the entrance to the Mudgee town centre. As already stated, the Castlereagh Highway is the primary road from Sydney to Mudgee and identified as a main entrance corridor to Mudgee in the “Mudgee Town Structure plan” (Fig 3-1, p 42 of the Mid-Western Regional Comprehensive Land Use Strategy 2017). The site is mapped as “Visually Sensitive Land” pursuant to the Visually Sensitive Land (VSL) Map referred to in cl 6.10(1) of the LEP. The objective of this clause is stated “… to protect the visually and environmentally significant land on the urban fringe of the town of Mudgee”.

8. To the west of the site is a cellar door in the same ownership as the site (Lot 5 in DP 10694441). To the immediate east and south of the site is the property known as 312 Castlereagh Highway, which contains a dwelling house (occupied by the Rusten family). The dwelling house is located less than 100 m behind the rear boundary of the site. Further to the east of the site is a property known as 344 Castlereagh Highway, on which is located a dwelling house (the Azar residence) and a cottage used for short-term accommodation. The Azars provide a farm-stay experience to their guests using their front paddock.

9. The surrounding area is otherwise best described as existing farmland with associated dwellings and smaller rural lifestyle holdings to the east and south. The site and the surrounding land are identified as “Class 3 - High Capability land” pursuant to the NSW (Office of Environment and Heritage) Land and Soil Capability Assessment Scheme 2012. In other words, it is land of “High Capability” classification with moderate limitations and capable of sustaining high impact uses such as cropping and cultivation.

10. Located within zone RU4 Primary Production Small Lots, pursuant to the LEP, the proposed use of the site for an electricity generating works is permissible with consent. The objectives of the RU4 Primary Production Small Lots zone are:

• To enable sustainable primary industry and other compatible land uses.

• To encourage and promote diversity and employment opportunities in relation to primary industry enterprises, particularly those that require smaller lots or that are more intensive in nature.

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

• To ensure that land is available for intensive plant agriculture.

• To encourage diversity and promote employment opportunities related to primary industry enterprises, particularly those that require smaller holdings or are more intensive in nature.

11. The development is also permissible with consent on the site under s 2.36 of the T&I SEPP.

12. Although the site is within the mapped area of the REZ, the Council highlights that the revised study corridor for potential renewable energy developments within the REZ does not include the site, or any land on the southeast side of Mudgee. Instead, the REZ corridor identifies three energy Hubs at Elong Elong, Merotherie and Uarbry, all of which are to the northwest of Mudgee.

13. The acceptability of the impact of the development upon existing public and private views was a central issue. Of the 70 viewing points assessed by the parties’ experts the Court was taken to those considered to be the worst affected properties. The agreed methodology used to assess the view impacts was based on the Technical Supplement – Landscape and Visual Assessment, Large Scale Solar Energy Guideline (August 2022) (Ex K) (2022 Solar Guide).

14. While the focus of the 2022 Solar Guide is large-scale solar farms, the evidence is that the Guide encourages councils and planning panels to use it for the assessment of development applications for regional solar (Tcpt, 5 October 2022, (lines 10-20)).

15. As Ms Hemmings, the applicant’s counsel helpfully explained - the 2022 Solar Guide sets out several steps for visual magnitude assessment using panoramic photographs from agreed locations to form a photomontage to assist in the assessment of a development’s visual impact. Each photomontage is examined using a visual magnitude grid which reduces the photo to cells which are then counted to give a visual magnitude rating. The rating is then compared to the thresholds in Table 4 of the 2022 Solar Guide to assess viewpoint sensitivity and assist categorisation as being either “low scale quality”, “moderate scenic quality” and “high scenic quality” which in turn inform view impact (Tcpt, 21 September 2022, pp 74-75). The experts’ report refers to the various ratings from agreed vantage points and most result in a low impact rating. Cross-examination, however, elicited some criticism as to the reliability of the assessment process employed. For example, the appropriateness of the inclusion of the mounds as part of the development to assess view impact and then adding the vegetation as the mitigation measure (Tcpt, 5 October 2022, pp 231-234); the choice of camera lens used to influence what is captured in the photograph used to assess view impact; the location from which the photograph was taken (agreed to be representative) - but inevitably failing to capture every relevant adverse viewing impact (Tcpt, 5 October 2022, p 241(20-30)).

16. Given the subjective nature of the visual impact evidence in this case, I have been careful to weigh it with all the evidence in my assessment of the DA. Including my own observations of the development’s visual impacts from public and private vantage points during the site inspection with the plans and oral evidence of the parties’ experts and affected landowners.

Objectors’ evidence

17. There are approximately 29 residential dwellings located within a 1 km radius of the site and a large number of these local residents have expressed strong opposition to the development. Several spoke to their written objections at the site view held at the commencement of the hearing (Exs 4 and 5). Many of them expressed the view that the proposed solar arrays will be a visual intrusion into the scenic qualities of the surrounding rural setting which forms the backdrop to Mudgee. Collectively, they reject the applicant’s attempts to minimise the visual intrusion of the development from sensitive locations, particularly the main entrance corridor to Mudgee, by relying on uncharacteristic landscaping in the form of vegetated earth mounds.

18. The Rusten and Azar properties adjoin the site. Both owners addressed the Court at the site view and expressed strenuous objection to the proposal.

19. The Azars from 344 Castlereagh Highway gave evidence that they operate a farm-stay business from their property. The Court inspected their property and observed the farm-stay cabins and front paddocks and driveway which they explained are used as part of their farm-stay experience. They said their guests’ first impressions of that rural experience is taken from their long 1 km driveway which travels along the boundary with the development site. Presently that view is to an open rural vista. However, if the development is approved, the Azars believe it will change to an uncharacteristic landscape, containing vegetated long mounds and solar arrays and impact negatively on their existing farm-stay business. A business which they intend to develop and expand - as evidenced by their recent development consent to build more accommodation cabins on their land (Annexure G - Chambers report). Mr Barwick, the Council’s expert, is also concerned about the view impact of the development from the Azar’s property particularly the driveway for residents and guests to the residential accommodation. In his oral evidence to the Court, he said “…the arrival experience is quite important …you would be traversing past, either as a resident potentially multiple times a day, and visitors to a and from the property as well”.

20. To be plain, the experts accept that the central portion of the western solar panel array will be visible where the landform dips on the Azar’s driveway. In this area, the solar panels would be viewed at a distance of about 450 m, the panels would be aligned north to south across the view, so that the closest panel array would screen those behind and appear as a thin linear shape extending across a field in the centre view. However, as noted earlier, there is disagreement about the acceptability of the impact of the development on the adjoining neighbour’s use of the land and views. The Council’s planner, Mr Barwick, is of the opinion that there will be a moderate to high magnitude of change to this view whereas the applicant’s visual expert, Ms Rawlinson, is of the opinion that there would be a very low magnitude of change because there will be a screening effect of the proposed mounding at day one and the effect complemented by the proposed scattered trees in the longer term. In this view, Ms Rawlinson gave evidence that the proposed mounding along the eastern side of the eastern solar farm array would screen any views to the southern and northern ends of the panel array. She also believes that the panel arrays would have a low profile and sit below the backdrop of trees and the mountains which, in her opinion, form the backdrop to Mudgee. In that context, she believes that the view to the surrounding hills and the row of trees within the fields beyond the solar farm would remain visible, so that the view to these valued features would be protected. The Court was able to appreciate this evidence and experience the relevant existing view during the hearing from the Azar’s driveway and front paddock.

