Strzelecki Community Alliance Inc v Minister for Planning

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION AND PLANNING LIST

S ECI 2022 01935

STRZELECKI COMMUNITY ALLIANCE INCORPORATED	Plaintiff
v
MINISTER FOR PLANNING	First Defendant
and
DELBURN WIND FARM PTY LTD	Second Defendant

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	23-24 February 2023 Joint memorandum filed 9 March 2023
DATE OF JUDGMENT:	27 March 2023
CASE MAY BE CITED AS:	Strzelecki Community Alliance Inc v Minister for Planning
MEDIUM NEUTRAL CITATION:	[2023] VSC 132

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ADMINISTRATIVE LAW – Judicial review – Planning permit for development and use of land as wind farm – Whether permit contravenes prohibition in cl 52.32 of the Latrobe Planning Scheme on use and development of land for a wind farm at a location within five kilometres of ‘the urban areas of Moe, Morwell and Traralgon’ – Proper interpretation of cl 52.32 of the Latrobe Planning Scheme – Whether relevant land for the purpose of the prohibition is land on which wind farm infrastructure is permitted or the whole of the land to which the permit relates – What is meant by ‘the urban areas of Moe, Morwell and Traralgon’ – Whether any land on which a wind farm is permitted is within five kilometres of the urban area of Moe – No land on which the wind farm is permitted is within five kilometres of the urban area of Moe – Permit not contrary to prohibition in cl 52.32 of the Latrobe Planning Scheme – Proceeding dismissed – Latrobe Planning Scheme, cl 52.32.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr PX Connor KC with Mr R Chaile	DST Legal
For the First Defendant	Ms JE Forsyth SC with Ms E Smith	Victorian Government Solicitor
For the Second Defendant	Ms SM Brennan SC with Dr N Petrie	White & Case

TABLE OF CONTENTS

Proposed Delburn Wind Farm.................................................................. 4
Latrobe Planning Scheme......................................................................... 12
What is the relevant ‘land’ for the purposes of cl 52.32?..................... 21
SCA’s submissions........................................................................... 21
Minister’s submissions.................................................................... 23
Delburn’s submissions.................................................................... 25
Consideration................................................................................... 27

What are the urban areas of Moe, Morwell, and Traralgon?.............. 32
SCA’s submissions........................................................................... 32
Minister’s submissions.................................................................... 34
Delburn’s submissions.................................................................... 36
Joint memorandum.......................................................................... 37
Consideration................................................................................... 38

Is any of the ‘land’ less than five kilometres from the urban area of Moe?................................................................................................... 44
Disposition.................................................................................................. 46

HER HONOUR:

In December 2020, Delburn Wind Farm Pty Ltd applied to the Minister for Planning for planning permission to use and develop land for a wind energy facility in the Strzelecki Ranges, to the south of the Latrobe Valley in south-east Victoria. The site of the proposed Delburn Wind Farm comprises 4,778 hectares of land owned by Hancock Victorian Plantations Pty Ltd that is primarily used for plantation timber production. It spans the municipalities of South Gippsland, Baw Baw, and Latrobe, and is subject to the South Gippsland, Baw Baw, and Latrobe Planning Schemes.

Delburn applied under s 47 of the Planning and Environment Act 1987 (Vic) (Planning Act), for permits to construct 33 wind energy turbines and associated infrastructure and to undertake other works. The Minister called in the applications under s 97B of the Planning Act, and referred the numerous objections and submissions received to a Panel appointed under s 97E of the Planning Act. The Panel held hearings in October and November 2021.

One of the parties to the Panel hearing was the Strzelecki Community Alliance Incorporated (SCA), an association of about 1,000 people who live in various townships near the site of the proposed Delburn Wind Farm. SCA’s objections to the proposal included that it did not comply with the schedule to cl 52.32 of the Latrobe Planning Scheme, which prohibits the use and development of land for a wind energy facility on ‘all land within five kilometres of a residential zone, an industrial zone, a business zone or a special purpose zone in the urban areas of Moe, Morwell and Traralgon’.

The Panel reported to the Minister on 7 February 2022, recommending that the permits be issued, with conditions, and without the battery facility that had been proposed at the north-eastern end of the site. In relation to the five kilometre prohibition, the Panel concluded that the wind energy facility would be more than five kilometres from the urban area of Moe, and was not prohibited under the schedule to cl 52.32 of the Latrobe Planning Scheme.

On 27 March 2022, after considering the Panel’s report, the Minister granted the permits in substantially the form recommended by the Panel. On that day, he issued permit PA2001066 under the South Gippsland Planning Scheme, permit PA2001064 under the Baw Baw Planning Scheme, and permit PA2001063 under the Latrobe Planning Scheme (Latrobe permit). All three permits allow the use and development of land for a wind energy facility, and require the submission of amended development plans ‘generally in accordance with the application plans’, to be approved and endorsed by the Minister.

In this proceeding, SCA seeks judicial review remedies in relation to the Minister’s decision to grant the permits. It contends that the permits are invalid and of no effect because the use and development they allow is expressly prohibited by cl 52.32 of the Latrobe Planning Scheme. In particular, SCA claims that the proposed site is located within five kilometres of residentially zoned land in the urban areas referred to in cl 52.32. It seeks an order in the nature of certiorari quashing the Minister’s decision to grant the permits, and a declaration that they are invalid and of no legal effect. Alternatively, it seeks those remedies in relation to the Latrobe permit only.

