Renwood v Independent Planning Commission

[2018] NSWLEC 1632

Land and Environment Court

New South Wales

Medium Neutral Citation:	Renwood v Independent Planning Commission [2018] NSWLEC 1632
Hearing dates:	Conciliation conference on 4 December 2018
Date of orders:	06 December 2018
Decision date:	06 December 2018
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	See orders at [9] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Boorowa Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy (State and Regional Development) 2011 Threatened Species Conservation Act 1995 Yass Valley Local Environmental Plan 2013
Category:	Principal judgment
Parties:	Ian James George Renwood (First Applicant) Don Andrew Aroney (Second Applicant) Maj Ulrika Aroney (Third Applicant) Andrew William Winterflood (Fourth Applicant) Robing Anne Winterflood (Fifth Applicant) Independent Planning Commission (First Respondent) Bango Wind Farm Pty Ltd (Second Respondent)
Representation:	Counsel: M Wright SC (Applicants) Z Heger (First Respondent) A Hemmings (Second Respondent) Solicitors: James R G Bell (Applicants) Department of Planning and Environment (First Respondent) Norton Rose Fulbright (Second Respondent)
File Number(s):	2018/164466
Publication restriction:	No

Judgment

COMMISSIONER:

1. These proceedings are an appeal against the grant of development consent subject to conditions, by the Independent Planning Commission of NSW (“IPC”), for the Bango Wind Farm, located between Yass and Boorowa in the Southern Tablelands region of New South Wales (the proposal).

2. The appeal is made by objectors to the development application (DA SSD 6686) pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act).

3. As originally approved, the consent authorised the construction, operation and replacement or upgrading as necessary and decommissioning of up to 71 wind turbines from layout Option 1 together with associated infrastructure.

4. On 4 December 2018, the Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties and I was the presiding Commissioner.

5. At that conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved a substantial reduction in the number of wind turbines from 71 to 46 and a consequent reduction in the environmental impacts of the proposal. The terms of the decision are:

1. The appeal is upheld.

2. Development consent for the Bango Wind Farm, development application number SSD 6686, is granted subject to the modified conditions in Annexure “A” and the documents comprising the “EIS” as set out in the Index in Annexure “B”.

6. The parties agree that the Court can be satisfied that the above decision is one that the Court could have made in the proper exercise of its functions, being the test applied in s 34(3) of the LEC Act, for the following reasons:

1. the parties’ decision involves the Court exercising the functions of the First Respondent under s 4.16 of the EPA Act as the consent authority for the project, and the Court’s powers on appeal under s 8.14 of the EPA Act;

2. the State Environmental Planning Policy (Infrastructure) 2007 (NSW) declares that development for the purposes of electricity generating works may be carried out by any person with consent on any land in a prescribed rural zone, including the RU1 Primary Production Zone under the Boorowa Local Environmental Plan 2012 and the Yass Valley Local Environmental Plan 2013;

3. owners’ consent for the development application has been obtained from all landowners of the land in Appendix 1 to the modified conditions in Annexure “A”;

4. the NSW Department of Planning and Environment has advised that no public exhibition of the project as modified is required under the EPA Act as it would result in reduced environmental impacts;

5. the 7-part test carried out for the project confirmed that it is not likely to significantly affect threatened species, populations or ecological communities, or their habitats and accordingly, no species impact statement was required.

7. Having considered the matters outlined above and the additional written submissions received from the objectors provided to me at the conference, I am satisfied that there are no other jurisdictional prerequisites raised of which the Court must be satisfied under the following legislation prior to granting consent:

1. LEC Act;

2. EPA Act;

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

4. State Environmental Planning Policy (Infrastructure) 2007 (NSW);

5. Threatened Species Conservation Act 1995 (NSW);

6. Yass Valley Local Environmental Plan 2013; and

7. Boorowa Local Environmental Plan 2012.

8. The parties have requested that I dispose of the proceedings in accordance with the terms of the decision set out in paragraph 2 of their agreement dated 4 December 2018. As the 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.

9. Accordingly, the orders of the Court are:

1. The appeal is upheld;

2. Development consent for the Bango Wind Farm, development application number SSD 6686, is granted subject to the modified conditions in Annexure “A” and the documents comprising the “EIS” as set out in the Index in Annexure “B”.

10. The Court notes that:

1. the documents comprising the “EIS” as set out in the Index in Annexure “B” are located on the USB provided by the parties attached to the Court’s file;

2. the documents on the USB have been downloaded and saved on the Court’s file management system, under the folder heading “Judgment & Orders”.

……………………….

S Dixon

Senior Commissioner of the Court

Annexure A (reduced) (903 KB, pdf)

Annexure B (33.4 KB, pdf)