21. The Rustens of 312 Castlereagh Highway have lodged several objections to the development (pp 20-24, 462-478, 496, 498, and 671-676 of the Council’s bundle). They are primarily concerned about the visual impact of the landscaped long mounds and solar arrays from the front veranda of their heritage property. They believe such proposed view will be a negative visual experience that will detract and conflict with their existing rural residential amenity.

22. The neighbours across the Highway at 345 Spring Flat Road invited the Court onto their rural property to appreciate their present amenity and the impact of the development particularly from their front porch. They are concerned about the negative impact on their wedding venue business. They also oppose the development as they believe that the solar rays and mounds will be visible from their site and have a negative impact on their present amenity.

23. The Court also travelled to residences that look down on the site of the solar development within the valley floor - such as the owners of 446 Rocky Waterhole Road, who described the development as a negative intrusion into the existing rural setting and landscape. They were concerned about glare from the solar arrays when rotating; but, that aspect of the development has since been resolved by conditions of consent which the applicant consents.

24. The owner of the land Mr C Cox gave evidence in the Court in support of the DA. He owns the adjoining vineyard and describes the site (Lot 6) as “definitely the worst of our land” (Ex 2). He said that having a solar farm development at the site would allow him to make a more meaningful use of the land than cropping, which is susceptible to weather and seasonal changes and market pressures.

The planning framework

25. The following State and local environmental plans and policies apply to the development site:

1. State Environmental Planning Policy (Planning Systems) 2021

2. State Environmental Planning Policy (Resilience and Hazards) 2021

1. State Environmental Planning Policy (Transport and Infrastructure) 2021 (T&I SEPP) – Ch 2

2. Amendment to T&I SEPP in December 2022

3. State Environmental Planning Policy No—44 Koala Habitat Protection – Sch 1

4. Mid-Western Regional Local Environmental Plan 2012 (LEP)

5. Mid-Western Regional Development Control Plan 2013 (DCP)

Chronology of events

26. The protracted nature of these proceedings needs to be explained. The DA was refused by the Panel on 21 December 2020. This appeal was filed on 21 December 2021, and the hearing was completed with judgment reserved on 19 October 2022.

27. On 16 December 2022 the Mid-Western Regional Local Environmental Plan (Transport and Infrastructure) (Map Amendment No 1) was published on the NSW Legislation website (Map Amendment LEP). The Map Amendment LEP took effect on and from the same date and contained no savings provisions (cl 2).

28. The effect of the Map Amendment LEP is that Mudgee and the surrounding land shown as the “subject land” on the map attached to the Map Amendment LEP is now a regional city for the purpose of s 2.42 of the T&I SEPP. As the site is now within the mapped area, s 2.42 of the SEPP is a relevant consideration in my assessment of this DA (Sch 6 of the SEPP) and a matter about which I must be satisfied before the grant of any development consent.

29. Section 2.42 of the T&I SEPP provides as follows:

(2) Development consent must not be granted unless the consent authority is satisfied that the development –

(a) is located to avoid significant conflict with existing or approved residential or commercial uses of land surrounding the development, and

(b) is unlikely to have a significant adverse impact on the regional city’s –

(i) capacity for growth, or

(ii) scenic quality and landscape character.

(3) In determining whether to grant development consent, the consent authority must consider measures proposed to be included in the development to avoid or mitigate conflicts referred to in subsection (2)(a) or adverse impacts referred to in section (2)(b).

30. This change to the planning law required my reopening of the hearing to allow the parties an opportunity to address the new precondition to consent.

31. To assist focus of the further hearing, I allowed the Council to file a further Amended Statement of Facts and Contentions (ASOFC) on 20 February 2023. It amended Contentions 1.2 and 1.4 of the original SOFC to raise the following issues in respect to s 2.42 of the T&I SEPP:

“Contention 1.2 (Visual impact):

At particular (f) – that the DA must be refused, pursuant to s2.42(2) (b) of the T&I SEPP, because the proposal will have a significant adverse impact on the scenic quality and landscape character of the land mapped as regional city.

At particular (g) – that the DA should be refused, pursuant to s2.42 (3) of the T&I SEPP, because the mitigation measures proposed in the DA will themselves have significant adverse impacts on the scenic quality and landscape character of the land mapped as “regional city”.”

“Contention 1.4 (site suitability)

At particular (j), that the DA should be refused pursuant to cl 2.42(2) (a) of the T&I SEPP because the proposal would be in conflict with:

(a) the residential dwelling at 312 Castlereagh Highway

(b) the residential dwelling and farm stay at 344 Castlereagh Highway;

(c) the residential dwelling at 446 Rocky waterhole Road, Burrundulla; and

(d) the commercial use of 345 Spring flat Road as a wedding venue.”

32. On 28 February 2023, the applicant filed an amended Statement of Facts and Contentions in Reply.

33. The parties were also given leave to file the following supplementary expert evidence:

1. Visual impact report of Suzanne Rawlinson filed by the applicant on 16 March 2023 (Rawlinson report);

2. Town planning report of Bob Chambers filed by the applicant on 17 March 2023 (Chambers report);

3. Town planning report of Scott Barwick filed by the Council on 4 April 2023 (Barwick report); and

4. Supplementary joint expert report of Scott Barwick, Suzanne Rawlinson and Bob Chambers dated 11 May 2023 (Supplementary JER).

34. This further expert evidence needs to be read with the expert evidence received by the Court at the first hearing, namely:

1. Vegetation joint expert report of Paula Kennedy and Suzanne Rawlinson filed 13 September 2022 and being Ex 9 in the proceedings (Vegetation JER);

2. Town planning joint expert report of Scott Barwick, Suzanne Rawlinson and Robert Chambers, filed 14 September 2022 and being Ex C in the proceedings (Planning JER);

3. Engineering joint expert report of Don Cottee and Andrew Norris filed 20 September 2022 and being Ex 8 in the proceedings (1st Engineering JER);

4. Supplementary engineering joint expert report of Mr Cottee and Mr Norris dated 30 September 2022 and being Ex T in the proceedings (2nd Engineering JER); and

5. Glare joint expert report of Dr Peter Georgiou and Suzanne Rawlinson dated 4 October 2022 and being Ex S in the proceedings (Glare JER).

35. The second hearing took place on 28 September 2023 and supplementary written submissions were received on 28 September 2023.