The proceeding was defended by the Minister and by Delburn, on the basis that the wind energy facility authorised by the permits is more than five kilometres from the urban area of Moe. In the alternative, both the Minister and Delburn submitted that any part of the land authorised for use as a wind energy facility that infringes the five kilometre prohibition should be severed from the Latrobe permit.

The Minister did not provide a statement of reasons for granting the permits. Initially, there was a question in this proceeding as to whether the Minister had adopted the Panel’s reasoning in relation to the five kilometre prohibition, and whether that reasoning was in error. However, shortly before the trial, the Minister disclosed the brief that informed the decision to grant the permits, and admitted that it could be inferred from the brief that the Minister had:

(a) adopted the Panel’s conclusion that the proposal is not prohibited by the schedule to cl 52.32 of the Latrobe Planning Scheme; and

(b) accepted the Panel’s finding that the structure plan map from cl 11.01-1L of the Latrobe Planning Scheme (in so far as it relates to the Moe part of the Moe-Newborough structure plan area) is the most relevant tool to specify the boundary of Moe.

Those admissions enabled the parties to focus their arguments at trial on whether those conclusions were correct, which turned on the proper interpretation of cl 52.32 of the Latrobe Planning Scheme. Both the Minister and Delburn accepted that the Minister did not have power to grant a permit that purports to authorise the use and development of land for a wind energy facility within five kilometres of the relevant urban land.

There were therefore three questions to be determined:

(a) First, what is the relevant ‘land’ for the purposes of cl 52.32? Is it the land on which the turbines and other infrastructure associated with the wind energy facility may be constructed under the permits, or is it the whole of the land to which the permits relate?

(b) Second, what is meant by the ‘urban areas of Moe, Morwell and Traralgon’?

(c) Third, is any of the land on which the wind energy facility is permitted less than five kilometres from the urban area of Moe?

For the reasons that follow, I have concluded that:

(a) Only one part of the project area for the proposed Delburn Wind Farm is arguably within five kilometres of the urban areas of Moe, Morwell and Traralgon – a parcel of land at the north-eastern end of the project area, which I refer to as Lot 77.[1] In this case, the relevant ‘land’ for the purposes of cl 52.32 is the land on Lot 77 where installation of electrical reticulation is authorised by the permit. The permit does not authorise the use and development of any other part of Lot 77 as a wind energy facility.

(b) Moe, Morwell, and Traralgon are three separate towns in the Latrobe municipality, each of which is registered with its own boundaries on the Register of Geographic Place Names. The three towns are treated by the Latrobe Planning Scheme as distinct centres, each with its own urban area, and not as a composite ‘Latrobe City’. While the Planning Scheme recognises that the two distinct urban areas of Moe and Newborough have joined to create a single urban settlement, the reference to Moe in the schedule to cl 52.32 does not mean Moe-Newborough. The urban area of each town is delineated by the township boundary shown on the structure plan adopted for the town in cl 11.01-1L of the Latrobe Planning Scheme.

(c) None of the land on which the wind energy facility is permitted is less than five kilometres from the urban area of Moe.

[1]Defined in [16] below.

The permits granted by the Minister on 27 March 2022 are not contrary to the five kilometre prohibition in cl 52.32 of the Latrobe Planning Scheme. Specifically, the Latrobe permit does not authorise the use and development of land as a wind energy facility within five kilometres of the urban areas of Moe, Morwell, and Traralgon. The proceeding must therefore be dismissed.

Proposed Delburn Wind Farm

The Panel’s report described the project area for the Delburn Wind Farm and its surrounds, as follows:

Nearby towns and rural communities include Trafalgar, Narracan, and Coalville to the northwest, Thorpdale to the west, Hazelwood to the northeast, Yinnar and Churchill to the east, and Boolarra and Mirboo North to the south. Moe and Morwell are situated to the northwest and northeast.
The Project area is irregular in shape and spans across a total area of 4,778 hectares with 4,183 hectares in Latrobe City. Figure 3 provides a Project area overview within the wider regional context. The plantation in which the site is located has been established since the 1960s and comprises a mixture of pine and blue gum plantations and remnant native vegetation.
At its highest point, the Project Site is approximately 350 metres Australian Height Datum (AHD).
There are no dwellings located within one kilometre of a proposed turbine. There are 104 dwellings within two kilometres of a turbine and 1,267 dwellings within five kilometres of a turbine.
The surrounding context comprises largely cleared land used for agricultural and grazing purposes and rural living and lifestyle properties. Outside the Project area there is remnant vegetation to the southeast within the Darlimurla Forest, to the north within the Sayers Trig Bushland Reserve and to the south within the Mirboo North Regional Park.
Two coal fired power stations and associated coal mines are located to the east and northeast of the Project area. The Hazelwood mine is located two kilometres to the east and was closed in March 2017. The mine is in the process of decommissioning. Yallourn is located three kilometres to the northeast and is currently operational.

Figure 1 below is the plan that was reproduced in Figure 3 of the Panel’s report, showing the regional context of the proposed wind farm.

Figure 1: Delburn Wind Farm Regional Context Plan, annexed to the Expert Witness Report of Peter Toole dated 15 August 2022

The project area comprises a number of separate parcels of land, each with its own street address and particulars of title. Figure 2 below shows the cadastral boundaries of the various titles.

Figure 2: Land Title Information, annexed to the Expert Witness Report of Peter Toole dated 15 August 2022

The parcel of land at the north-eastern tip of the project area is described in the permit as ‘Crown Allotment 77 Parish of Narracan’, Volume 7720 Folio 94, Strzelecki Highway Delburn. I will refer to it in this judgment as ‘Lot 77’.

The plans submitted with the permit application included a site layout plan, which is reproduced at Figure 3 below.

Figure 3: Delburn Wind Farm Site Layout plans, annexed to the Expert Witness Report of Peter Toole dated 15 August 2022

The northernmost wind turbine shown on the site plan is T03, which is to the south-west of Lot 77. The only infrastructure shown on Lot 77 on the site plan is electrical reticulation and a proposed battery facility. The Panel recommended against approving the battery facility, and the Minister accepted that recommendation.

The Latrobe permit commences with a list of the land and roads to which the permit relates. Each parcel of land is identified by lot, volume and folio, and where available, the road and locality of the land. Lot 77 is included in this list.

The permit allows:

The use and development of land for a wind energy facility including the construction of buildings and the carrying out of works, the removal, destruction or lopping of native vegetation, the alteration of access to a road in a Transport Zone 2 and the construction or putting up for display of business identification signs.

The conditions that apply to the permit are then set out. Condition 1 relates to development plans, and relevantly states:

Before development starts, amended development plans must be submitted to, approved and endorsed by the responsible authority. When endorsed the plans will form part of this permit. The plans must be fully dimensioned, drawn to a scale. They must be generally in accordance with the application plans [specified by number, including the site plan at Figure 3 above] but modified to show:
a.the removal of reference to the Battery Energy Storage System (BESS) from all plans
b.the materials and finishes of the wind energy facility;

…
e.apart from the connection between the Terminal Station and the existing 220kV transmission line and the cable connection points within junction boxes, all power lines are to be underground;

…
g.Micro-Siting Plan identifying a footprint at ground level within which each turbine may be located.

Condition 3 requires that the use and development must be generally in accordance with the endorsed plans, which must not be altered or modified without the written consent of the responsible authority. No development plans have yet been endorsed.

Various specifications for the wind energy facility are set out in Condition 2. The part of the Delburn Wind Farm that is within the municipality of Latrobe is to comprise no more than 28 turbines,[2] with the following specifications:[3]

i. the overall maximum height of the wind turbines (to the tip of the rotor blade when vertical) must not exceed 250 metres above foundation level;
ii. wind turbines must be mounted on a tubular tower with a hub-height of no greater than 168 metres above foundation level;
iii. each wind turbine is to have not more than three rotor blades, with a rotor diameter of no greater than 180 metres;
iv. the ground clearance from the bottom of the blades to the ground level is not less than 40.5 metres.

[2]Of the remaining five turbines, four were approved in South Gippsland, and one in Baw Baw.

[3]Permit PA2001063 under the Latrobe Planning Scheme (Latrobe permit), Condition 2.a.

There are also specifications in Condition 2 about the siting of access tracks and wind turbines:

e. access tracks within the site are to be sited and designed to minimise impacts on overland flows, soil erosion, the landscape value of the site, environmentally sensitive areas and, where appropriate, the land use activities on the land to the satisfaction of the Minister for Planning;
f. all wind turbines must be set back at least 100 metres from boundaries to non-participating neighbouring properties and roads which are formed roads at the date of this permit;
g. within the micro-siting footprint, wind turbines should be set back from the Strzelecki Highway to the maximum extent possible;
h. Wind turbines must be located no less than 300 metres apart.

Conditions 4 and 5 provide for the micro-siting of turbines, including a requirement for the submission of micro-siting plans, identifying the footprint at ground level within which each turbine may be located. The footprint for each turbine identified on the micro-siting plan must not extend more than 100 metres in any direction from the centre of the turbine at ground level as shown on the development plans endorsed under Condition 1. Once endorsed, a micro-siting plan forms part of the permit, and may not be altered or modified without the approval of the responsible authority — that is, the Minister.

Latrobe Planning Scheme

Clause 52.32 of the Latrobe Planning Scheme makes particular provision for wind energy facilities. Its purpose is to ‘facilitate the establishment and expansion of wind energy facilities, in appropriate locations, with minimal impact on the amenity of the area’. It applies to land used and developed or proposed to be used and developed for a wind energy facility.[4]
[4]Latrobe Planning Scheme, cl 52.32-1.

Clause 52.32-2 provides:

A permit is required to use and develop land for a wind energy facility.
The use and development of land for a wind energy facility is prohibited at a location listed in the table to this clause unless the condition opposite the location specified in the table is met.

The table to cl 52.32-2 specifies various locations, including land listed in a schedule to the clause. A condition is also specified, which is not relevant in this case.

The schedule to cl 52.32-2 in the Planning Scheme provides:

Wind energy facility prohibition

Land where a Wind energy facility is prohibited

All land within five kilometres of a residential zone, an industrial zone, a business zone or a special purpose zone in the urban areas of Moe, Morwell and Traralgon.

The land use term ‘wind energy facility’ is defined in cl 73.03 of the Planning Scheme to mean:

Land used to generate electricity by wind force. It includes land used for:
a)any turbine, building or other structure or thing used in or in connection with the generation of electricity by wind force
b)an anemometer.[5]

It does not include turbines principally used to supply electricity for domestic or rural use of the land.