Evaluating the evidence

36. The applicant’s final submissions rely heavily on the agreements in the experts’ joint report in submitting that the dispute between the parties is now limited to Contentions 1.1(h), 1.2(b), 1.4, 1.5, 2.1 and 2.8 (Applicant’s Written Submissions (AWS) at pars 32-61). However, as the Council identifies (Council’s Supplementary Written Submissions (CSWS) at par 21) and cross-examination of the experts revealed there were fundamental flaws in the approach the experts adopted in the visual and planning expert conference in how they addressed cl 6.10 in the joint report. Put simply, these experts misunderstood the ambit of cl 6.10 of the LEP and as, I have already referred to, misapplied some aspects of the 2022 Solar Guide (Ex K) that they agreed to use as a Guide for their assessment of view impact.

37. For those reasons, I accept as the Council submits, certain aspects of the written evidence in the Planning JER and other documents need to be treated with some caution.

38. There are two other matters raised in the parties’ written submissions that also need to be addressed. The first is the Council’s submission that the applicant’s experts were at times unresponsive, when questioned, and prone to offering submissions favourable to the applicant. This somewhat diminished the assistance their evidence should give to the Court (Council’s Written Submissions (CWS) dated 21 October 2022 at pars 27-31 and footnote 7 of transcript references). By contrast, Mr Barwick was concise and objective in his answers.

39. The applicant strenuously rejected these allegations in detailed submissions and invited me to do the same (AWS in Reply at pars 11-25).

40. To be clear, I do not accept that any of the witnesses intentionally gave less than objective evidence, even if at times they sought to emphasise the correctness of their own opinions. However, in deciding this case, I must inevitably prefer the evidence of one expert over the other and I will endeavour to explain the reasons for doing so in due course.

41. The next matter concerns the applicant’s submission that the Council’s testing of evidence through cross-examination was “…conduct which was obvious as a blatant attempt to avoid the agreements in the joint expert reports by the Council’s own expert witnesses which do not support the Council’s contentions in the ASOFAC” (AWS in Reply at par 5; Tcpt, 23 September 2022, pp 147(5)-148(11)).

42. As statutory interpretation is a legal matter, it was clearly appropriate that the experts’ written evidence was evaluated in oral examination and alternative interpretations of the planning legislation interrogated. In some instances, when an alternate interpretation of the clause was offered the expert changed or supplemented their earlier written evidence. In those circumstances, my determination of this matter cannot rest upon the text of the joint reports without proper regard to the experts’ subsequent oral evidence – as my overlooking of any critical evidence would be an error of law: Muscat Developments Pty Ltd v Wollondilly Shire Council [2023] NSWLEC 121 at [46]-[47] (per Preston CJ).

Contentions

43. The contentions in these proceedings include the following:

1. Contention 1.1: impact on visually sensitive land as defined in cl 6.10 of the LEP and the matters raised in s 2.42(2)(a) and (b) and s 2.42(3) of the T&I SEPP.

2. Contention 1.2: that the proposal has adverse visual impacts.

3. Contention 1.4: that the site is unsuitable for the proposal.

4. Contention 1.5: the provisions of essential services to the site, in particular arrangements for the provision of water; and electricity

5. Contention 1.8: the public interest.

T&I SEPP

44. It is appropriate to deal with the T&I SEPP before the local planning provisions. They require different considerations. This is relevant because the Council’s expert, Mr Barwick, departs from his previous written and oral evidence in addressing s 2.42(2)(b)(ii) of the T&I SEPP. The applicant is critical of this (AWS at pars 21-22). However, I do not accept that criticism when the provisions clearly identify different mandatory considerations (Ex C) to those raised by cl 6.10 of the LEP albeit at times similar topics

Contention 1.4: Site suitability (T&I SEPP s 2.42(2)(a))

45. The Council contends pursuant to s 2.42(2)(a) of the T&I SEPP, the DA must be refused because the Court could not be satisfied that the development is located so as to avoid significant conflict with the existing approved residential and commercial uses of the land surrounding the development, including the use as a property as farm-stay accommodation. It submits that the development would result in a significant conflict with:

1. The residential dwelling at 312 Castlereagh Highway (Rusten);

2. The residential dwelling and farm-stay accommodation at 344 Castlereagh Highway (Azar);

3. The residential dwelling at 446 Rocky Waterhole Road, Burrundulla (Stewart); and

4. The commercial use of 345 Spring Flat Road as a wedding venue (Goble and Reece).

46. As Mr Barwick identifies the Supplementary Report of Mr Chambers (the Chambers report) has gone to a significant effort to determine the relevant meaning of the phrase “...existing or approved residential or commercial uses of land...” within s 2.42(2)(a) of the T&I SEPP. However, the methodology adopted by Mr Chambers is, as Mr Barwick suggests, overly technical and it is far more relevant to consider if the land uses surrounding the proposal are for the purpose of a dwelling or commercial activities.

47. As it happened, the experts appear to have agreed that with respect to particular (j) of Contention 1.4 in their individual and supplementary reports for the purpose of the T&I SEPP the Rusten property, the Azar dwelling and the Stewart dwelling should be considered as residential uses; and the Azar farm-stay accommodation should be considered commercial use (Supplementary JER at par 53).

48. It is also agreed that there is no significant conflict between the DA and the Stewart and Goble and Reece properties (Supplementary JER at par 55).

49. That said, two properties remain in dispute: the Rusten dwelling, and the Azar dwelling and farm-stay accommodation.

Mr Barwick’s evidence on land conflict

50. Mr Barwick gave evidence that the process of land use conflict assessment is primarily driven by the undertaking of a sound site selection process. The assessment focus of the T&I SEPP is to “avoid significant conflict”. “Conflict” as defined in the Macquarie Dictionary (Sixth edition) means:

• “clash;

• be in opposition or variance; and

• discord of action, feeling or effect”.

51. He proposed the consideration of visual impact consistent with the 2022 Solar Guide is only part of the equation.

52. Mr Barwick accepted that from the dwelling the development is substantially screened. However, the conflict arises from the viewing points to the arrays from the entry driveway to the dwelling running along the south-eastern boundary.

53. Mr Barwick said for both the Rusten and Azar properties the gap in the mounds along the respective driveways for approximately 100 m allows views to the solar arrays. Every coming and going to the properties would pass the solar-generating facility on the site, a visual element that is not currently experienced in the locality and will significantly alter the scenic quality and landscaped character of the locality. The Azar’s driveway also provides access to the farm-stay accommodation and will provide access to a further farm-stay accommodation building granted by development consent on 22 November 2022 (Consent DA0450/2022). The farm-stay accommodation is part of an overall farm-stay enterprise – a commercial use of the land. The rural landscaped character of the Azar property and the properties around it are an intrinsic part of the experience offered. The introduction of an uncharacteristic development of a solar farm into this landscape will conflict with this commercial use, which Mr Barwick has assessed is underpinned by the offer of a rural experience in a rural landscaped setting. For those reasons, he has assessed that the introduction of the solar array is a discordant element that alters the landscape character of the area and the character experienced in the arrival and departure from the dwelling.