[5]‘Anemometer’ is defined in cl 73.01 to mean a wind measuring device.

The Planning Scheme contains no definition of ‘urban area’, or of the phrase ‘urban areas of Moe, Morwell and Traralgon’. The parties agreed that the meaning of those words is informed by the context in which they are used, commencing with the broader context of the Planning Scheme.

When the Minister granted the permits on 27 March 2022, the Municipal Planning Strategy in the Latrobe Planning Scheme set out strategic directions for Latrobe City, commencing with cl 2.03-1 – Settlement:

Settlement
A networked city
Churchill, Moe-Newborough, Morwell and Traralgon together form a ‘networked city’ where each town provides services and facilities to meet the needs of the community.
Traralgon and Morwell form the primary population centre in Latrobe, supported by Churchill and Moe-Newborough. Transport corridors form key elements of the networked city. The Morwell to Traralgon Employment Corridor’s gradual development over the next 20 years will link Morwell and Traralgon together to form a continuous urban area.
Each town has developed its own function, with Traralgon as a regional retail centre; Morwell as a centre for government offices and industry; Moe-Newborough as a service centre and Churchill as a university town.
Churchill has several significant education providers including the Federation University. It operates as a local service centre, though its industry and commercial activity is smaller in comparison to the other major towns (Churchill is identified as a Large Town Centre within the Latrobe City Retail Centre Hierarchy). It has a sufficient long term supply of residential land that contributes to the diversity of residential land and housing in Latrobe.
The Moe and Newborough urban areas are joined, creating a single urban settlement (Moe-Newborough) that is serviced by the Moe Primary Activity Centre (Sub-Regional Retail Centre within the Latrobe City Retail Centre Hierarchy). Moe-Newborough has the potential to be a peri-urban settlement. It is the first of the four major towns within the Latrobe Valley from Melbourne and consequently is identified as the ‘Gateway to Latrobe’.
Morwell accommodates transport and government services, as well as manufacturing, power and other industrial activities. Morwell has two Sub Regional Retail Centres, the traditional Primary Activity Centre and Mid Valley shopping centre to the east. Major industry is located and established in and around Morwell, with significant opportunity to locate large format heavy industries to the south of the Princess Highway. Industrial zoned land to the east of the township has access to infrastructure that supports high level research, manufacturing, food processing, service industry and transport/distribution capabilities.
Traralgon is the largest of the four main towns in Latrobe. It is the key Regional Retail Centre for Gippsland. Compared to other towns in Latrobe, due to its role as a commercial centre, Traralgon is experiencing higher population and urban growth. This trend is expected to continue.

Clause 2.03-1 also set strategic directions for Latrobe’s district towns (including Yinnar), small towns (including Boolarra), and rural living precincts (including Moe South):

Rural living precincts, including Flynn, Jeeralang, Yinnar South, Hazelwood North, Hazelwood South, Callignee and Moe South, comprise clusters of housing on small rural lots and have limited services. These areas support farming and rural living communities, providing an attractive lifestyle choice in a rural setting.

Clause 2.04 contained various strategic framework plans, including the Settlement Plan reproduced in Figure 4 below:

Figure 4: Settlement Plan, Municipal Planning Strategy, contained in cl 2.04 of the Latrobe Planning Scheme as at 27 March 2022

Clause 2.03-1 provided that the Settlement Plan ‘establishes the settlement growth patterns Council wants to achieve across Latrobe’. Among other things, Latrobe City Council’s settlement planning seeks to:

· Integrate the four centres of Churchill, Moe-Newborough, Morwell and Traralgon to support them functioning as a single urban system by:
·Promoting growth in Traralgon-Morwell as the primary population centre, serving as the dominant residential, commercial and retail node.
·Promoting growth in the Morwell to Traralgon Employment Corridor to provide a range of development opportunities for health, aviation, industrial, commercial and residential uses.
·Promoting growth in Moe-Newborough and Churchill as supporting network towns, serving as secondary urban centres.

…
· Support Moe-Newborough’s role as a key service centre and a peri-urban lifestyle option near Melbourne.

Settlement was also dealt with in the State Planning Policy Framework at cl 11.01-1S, relevantly:

Objective
To promote the sustainable growth and development of Victoria and deliver choice and opportunity for all Victorians through a network of settlements.
Strategies
Develop sustainable communities through a settlement framework offering convenient access to jobs, services, infrastructure and community facilities.
Focus investment and growth in places of state significance in Metropolitan Melbourne and the major regional cities of Ballarat, Bendigo, Geelong, Horsham, Latrobe City, Mildura, Shepparton, Wangaratta, Warrnambool and Wodonga.
…
Ensure regions and their settlements are planned in accordance with their relevant regional growth plan.
Guide the structure, functioning and character of each settlement taking into account municipal and regional contexts and frameworks.
Create and reinforce settlement boundaries.
…
Ensure land that may be required for future urban expansion is not compromised.

Policy documents for consideration included, relevantly, the Gippsland Regional Growth Plan.

The Victorian Settlement Framework was represented in the map of Victoria that appears at Figure 5 below. Of significance is that Moe, Morwell, Traralgon and Churchill are grouped together as ‘Latrobe City’.

Figure 5: Victoria Settlement Framework map, contained in cl 11.01-1S of the Latrobe Planning Scheme as at 27 March 2022

In relation to the Gippsland region, cl 11.01-1R provided:

Settlement - Gippsland
Strategies
Support urban growth in Latrobe City as Gippsland’s regional city, at Bairnsdale, Leongatha, Sale, Warragul/Drouin and Wonthaggi as regional centres, and in sub-regional networks of towns.
Support new urban growth fronts in regional centres where natural hazards and environmental risks can be avoided or managed.
Support the continuing role of towns and small settlements in providing services to their districts, recognising their relationships and dependencies with larger towns.
Create vibrant and prosperous town centres that are clearly defined and provide commercial and service activities that respond to changing population and market conditions.
Provide regional social infrastructure in the regional city and regional centres.
Plan for increased seasonal demand on services and infrastructure in towns with high holiday home ownership.

These strategies were represented in the Gippsland Regional Growth Plan map that is at Figure 6 below. Again, Moe, Morwell, Traralgon, and Churchill are grouped together as ‘Latrobe City’.

Figure 6: Gippsland Regional Growth Plan map, contained in cl 11 of the Latrobe Planning Scheme as at 27 March 2022

Clause 11.01L provided for Latrobe settlement patterns, commencing with a strategy to maintain ‘a clear separation between urban settlements, other than the Morwell to Traralgon Employment Corridor linking the urban areas of Morwell and Traralgon’. Separate structure plans followed for the urban settlements of Latrobe, including Moe-Newborough, Morwell, Traralgon, and Churchill. The map of the Moe-Newborough structure plan is at Figure 7 below.

Figure 7: Moe-Newborough structure plan, contained in cl 11.01-1L of the Latrobe Planning Scheme as at 27 March 2022

On 10 June 2022, Amendment VC216 made some amendments to the settlement policies in cl 11 of the Latrobe Planning Scheme, as part of a suite of amendments to the planning policy framework to support environmentally sustainable development. These amendments did not change the substance of the provisions set out above, and did not affect the Victoria Settlement Framework, the Gippsland Regional Growth Plan, or the Moe-Newborough Town Structure Plan.

Further relevant context is found cl 19.01, which contains planning policy in relation to energy and energy supply. At the time of the Minister’s decision, cl 19.01-2S provided:

Renewable energy
Objective
To promote the provision of renewable energy in a manner that ensures appropriate siting and design considerations are met.
Strategies
Facilitate renewable energy development in appropriate locations.
Protect energy infrastructure against competing and incompatible uses.
Develop appropriate infrastructure to meet community demand for energy services.
Set aside suitable land for future energy infrastructure.
Consider the economic and environmental benefits to the broader community of renewable energy generation while also considering the need to minimise the effects of a proposal on the local community and environment.
Recognise that economically viable wind energy facilities are dependent on locations with consistently strong winds over the year.

Clause 19.01-2S was amended on 28 October 2022, so that its objective is now to ‘support the provision and use of renewable energy in a manner that ensures appropriate siting and design considerations are met’. The first listed strategy is still to facilitate renewable energy development in appropriate locations.

What is the relevant ‘land’ for the purposes of cl 52.32?

It will be recalled that cl 52.32 of the Latrobe Planning Scheme prohibits ‘the use and development of land for a wind energy facility’ on land listed in the schedule — namely, all land ‘within five kilometres of a residential zone, an industrial zone, a business zone or a special purpose zone in the urban area of Moe, Morwell and Traralgon’. The parties were in dispute about whether the relevant ‘land’ for the purposes of cl 52.32 comprises the entire project area, or only the land on which wind turbines and other infrastructure connected with the wind farm may be constructed under the permits.

The question arises in this case because there is one parcel of land within the project area, Lot 77, which is arguably within five kilometres of the relevant urban land. The only infrastructure connected with the wind farm that is permitted on Lot 77 is electrical reticulation; the Latrobe permit does not allow the construction of a wind turbine on Lot 77.

SCA’s submissions

SCA’s position was that the relevant land comprises the entire project area, being all the land identified in the permits. In support of that position, it submitted that the definition of the land use term ‘wind energy facility’ in cl 73.03 is an inclusive definition. The inclusion of ‘any turbine, building or other structure or thing used in or in connection with the generation of electricity by wind force’ does not limit the meaning of ‘land used to generate electricity by wind force’. SCA argued that a wind energy facility is more than the land on which the turbines are located, and said that the Panel was wrong to confine its consideration to the location of the turbine closest to Moe.

In its written submissions, SCA contended that a wind energy facility is broader than the turbines used for generating electricity, and extends to the buildings and other structures that form part of the facility. In oral argument, SCA developed its contention about the extent of a wind energy facility. It submitted that the land between and around the turbines is an essential part of the wind farm, and is land that is used to generate electricity by wind force. SCA pointed out that the approved wind turbines are huge, more than 180 metres in diameter. It said that they will create wake and turbulence, and so need to be separated from each other to preserve the wind resource.