54. From the Azar dwelling and farm stay, Mr Barwick has assessed - using the 2022 Solar Guide that the farm stay is a tourist and visitor accommodation and therefore has a moderate viewpoint sensitivity. He has assessed the driveway experience and impact on the dwelling as similar to that ascribed to the Rusten dwelling except with greater physical distance. That said, he gave evidence that “the entry sequence turning off the Castlereagh Highway into the property and traversing in a south westerly direction is an important first impression to guests and visitors”. The view analysis confirms visibility of the arrays through the gaps in the complex of landscaped mounds proposed; and that these views are in conflict with the rural experience that would normally be associated with a farm-stay experience.

55. Mr Barwick has assessed the level of conflict at the Stewart dwelling as less than that experienced by the Azars and Rusten dwellings because the entry driveway does not include views to the arrays. He gave evidence that the level of change in the landscape character from this property is much less than that experienced at the Azars and Rusten dwellings with the level of conflict for the Globe and Reece wedding venue property being minimal.

56. Ms Rawlinson and Mr Chambers are of the opinion that the view from a short section of a 1 km driveway would not materially alter the arrival and departure experience of visitors to the Azar property given the distance of the views, screening of the mounds and low profile of the solar arrays would not cause land use conflict. They believe that the proposal has been designed to be compatible with the environment and land uses which surround the site.

Finding - T&I SEPP s 2.42(2)(a)

57. For the reasons outlined by Mr Barwick and not just confined to views, I find, as the Council submits, that in this regional location the driveway to a property can be lengthy and forms part of the “communication to visitors” or entry sequence to a property (Barwick report at pars 56 and 60). Therefore, it is an important aspect of the experience or perception of place.

58. Such perception is greater at the Azar’s farm-stay development which adjoins the site. As the Azars explained to me at their property, the first impression of guests at the farm stay will have the potential to significantly influence their sense of place and their subsequent enjoyment of the rural farm-stay experience. The mounding around the solar farm visible from their property, particularly their entry driveway, would remove and diminish the view of an open vista across a valley floor leading to the hills in the distance which would otherwise be enjoyed (Supplementary JER at pars 30(b),32(b) and 33(b)). The recent development consent to increase the number of cabins on the Azar property (Annexure G to the Chambers report) supports the proposition that there is an even greater potential for visitors to their farm-stay enterprise. For the reasons identified by Mr Barwick and based on my observations, I am of the opinion that an approval of the development would have significant conflict with the existing commercial use at that adjoining site. Therefore, I find that I am not satisfied that the development is located to avoid significant conflict with the existing or approved residential or commercial uses of land surrounding the development.

Contention 1.2: Visual impacts (T&I SEPP s 2.42(2)(b) and (3))

59. The Council contends that pursuant to s 2.42(2)(b) of the T&I SEPP, the DA must be refused because the Court could not be satisfied that the development is unlikely to have a significant adverse impact on the scenic quality and landscape character of land mapped as ‘regional city’; and that the DA should be refused, pursuant to s 2.42(3) of the T&I SEPP because the mitigation measures proposed in the DA will themselves have significant adverse impacts on the scenic quality and landscape character of the land mapped as regional city.

60. Section 2.42 mandates the matters about which the Court must be satisfied in order to grant development consent to the development of electricity generating works using solar or wind energy source that are regionally significant.

61. Under s 2.42(3) that consideration includes measures proposed to be included in the development to avoid or mitigate conflicts referred to in subs (2)(a) or adverse impacts referred to in subs (2)(b).

62. The terms “scenic quality” and “landscape character” are not defined in the T&I SEPP yet, being specifically identified in the clause they clearly have separate and distinct meanings.

63. The Council submits that “scenic quality” can be assessed by reference to an area’s visual characteristics, as it is similar (but not identical) to the assessment of the development’s visual impact on the area (CSWS at pars 17-18). Whereas “landscape character” is more than a visual exercise.

64. Adopting the meaning in the 2022 Solar Guide, the Council submits that “landscape character” is an assessment to determine the “overall impact of a project on an area’s character and sense of place including what people think and feel about it and how society values it” (Annexure D to Rawlinson report p 8).

65. Part 2 of the 2022 Solar Guide contains specific guidance for the preparation of landscape character assessments requiring a consideration of how the project will impact on “the elements that make up the landscape, the aesthetic and perceptual aspects of the landscape and its distinctive character as well as its sense of place”. The Guide also draws a distinction between an assessment of landscape character and a visual impact assessment. It states the landscape character assessment as “distinctly different from visual impact assessment which is solely focussed on individual views”.

66. That said, the detailed requirements for landscape character assessment in the 2022 Solar Guide as stated include consideration of:

“a. the physical influences on a place (including geology, soils, landform, drainage and the like);

b. ecological characteristics and land cover;

c. the influences of human activity;

d. the aesthetic and perceptual aspects of the landscape, including key characteristics such as scale, complexity, openness, tranquillity or wildness;

e. aspects of the landscape that have important aboriginal cultural heritage values; and

f. the planning designations relating to the area (which would include, in this case, clause 6.10 of the MWRLEP), including sensitive land use designations, zonings, and heritage listings” (CSWS at par 22)

67. The Council submits that the landscape character assessment in the Rawlinson report does not satisfactorily address s 2.42(2)(b)(ii) of the T&I SEPP. It gives cursory (if any) consideration to the requirements of the 2022 Solar Guide at p 8 which she accepted as relevant to her assessment of landscape character for the purposes of the SEPP. Neither does the report canvas any consideration of aspects of the landscape that have important Aboriginal cultural heritage value. (Associations are suggested in the name Mudgee which is derived from the Wiradjuri language term “Moothi” meaning “nest in the hills”). Instead, Ms Rawlinson’s report is entirely focussed on the visibility of the development from various locations and the impact on the “key landscape features” that she thinks are important (Annexure C, p 11). As such, her assessment is primarily a views-and-visual-impact analysis rather than a landscape character assessment for the purposes of s 2.42(2)(b)(ii) of the SEPP, and her focus without regard to the cultural and deeper aspects of the landscape character held by affected landholders and the broader local community. She offers no assessment of the sense of place they attach to the site and area and no indication of any satisfactory evaluation of the evidence given by the most affected by the proposed development, such as the Azar family and Rusten family, in respect to their experience of the landscape character of the locality – their sense of place. This omission is not remedied by reliance on historic consultation for a different purpose to that required by this section of the SEPP.

68. Additionally, the Council submits that that the applicant’s failure to consider community views or values as expressed in the voluminous lay evidence in these proceedings as part of the landscape character assessment is a significant flaw. Without a baseline qualitative assessment of the existing landscape values and characteristics, it is impossible to quantify the significance of the change introduced by the proposed development (Rawlinson report Annexure D p 8). The report does not answer the description of a landscape character assessment for the purpose of s 2.42(2)(b)(ii) and, therefore, I am not satisfied that the development is unlikely to have a significant adverse impact on the regional city’s landscape character.

69. It is also submitted that Ms Rawlinson’s assessment of scenic quality for the purposes of the T&I SEPP carries a similar defect. The 2022 Solar Guide definition of “scenic quality” includes the requirement to take into consideration community values. Neither Ms Rawlinson nor Mr Chambers considered community views or values when addressing this section of the SEPP. Ms Rawlinson’s assessment is, as the Council submits, essentially a restatement of her earlier visual assessment which was prepared without regard to the particular characteristics of the site.