While SCA accepted that a permit can authorise a use and development over part of a land title, it argued that the permits in this case were not of that kind. It sought to distinguish the authorities of Able Demolitions & Excavations Pty Ltd v Yarra Ranges Shire[6] and Bingo Acquisitions Pty Ltd v Kingston City Council[7] from this case. In Able Demolitions, there was a pre-existing lease that identified the part of the land for which the permit was sought. In Bingo Acquisitions, the address of the land in the permit identified the relevant part of the land. SCA relied on the site layout plan submitted with the application to support its argument that, in this case, the planning unit and the permission are one and the same.
[6](2008) 160 LGERA 439 (Able Demolitions).
[7][2021] VCAT 325 (Bingo Acquisitions).

SCA noted that the Minister is yet to endorse the development and micro-siting plans, and said that it is common for turbines to be relocated or moved during the construction and implementation process. It referred to the approach that is taken by the Victorian Civil and Administrative Tribunal to determining whether development plans are ‘generally in accordance’ with application plans.[8] Applying that approach, SCA said that there remains significant flexibility about the location of turbines. It accepted that the Latrobe permit does not currently authorise the construction of a turbine on Lot 77, but emphasised the breadth of the Minister’s power to amend the permit.[9]
[8]Referring to Ryman Healthcare (Australia) Pty Ltd v Monash City Council [2020] VCAT 701, [13].
[9]Referring to Mondib Group Pty Ltd v Moonee Valley City Council [2021] VSC 722.

In reply, SCA further developed its contention that the permit authorises the use and development of the entire project area as a wind energy facility. It submitted that ‘use’ in cl 52.32 should be given a broad meaning to give effect to the protective purpose of the five kilometre prohibition.[10] In particular, the land that is to be used as a wind energy facility is not limited to the land on which the turbines and other physical infrastructure will be located.[11]
[10]Referring to Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (2008) 237 CLR 285, [8] (Kirby J), [69] (Hayne, Heydon, Crennan and Kiefel JJ).
[11]Referring to Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493, 504.

Minister’s submissions

The Minister submitted that the way in which land is used for wind farming purposes involves a network that sits within a broader landscape that is also used for other purposes, such as primary production.[12] In this case, the wind energy facility is proposed to be used and developed within a landscape that is used as a pine plantation. The critical question, in the Minister’s submission, is to determine which parts of the land are permitted for the use and development of the wind energy facility.
[12]Referring to AWF Prop Co 2 Pty Ltd v Ararat Rural City Council [2020] VSC 853, [20].

The Minister referred to some well-established principles:[13]
[13]Submissions on behalf of First Defendant dated 24 October 2022, [44].

a) A parcel of land may be used for more than one purpose. If the land is used for more than one purpose, and one is not ancillary to a dominant purpose, then both must be permitted.[14] The dominant purpose of the land is to be determined by assessing the “real and substantial’ purpose” of the use of the land”.[15]
b) A permit may authorise the use and development of only part of land within a single title.[16]
c) A permit should be interpreted by reference only to the text of the permit, including the conditions and any plans or other documents expressly or impliedly forming part of the permit.[17]
d) “Permit” is defined in the [Planning Act] to include “any plans, drawings or other documents approved under a permit”.[18]
e) Once endorsed, plans form an integral part of the permit.[19]
f) The question as to the extent of the land that has been permitted for a particular use and development turns upon the construction of the Permit as a whole.[20]

[14]Referring to Cascone v City of Whittlesea (1993) 80 LGERA 367, 378.

[15]Referring to Cascone, 376, and the authorities cited there.

[16]Referring to Able Demolitions, [22] and Bingo Acquisitions, [33].

[17]Referring to Bingo Acquisitions, [24], and the authorities cited there.

[18]Referring to Planning and Environment Act 1987 (Vic), s 3(1) (definition of ‘permit’) (Planning Act).

[19]Referring to Zuzek v Boroondara CC [2007] VCAT 2174, [26]–[27]; Vestey v Warrnambool CC (2008) 160 LGERA 204, [32]–[35].

[20]Referring to Bingo Acquisitions, [37].

According to the Minister, the address of the ‘Land’ in the permit by reference to a title cannot be determinative of whether a use and development is permitted across the whole or only part of the title. That must be determined by reference to the permit as a whole. The Minister relied on Able Demolitions to support the submission that the concept of ‘planning unit’ — developed in the context of disputes about the existing use of land — is not useful in this case.[21] Here, as in Able Demolitions, the relevant question is simply ‘what is the land of the proposed use?’[22]
[21]Referring to Able Demolitions, [30]–[35].
[22]Referring to Able Demolitions, [34].

The Minister pointed out that reg 13(b) of the Planning and Environment Regulations 2015 (Vic) requires an application for a permit to indicate clearly the land affected by the application by stating the address of the land, or stating the title particulars of the land, or including a plan showing the land, or any combination of those. Among other things, this assists the responsible authority to identify who must be notified about the application.[23] In light of this requirement, there is good reason to identify a project area by reference to title details.
[23]Referring to Planning Act, s 52.

In this case, the Minister argued, the land authorised to be used to generate electricity by wind force is to be identified by reference to the items of infrastructure which may be developed on the land, as authorised by the permit, to assist in the generation of electricity. Rather than defining the relevant land by title boundaries, the Minister argued that it could be defined roughly by a polygon drawn around the area on which the permit authorises the construction of turbines, buildings, access tracks, and power reticulation. That polygon separates the dominant use of the land for the purposes of a wind farm from the dominant use for the purposes of a pine plantation.

In relation to the flexibility that exists within Condition 1 of the Latrobe permit, the Minister submitted that Condition 1 allows only ‘incidental adjustment’ of the location of the turbines and other infrastructure shown on the application plans.[24] The Minister acknowledged the possibility that wholesale relocation of turbines and other infrastructure might be authorised by an amendment to the permit. However, the Minister also accepted that any amendment would be subject to the five kilometre prohibition.
[24]Referring to Cumming v Minister for Planning (2020) 245 LGERA 164, [139].

Delburn’s submissions

Delburn also contended that the five kilometre zone established by cl 52.32-2 is to be measured from the locations where the physical infrastructure of the wind energy facility will be, and not from the boundaries of the project area. It submitted that the wording of cl 52.32-2 is narrowly focused on creating a prohibition between certain designated land and a location with a wind energy facility. The relevant location is the land on which there will be physical infrastructure such as turbines, buildings, anemometers, and other things connected with the generation of electricity from wind.

Delburn supported this argument by reference to the extrinsic materials for Amendment VC82, which amended cl 52.32-2 ‘to identify locations where a wind energy facility is prohibited’.[25] It also referred to the application and decision guidelines for a permit application for a wind energy facility, which direct attention to the impact of the infrastructure that is used to generate electricity, particularly turbines.[26] Delburn submitted that the fact that the impacts that require assessment are those that arise from infrastructure supported its contention that the relevant location is the land on which the infrastructure will be located.
[25]Referring to Victoria Planning Provisions, Notice of Approval of Amendment VC82 (Victoria Government Gazette, S 278, 29 August 2011), 1; Amendment VC82 (29 August 2011), 2–3; Victoria Planning Provisions, Amendment VC82, Explanatory Report, 1.
[26]Referring to Latrobe Planning Scheme, cls 52.32-4, 52.32-5.

In response to SCA’s submission that the land used to generate electricity by wind force included the land between and around the turbines and other infrastructure, Delburn pointed out that the Latrobe permit required turbines to be set back only 100 metres from the boundary of the project area and from roads, and to be no less than 300 metres apart. This did not suggest that a larger footprint was necessary for turbines to function effectively, an assertion that was not supported by expert engineering evidence. Delburn also relied on the biodiversity assessment plans that were submitted with the application, and are referenced in Condition 1 of the Latrobe permit, which delineate an ecological ‘impact footprint’ around the turbines, access roads, cabling, buildings and other infrastructure.[27]
[27]Described in Condition 1 as ‘Figure 2 Overview 2, 2a, 2b, 2c, 2d, 2e, 2f, 2g Ecological Features – Latrobe City (Ecology And Heritage Partners, 30 June 2021)’.

Delburn argued that interpreting cl 52.32-2 as setting up a five kilometre zone of exclusion between certain designated urban areas and the location of physical infrastructure for a wind energy facility would align with the express strategy of facilitating renewable energy development in appropriate locations.[28] It said that the focus on ‘locations’ means that wind energy infrastructure will be appropriately separated from designated urban areas, while avoiding an overly restrictive reading of cl 52.32-2. Conversely, accepting SCA’s interpretation of cl 52.32-2 would significantly increase the exclusion zone and restrict the establishment of appropriately located wind farms.
[28]Referring to Latrobe Planning Scheme, cl 19.01-2S.

In addition to the authorities referred to by the Minister, Delburn referred me to Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council, as authority for the proposition that a proposed use of land ‘need not conform to the artificial boundaries provided by real property descriptions’.[29] The land to which the application —or in this case the permit — relates may be greater or less than a particular title holding or allotment, so long as it includes all of the land to be devoted to the proposed use.
[29](1980) 145 CLR 485, 509 (Stephen J) (Pioneer Concrete).

Consideration

The parties agreed on the relevant principles of interpretation. As delegated legislation, the Latrobe Planning Scheme is to be interpreted in accordance with ordinary principles of statutory interpretation, by reference to its text, context and purpose. The starting point is the ordinary meaning of the words used in the relevant provisions, considered in their context, including the overall structure and other relevant provisions of the Planning Scheme, legislative history, and extrinsic materials.[30] The relevant provisions — cl 52.32-2, the schedule to cl 52.32, and the definition of the land use term ‘wind energy facility’ — should be construed so as to be consistent with the language and purpose of the Latrobe Planning Scheme as a whole, and an effort should be made to give meaning to every word of every provision.[31] At the same time, it must be borne in mind that the Planning Scheme is addressed to planning practitioners, and ought to be construed in light of practical considerations.[32]
[30]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, [47] (Hayne, Heydon, Crennan and Kiefel JJ); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ).
[31]Project Blue Sky Inc v Australian Broadcasting Association (1998) 194 CLR 355, [69]–[71] (McHugh, Gummow, Kirby and Hayne JJ).
[32]Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180, 183 (Lord Reid).

Starting with the text, cl 52.32-2 provides that ‘the use and development of land for a wind energy facility is prohibited at a location listed in the table’ to the clause. Those locations include the land listed in the schedule to cl 52.32, being ‘all land within five kilometres’ of the designated zones in the urban areas of Moe, Morwell and Traralgon. According to the definition in cl 73.03, land is used for a wind energy facility if it is ‘used to generate electricity by wind force’. As SCA pointed out, the definition of ‘wind energy facility’ includes land used for turbines and other infrastructure connected with the generation of electricity by wind force, but is not necessarily limited to that land.