70. Leaving aside the deficiency of the assessment of the applicant’s assessment of landscape character and scenic quality, the Council submits that I would refuse consent because it cannot be satisfied that the development is unlikely to have a significant adverse impact on the regional city’s scenic quality and landscape character because the development:

“a. proposes dense landscape planting on the man-made mitigation mounds which are proposed to be permanent;

b. the mounding is objectively greater in scale than any other mounding in the vicinity of the site. It is a permanent change to the landscape far greater in extent that (sic) any existing farm dam;

c. the solar farm array itself (without the mounding and added vegetation), is far greater in footprint than any existing structure or development on the floor of the Burrundulla Valley and in particular at the entry point to Mudgee. The solar array is fundamentally different to existing agricultural character of the valley floor;

d. the mitigation mounding and landscape plantings will fundamentally change the outlook when viewed from 312 Castlereagh Highway (‘Rusten Property’) and 344 Castlereagh Highway (‘Azar Property’); and

e. it is clear on the evidence of the community response to this Proposal that the predominantly agricultural character of the valley floor at this sensitive entry point to Mudgee will be fundamentally changed.” (CSWS p 7)

71. Section 2.42(3) of the T&I SEPP requires that:

(3) In determining whether to grant development consent, the consent authority must consider measures proposed to be included in the development to avoid or mitigate conflicts referred to in subsection (2)(a) or adverse impacts referred to in subsection (2)(b).

72. The earthwork mounds proposed are mitigation measures as part of the proposal for the sole purpose of screening the solar arrays and mitigating what would otherwise be an unacceptable visual impact. When considering that measure with its landscaping, the Council submits that I would conclude that the unacceptable visual impacts of the mitigation measures (the mounds and landscaping) themselves in this visually sensitive landscape of the Burrundulla Valley alone warrant refusal of the DA under s 2.42(3) of the T&I SEPP.

73. The Council submits on the evidence of Mr Barwick the mounds materially alter the landscape character of the area by foreshortening existing views across the floor of the valley and by materially altering the existing landscape when viewed from the neighbouring properties and from the Highway approaching Mudgee (Barwick report at pars 30(b), 32(b), 32(b) and 33(b)).

74. The applicant submits on the evidence of Mr Chambers and Ms Rawlinson that the solar arrays are low rise and will be screened by 3 m high mounds and landscaped. They refer me to the relationship between the mounds and the Castlereagh Highway as shown on Section DD on Figure 6: Long Section in the Landscape Concept plan (Annexure C) to support their view that the mounds will have no material impact on the view to the west from Castlereagh Highway.

Finding – T&I SEPP s 2.42(2)(b) and (3)

75. Having considered measures proposed to be included in the development to avoid or mitigate conflicts referred to in subs (2)(a) or adverse impacts referred to in subs (2)(b), I remain unsatisfied that the development is unlikely to have a significant adverse impact on the regional city’s scenic quality and landscape character.

76. In forming that view I accept that the impact needs not to be one which impacts on the entire area mapped as regional city under the T&I SEPP; that mapped area had a radius of 10 km around the city of Mudgee.

77. None of the experts suggest that in order to offend s 2.42(2)(b) of the T&I SEPP a particular development needs to impact significantly and adversely the entire area of the mapped city. Instead, as Mr Barwick said, the assessment that needs to be undertaken is on a location-by-location basis (Supplementary JER at par 42).

78. It is sufficient that an impact affects a particular location within the area mapped as regional city for it to have an impact on the regional city. The significance of the impact will then in each case be a matter of fact and degree; and, in this case, as Mr Barwick identifies (and I understand from the site view), the most significant adverse impact is the change in the “openness” of the landscape character along the corridor to the town resulting from the introduction of the necessary mitigation mounds (Barwick report at pars 42-43).

79. In considering the impact of the proposed facility against the provisions of the T&I SEPP, it is of assistance to refer to the landscape character zones identified in Annexure C of the Rawlinson report at Section 2.1.1.4.

80. The valley floor, within which the solar array is proposed, is characterised as undulating rural plains. The description of the views, either side of the Castlereagh Highway, are described as “...forming the fore and middle ground areas of the views experienced from the southern approach to Mudgee”. The description continues “[t]here is a sense of enclosure from within this area, with undulating landform directing views over the landscape to the surrounding hills, which reduce the visible sky”. Mr Barwick notes that Ms Rawlinson's description acknowledges that the views across the undulating valley, framed by the forested ridgelines and hills and rural hills, are, taken as a whole, and that the view and outlook that is important as the entry experience approaching Mudgee from the south and within the valley floor.

81. It is this openness of the entry view from the valley floor which in my assessment of the evidence “will significantly adversely be impacted upon by the development" – principally the mitigation mounds.

82. Put simply, the openness of the landscape character will be irreversibly changed by the development and the mitigation measures (with the mounds) will, as Mr Barwick observes, "foreshorten the rolling views across the valley". I accept this to be the fact based on my observations of the site and locality from the Highway and a consideration of Ms Rawlinson and Mr Chamber’s written and oral evidence and the landscape plans.

83. The "openness of the views" (an open landscape character that I observed and experienced at the site view) is the identified important characteristic of this landscape and the importance of its contribution to landscape character of the locality and the regional city cannot be underestimated. I am not satisfied that the foreshortening of that outlook as anticipated by Mr Barwick by the permanent mitigation mounds is unlikely to have a significant adverse impact on the regional city’s scenic quality and landscape character.

84. No doubt, the introduction of the solar arrays development to the site without the mitigation mounds would, as the experts agreed, introduce an incompatible element such as would generate a significant adverse impact. Likewise, the proposed mitigation measures would alter the existing character of the landscape to a degree that the view would no longer be the view type across a rolling landscape to the undulating landform; no longer directing views over the landscape to the surrounding hills. The adverse impact on the existing landscape character is likely and significant.

85. Ms Rawlinson was cross-examined at some length by Council’s senior counsel, Mr Wright, about the deficiencies of her analysis in the supplementary report. In particular, her failure to canvas community views about their sense of place or Aboriginal cultural relevance when assessing landscape character. Ms Rawlinson said that she took these matters into account through a consideration of the planning controls. She said “I've increased the sensitivity because of those planning controls … Through the planning controls and through our understanding of what the broader community considers having landscapes of higher scenic quality” (Tcpt, 28 September 2023, p 345(25-26, 32-34)). Ultimately, however she agreed with Mr Wright that there is no reference in her landscape character assessment at Annexure C of her report to any engagement with the community at all. (Albeit, she said historically she had spoken with the community where it was available.) When it was put to her that she had heard evidence from the objectors onsite about the community sense of place and the impact of this proposal upon them, she said “I appreciate they have concerns, but I don't think it would alter the character assessment” (Tcpt, 28 September 2023, p 347(30-31)).

86. Based on Ms Rawlinson’s oral evidence, it is clear that she relied upon a generic assessment rather than direct engagement with those most affected by the development. Their sense of place has not been sufficiently factored into her assessment in my view.

87. The Council is correct in submitting that Ms Rawlinson’s assessment of landscape character essentially is a visual assessment of the project when she agreed with Mr Wright that “The low visibility of the project infrastructure [solar arrays] minimises the project's ability of indirect impact upon the character of the LCZ.” (Tcpt, 28 September 2023, p 348(50)-349(2)).

88. I do not accept as Ms Rawlinson states at par 45 of Ex 19 that the introduction of gently sloping mounds, scattered trees and areas of screening vegetation would enhance the scenic quality and landscape character of the site. Nor do I accept based on the evidence that the introduction of trees and increased variety of landform particularly in views from surrounding residents (adding landscape features typically associated with community perceptions of higher scenic quality landscapes) would provide an improvement. The landscaped mounds, which I accept occupy a small portion of one parcel of land within the land mapped as regional city, would appreciably change the visual quality of the area and of the regional city as a whole. Moreover, the views from the Castlereagh Highway will be foreshorten by the landscaped mounds. The existing landscape character in views from the Castlereagh Highway in the vicinity of the site would be significantly adversely impacted.

89. For all those reasons, I am not satisfied that the development is unlikely to have a significant impact on the regional city’s’ scenic quality and landscape character as required by the T&I SEPP. Therefore, I am precluded from granting consent to the DA.

90. For completeness, I make the following findings in respect the LEP.

Contention 1.1: Clause 6.10 Visually sensitive land near Mudgee

91. Clause 6.10 of the LEP provides:

6.10 Visually sensitive land near Mudgee

(1) The objective of this clause is to protect the visually and environmentally significant land on the urban fringe of the town of Mudgee.

(2) This clause applies to land shown as “Visually Sensitive Land” on the Visually Sensitive Land Map.

(3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development—

(a) will complement the visual setting forming the backdrop to Mudgee, and

(b) will be designed, set back and sited to respond sympathetically to the landform of the site on which the development is proposed to be carried out and will minimise visual intrusion.

92. Clause 6.10 applies to land identified as visually sensitive on the VSL Map under the LEP.

93. The objective of the clause is stated in cl 6.10(1) as being “to protect the visually and environmentally significant land on the urban fringe of the town of Mudgee”.

94. As the applicant identifies the objective of the clause is given operative effect by reason of two discrete provisions each of which have independent work to do – and, construed together, inform my state of satisfaction. That is, before the grant of development consent, I must form a positive state of satisfaction that the development “…will complement the visual setting forming the backdrop to Mudgee”, “…be designed, set back and sited to respond sympathetically to the landform of the site on which the development is proposed to be carried out and will minimise visual intrusion”.

The proper interpretation of cl 6.10 of the LEP

95. In the Planning JER (Ex C) the planners and Ms Rawlinson (a landscape architect experienced in assessing the visual impact of solar farms (Ex C Annexure A)), addressed Contention 1.1 which was directed to cl 6.10(3) and came to certain agreements (3.1.1) and disagreements (3.1.2). During cross-examination, these experts were asked several questions so that the Court could better understand their interpretation of the provision that underpinned their evidence.

96. In addressing cl 6.10(3)(a), the applicant’s experts’ Ms Rawlinson and Mr Chambers, expressed the view that the intent of the clause is to protect the backdrop to Mudgee being the “views to the hills” and ridgelines surrounding Mudgee (Planning JER at pars 26, 27(a) and (d) and 29). This understanding of the clause then informed their assessment that the development did “complement the visual setting forming the backdrop to Mudgee”. Mr Chambers added that in his assessment the development will not have an unreasonable impact on the visually sensitive land to which cl 6.10(3)(a) of the LEP relates (Planning JER at par 29).

97. However, Ms Rawlinson and Mr Chambers’ focus, in the Planning JER at pars 26 and 29, on the hills and ridgelines in the middle distance rather than the land on the floor of the Burrundulla Valley as one approaches Mudgee from the Castlereagh Highway is, as the Council submits, contrary to the inquiry mandated by cl 6.10(3)(a).

98. It must be accepted on the wording of the clause that cl 6.10 applies to that land identified as visually sensitive on the VSL Map. That land includes the site. The language of the provision is clear. The land on the VSL Map is sensitive due to its relationship to Mudgee because that landform is the visual setting forming the backdrop to Mudgee. It is clear that the clause seeks to protect that land – including agricultural flat land – comprising the approach into Mudgee from the southeast. However, given its proximity to the town centre, and its visually sensitive location on the main entrance corridor to town, the site must integrally form part of the visual setting forming the backdrop to Mudgee. To my thinking, there is no basis in the wording of the clause, or the VSL Map, for concluding that the views protected by the clause are only those to the hills and ridgelines in the middle distance. The intent of the clause is to protect the visually and environmentally significant land on the urban fringe of Mudgee. By way of background, this intent is also indicated in the Planning proposal which introduced the form of cl 6.10 to the LEP (Ex O).

99. Mr Barwick explained in Court that his agreements were prefaced on a joint position. However, he corrected that in his oral evidence when he agreed with the description of the setting referred to in cl 6.10(3)(a) as being “…all the identified land – the hills, ridgelines, and the valley floor with its agricultural flats – the whole view – as appreciated on the approach into Mudgee from the southeast via the Castlereagh Highway” (Tcpt, 23 September 2022, p 154(23-44)). This assessment of view includes the full site. Ms Rawlinson’s evidence, which excludes the site and the valley flat land, in my assessment, must be rejected as it is not addressing the question raised by cl 6.10(3)(a) (Planning JER at par 27; Tcpt, 23 September 2022, p 130(36)).

100. During oral evidence, there did seem to be a more general agreement between the planners when Mr Chambers gave additional evidence that the backdrop referred to in cl 6.10(3)(a) was “the experience that someone in the public domain heading toward Mudgee would experience, taking in the whole of the view” (Tcpt, 23 September 2022, p 156(30)). Noting that the joint report had restricted the visual setting to the view of the hills (Planning JER at par 29).

101. Relevantly, the clause does not separate out the elements of the visual setting for consideration under limbs (a) and (b) as the applicant suggests (AWS at pars 39-40). Instead, as the Council submits, cl 6.10(3)(a) requires a consideration of land identified on the VSL Map. By reference to the VSL Map extracted below (with the visually sensitive land shown in purple), cl 6.10 applies to:

1. the Burrundulla Valley to the south of Mudgee;

2. as far east of Mudgee as Mount Frome; and

3. to the north and west of Mudgee as far as Caerleon.

Figure 1 VSL Map from the LEP

102. Therefore, cl 6.10 applies to all the land on the approach to Mudgee when travelling along the Castlereagh Highway, from as far south as the locality of Queens Pinch. It is clear the clause seeks to protect the land including the agricultural flat land comprising the approach to Mudgee. That land is the land along the Castlereagh Highway. As the site has a significant frontage to the Highway, it must follow that the site is in fact more visually sensitive than other sites further removed from the Highway as it approached Mudgee.

The meaning of “complement” in the context of cl 6.10(3)(a)

103. Having determined the relevant visual setting forming the backdrop to Mudgee, I now need to understand the meaning of the word “complement” in the context of cl 6.10(3)(a) in order to determine whether I am satisfied on the evidence that the development “(a) will complement the visual setting forming the backdrop to Mudgee”.

104. The word “complement” is not defined in the LEP. However, the Council relying on the Macquarie Dictionary (CWS dated 21 October 2022 p 14) and case law sought to advance a meaning which suggests a “positive effect upon the original purpose” (Inkerman Station Pty Ltd as Trustee for the Inkerman Station Trust v Allan (No 2) [2017] QSC 243 at [34]), something “to “supplement appropriately or adequately” (Al Amanah College Incorporated v Minister for Education and Training [2011] NSWLEC 189). This is a meaning consistent with the evidence of its planner, Mr Barwick, who in the context of the clause described it as a development that will add something beneficial or advantageous to the setting in a beneficial way (Tcpt, 23 September 2022, p 150(50)); development that “has a positive connotation in terms of adding to” (Tcpt, 23 September 2022, p151(5-6)).

105. Whereas the applicant relying on the Cambridge Dictionary and the evidence of Mr Chambers and Ms Rawlinson submitted (in the AWS at par 101) that I should accept that the term “complementary” in the planning sense equates to “compatible” (Al Amanah College Incorporated v Minister for Education and Training [2011] NSWLEC 189, per Biscoe J) and that cl 6.10(3)(a) requires the consent authority to be satisfied that the proposed development fits into the visual setting (AWS at par 105). Or as Mr Chambers put it in the planning context of cl 6.10 that the word “complement” means “to fit in” (Tcpt, 23 September 2022, p 145(43-49)) or alternatively “not to detract from”. He rejected the suggestion that it meant “to add or improve” (Tcpt, 23 September 2022, p151(10-25)).

106. With his definition in mind, because the view of the hills which form the backdrop to Mudgee will be protected (Planning JER at par 29(b)), Mr Chambers maintained in the joint report that from the vantage point of the Castlereagh Highway the development did "complement" the backdrop to Mudgee. He repeated this evidence in Court when he described the relevant backdrop to Mudgee as a town set in the hills, as from the southern approach, unaffected by the amended development (Tcpt, 5 October 2022, p 108(34-39)). Ms Rawlinson gave similar evidence in the joint report and in concurrent evidence - that in her opinion the proposed undulating landform together with the vegetation complemented that visual backdrop (Tcpt, 23 September 2022, p 134(15-19)).

Finding - Meaning of “complement”

107. The expression “will complement” in cl 6.10(3)(a) is, in my assessment, something different to being “compatible” with something. The word “complement” connotes a more positive impact than being “in harmony” which is generally understood to be the meaning of “compatible” in planning law. Therefore, in the context of cl 6.10(3)(a), I think it requires something more than the development “not detracting” or just “fitting in” as Mr Chambers suggested. Yet, something less than an improvement as Ms Rawlinson told the Court (Tcpt, 23 September 2022, p131(12-19)). Rather, I think it means in the context of cl 6.10(3)(a) that the development will have a positive impact on the identified setting. A high level of integration with the existing visual setting - one which serves to benefit or enhance the existing setting thereby setting a higher bar than mere compatibility. This is a view consistent with Mr Barwick’s evidence to the Court (Tcpt, 23 September 2022, p 150(50)).

Will the development complement?

108. Ms Rawlinson gave evidence that she does not believe that the development will intrude into the visual setting forming the backdrop - as she defines it. She is of the opinion that the development is “complementary”. That is, the development will have a low level of adverse impact. She described it as “negligible” (Planning JER at par 72); not “unreasonable or unacceptable”; and “not excessive or incongruous” (Planning JER at par 24). Mr Chambers expressed concurrence although in cross-examination he accepted that the backdrop included the site.

109. Mr Barwick in addressing cl 6.10(3)(a) of the LEP gave evidence in the Planning JER at par 16 that the proposed development includes landscaping treatments which would complement the visual setting of the site if successfully established and maintained.

Finding – cl 6.10(3)(a)

110. As noted at the outset, the experts’ written evidence is difficult to reconcile with the inquiry mandated by this clause of the LEP because as Mr Barwick acknowledged in Court the experts had, for the purposes of cl 6.10(3)(a), focussed their assessment on the views on the approach to Mudgee being primarily to the ridgelines surrounding Mudgee (Planning JER at par 12, and Visual impact report dated September 2022). A limited view of the relevant visual setting forming the backdrop to Mudgee.

111. Nonetheless, for the reasons submitted by the Council and based on my observations and the expert’s oral evidence, I am not satisfied as required by cl 6.10(3)(a) that the development will complement (“add to”) the visual setting forming the backdrop to Mudgee.

112. The relevant view as Mr Chambers stated and I observed is “…magnificent, …a beautiful view on the approach to Mudgee” across the flat to the ridgelines and hills. In that context, the development of 25,000 solar PV panels, arrayed on steel driven piles covering an area of 26 ha behind lineal mounds (which will run for a length of 250 m and 100 m along the frontage with the Highway - albeit in time sown with pasture grass) and constructed solely to shield the arrays will not add to or complement the visual setting referred to in cl 6.10(3)(a).

113. I accept the fact that the development will be hidden from view behind the landscaped mounds when viewed from the frontage of the site on the Highway. However, invisibility is not the test required by cl 6.10(3)(a) of the LEP – the development must complement the visual setting forming the backdrop to Mudgee. I have no satisfactory evidence from any expert that the development achieves such an outcome. Their oral evidence at times was even more confusing; but they did agree that the development will be visible from the dip in the Azar’s driveway and from higher up on Rocky Point Road. And based on my inspection from those locations, it cannot be said that the development on the valley floor will complement the visual setting forming the backdrop to Mudgee.

114. The Council submits that the development of this solar farm will be an alien feature in the relevant setting, and based on my observation at the site view, I agree. The development, whilst permissible, is uncharacteristic and will intrude into the landscape forming the visually sensitive lands sought to be protected under the clause. It will adversely affect an appreciation of the “backdrop to Mudgee” even as understood by Mr Rawlinson – focussing on the hills and ridges in the middle distance because the current open visual setting forming the backdrop to Mudgee, based on my observations, would be constrained by uncharacteristic mounds.

115. Even accepting that “complement” means “not detract from” as the applicant suggests, I do not accept that the proposal will “not detract from” the visual setting when one considers the existing visual setting forming the backdrop to Mudgee. As Ms Rawlinson observed, there are no similar earthwork mounds anywhere on the Burrundulla Valley (Tcpt, 22 September 2022, pp 132-133). They have been introduced into this development solely to shield the 26 ha of solar arrays. Both Ms Rawlinson and Mr Chambers specifically cited the introduction of the mounds as justifying their conclusion that the development will be complementary to the visual setting (Planning JER at pars 29 and 27(d)). The openness of the entry view valley floor as part of the relevant setting will not be complemented by the proposed mounds. While I accept as the experts agreed (Planning JER) that they will not be a dominant feature (at 3 m with a vegetated gentle batter slope of 1:5), I agree with Mr Barwick that their introduction to the site will permanently foreshorten the existing view across the valley floor which is part of the visual setting forming the backdrop to Mudgee sought to be protected by cl 6.10(3)(a).

Finding – cl 6.10(3)(b)

116. Similarly, I not satisfied, as required by cl 6.10(3)(b) that the development will be designed, set back and sited to respond sympathetically to the landform of the site on which the development is proposed to be carried out and will minimise visual intrusion.

117. As the Council submits the development includes the construction of five earthwork mounds on the site. The sole purpose of the mounds is to screen the development visually and to mitigate visual intrusion into the visually sensitive land (Planning JER at par 151(b) per Ms Rawlinson).

118. The combined length of the mound is 1,000 m and involves a combined volume of 43,000m³ (Ex E).

119. The development involves cut and fill works to win material from the site to create the mounds. This will involve a disturbance area of 12.6 ha - 4.2 ha from within System A and 8.4 ha from within System B. The mounds are 3 m in height – and mounds 3 and 4 will be a significant length namely 261 m and a return arm of 94 m and bund 4 is 293 m and return arm of 76 m.

120. The landform is presently flat agricultural land. The need to engineer substantial mounds in order to mitigate the otherwise unacceptable visual impacts of the development does not respond sympathetically to the landform. It is disruptive of the landform on the site on which the development is to be conducted. The sole purpose of the mounds is to screen the development from view according to Ms Rawlinson (Tcpt, 22 September 2022, p 138(19-25)). While not a dominate feature, the mounds are, in my assessment, unsympathetic to the existing landscape of the site on which the development is proposed.

121. I am also not satisfied that the development will minimise visual intrusion as required by cl 6.10(3)(b). True the development will be shielded by the mounds from the Highway frontage. However, the development will be visibly intrusive from 241 Rocky Waterhole Road (OP70 in the VIA) and from the driveway and short-term stay accommodation at 344 Castlereagh Highway (OP40 and OP67 in the VIA) according to Mr Barwick. The view will be to an alien element within the existing rural landscape and, as the objectors stated in their evidence to the Court, will impact their present rural visual outlook. In respect to the residents at 344 Castlereagh Highway, this visual intrusion will adversely impact the farm-stay accommodation experience their guests presently enjoy and seek - in addition to adversely impacting the visual amenity they enjoy from their primary residential use of their property. I do not accept, as the applicant submits, that the visual intrusion into the view from the neighbour’s driveway – being a side boundary view is of any less relevance than any other view for the purpose of cl 6.10(3)(b) of the LEP. There is nothing in the Tenacity planning principle that requires assessment of this development in circumstances where there are specific provisions of the LEP which mandate the terms of visual assessment (Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140). A planning principle is a guide in the absence of a statutory framework and other specific policies. In this case, the 2022 Solar Guide offers specific guidance for solar developments and has been used to assist in assessment visual impacts in this case.

122. Mr Barwick’s evidence is that development will have adverse impacts on (adopting the references in the VIA) Viewpoints 6, OP70, and OPS 40/67. Apart from Viewpoint 6, these viewpoints are on the main entrance corridor to Mudgee and in my assessment are of particular sensitivity and significance (Planning JER at par 51); and given these remaining adverse view impacts, I am not satisfied that the development would minimise visual intrusion.

123. For those reasons, I am not satisfied that that the development will be designed, set back and sited to respond sympathetically to the landform of the site on which the development is proposed to be carried out and will minimise visual intrusion.

Site suitability – EPA Act s 4.15(1)(c)

124. Section 4.15(1)(c) of the EPA Act requires a consideration of the suitability of the site for the development.

125. The question of site suitability is inextricably tied up to questions of visual impact and landscape character as addressed above. Had a proper site suitability analysis been conducted by the applicant then, as the Council submits, the site would not have been selected for the DA for the reason given by Mr Barwick in his report dealing with the T&I SEPP.

126. As the Council submits, the development will present as a large contiguous mass. The development footprint occupies a significant proportion of the site (26 ha or 40.75%). The overall scale is, therefore, excessive and incongruous with the surrounding landscape, which comprises low scale individual buildings, disconnected built form, separated by expanses of rural, open land.

127. The development does not provide adequate separation and visual relief to residential dwellings on adjoining lots from adjoining driveways and dwellings and to the main entrance corridor to Mudgee. The design, setbacks and siting of the development does not sympathetically respond to the landform of the site and surrounding rural and landscape character. The mitigation measures proposed in the DA being large, grassed earthwork mounds of uniform height and alignment, as well as significant bulk and scale will themselves have a significant adverse impact on the scenic quality and landscape character of the regional city.

128. Due to the flat topography of the land within a low-lying valley, and its location adjacent to the main entrance corridor to Mudgee, the site and the scenic qualities of the surrounding rural landscape are highly visible to visitors and residences within the southeast urban fringe area of the town.

129. The evidence is that the site is located within the vicinity of two urban release areas situated to the southeast of Mudgee identified within the Mudgee and Gulgong Urban Release Strategy 2014, including land that has been rezoned to R5 Large Lot Residential.

130. As I understand the evidence, the revised study corridor considered for potential future renewable energy developments as part of the REZ, as identified within the NSW Government Central-West Orana REZ ‘Project Overview’ 2022, does not include this land and is further removed from Mudgee and the surrounding visually sensitive urban fringe area.

131. The development is inconsistent with the directions and priorities of the following strategic documents:

1. the Comprehensive Land Use Strategy 2017, as a guiding principle of the strategy is to protect areas of high scenic and/or conservation value and is located in proximity to potential urban release areas,

2. the Mid-Western Regional Local Strategic Planning Statement 2040, as the proposal will not maintain and promote the aesthetic appeal of the towns and villages within the Region, (Priority 3). Renewable energy projects are to avoid impacts on scenic and rural landscape and preserve valuable agricultural land (Priority 7 Land Use Action (e)),

3. the Central West and Orana Regional Plan 2036 – Direction 1 requires the protection of the Regions diversity and productive agricultural land. New renewable developments require a strategic approach – the site is not a suitable location (Direction 9), and

4. Mudgee and Gulgong Urban Release Strategy, in that it undermines an orderly and coordinated approach to residential growth and does not protect high value agricultural land.

132. The excessive scale of the proposed solar arrays, located on a site that is within a low-lying, visually sensitive rural landscape setting adjoining the main entrance corridor to Mudgee, and inconsistencies with the relevant strategic documents, demonstrates that the development as proposed is not suitable for the site after a merit assessment under s 4.15 of the EPA Act.

Conclusion

133. Accordingly, the Court orders:

1. The appeal is dismissed.

2. Development application no. DA0288/2019 for a 10MW solar farm and associated infrastructure at Lot 6 in Deposited Plan 1069441, also known as 3B Sydney Road, Burrundulla is determined by refusal of consent.

3. The exhibits are returned except for A, B, G and H.

…………………

S Dixon

Senior Commissioner of the Court

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Amendments

02 February 2024 - Correction to typographical errors at [20], [83], [106] and [108].

Decision last updated: 02 February 2024