As to context, cl 52.32 directs attention to the impact of the infrastructure that must be constructed or brought onto the land in order for it to be used to generate electricity from wind force. For example, cl 52.32-3 imposes particular requirements for an application that includes a proposed turbine within one kilometre of a dwelling. Otherwise, application requirements are dealt with in cl 52.32-4. The clause first requires a detailed site and context analysis, and then details of the proposed design and how it responds to the site analysis. The design response must include, among other things:

▪Detailed plans of the proposed development.
▪Plans and elevations of transmission infrastructure and electricity utility works required to connect the facility to the electricity network, and access road options.
▪Accurate visual simulations illustrating the development in the context of the surrounding area and from key public view points.

There is also a separate, mandatory requirement for a predictive noise assessment report, which must be verified by an environmental auditor.

Clause 52.32-5 sets out the decision guidelines for an application to use and develop land as a wind energy facility:

Before deciding on an application, in addition to the decision guidelines of Clause 65, the responsible authority must consider, as appropriate:
▪The Municipal Planning Strategy and the Planning Policy Framework.
▪The effect of the proposal on the surrounding area in terms of noise, blade glint, shadow flicker and electromagnetic interference.
▪The impact of the development on significant views, including visual corridors and sightlines.
▪The impact of the facility on the natural environment and natural systems.
▪The impact of the facility on cultural heritage.
▪The impact of the facility on aircraft safety.
▪Policy and Planning Guidelines for Development of Wind Energy Facilities in Victoria (Department of Environment, Land, Water and Planning, November 2021).
▪The New Zealand Standard NZS6808:2010, Acoustics - Wind Farm Noise.

Throughout cl 52.32, the emphasis is firmly on new infrastructure that is proposed for development, and its impact on the site and the surrounding area. There is a distinction made between the ‘site’ and the ‘facility’. There is nothing in cl 52.32 that supports the view that the wind energy facility will necessarily occupy the whole of the site, identified by its title boundaries.

Further context is provided by the general law in which the Latrobe Planning Scheme sits, including the principles referred to by the Minister.[33] Of particular relevance is the established principle that a permit may authorise the use and development of only part of a parcel of land, and that title boundaries are not determinative of the land to which the permit relates.[34] It is common for a permit to identify relevant land by reference to its particulars of title, perhaps because this is one of the prescribed ways of describing land in a permit application.[35] However, that description does not dictate a conclusion that the permit applies to the whole of that land. Whether that is so will depend on the construction of the permit, including any plans or other documents approved or incorporated by the permit, in light of ‘the objective matrix of facts and circumstances that supply the context in which the permit was issued’.[36]
[33]See [50] above.
[34]Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270, 274 (Barwick CJ), 288 (Stephen J); Pioneer Concrete, 494–9 (Gibbs J, Aickin J agreeing at 510, Wilson J agreeing at 511), 509 (Stephen J, Murphy J agreeing at 510); Able Demolitions, [22]; applied in Bingo Acquisitions, [33].
[35]Planning and Environment Regulations 2015 (Vic), reg 13(b).
[36]Vestey, [48]; see also Oakden Shopping Centre Pty Ltd v City of Port Adelaide Enfield (2004) 137 LGERA 189, [39]–[48].

As to purpose, the stated purpose of cl 52.32 is to facilitate the establishment and expansion of wind energy facilities, in appropriate locations with minimal impact on the amenity of the area. Also relevant is the policy of supporting the provision and use of renewable energy in a manner that ensures appropriate siting and design considerations are met.[37] An interpretation that furthers these purposes is to be preferred over one that does not.[38]
[37]Latrobe Planning Scheme, cl 19.01-2S.
[38]Interpretation of Legislation Act 1984 (Vic), s 35(a).

Clearly, a wind energy facility is not limited to the land on which the turbines stand. The context of cl 52.32 confirms that the facility extends to the land where the rest of the infrastructure connected with the generation of electricity — including the anemometers, the operations and maintenance buildings, the car park, the access roads, and the electrical cabling — is located. The Latrobe permit authorises the development and use of all of this area for a wind energy facility, which is conveniently identified as the ‘impact footprint’ in the biodiversity assessment maps referred to in Condition 1.

The question whether land around and between turbines and other wind farm infrastructure is land used to generate electricity by wind force is not one that should be answered in the abstract. In a case in which the question arises, the answer will depend on the proper construction of the permit, including both its text and any relevant plans, understood against the objective factual background in which the permit was granted.[39]
[39]Vestey, [48]; see also Minister Administering the Crown Lands Act, [69]–[70] (Hayne, Heydon, Crennan and Kiefel JJ).

In this case, the question only arises in relation to the land on Lot 77. None of the other parcels of land that make up the project area is arguably within five kilometres of the urban areas of Moe, Morwell and Traralgon.

Reading the permit together with the application plans approved in Condition 1, only the part of Lot 77 where electrical cabling is to be installed is authorised to be used to generate electricity from wind force. I can find no indication that any other part of Lot 77 is authorised to be used for that purpose — that is, to be used and developed as a wind energy facility. The permit conditions prescribing setback and separation distances for turbines are not relevant to Lot 77, where no turbines are to be located. This understanding of what the permit authorises on Lot 77 is confirmed by the Panel report, which indicates that the Panel recommended granting the permit on the basis that the project area outside the impact footprint would continue to be used for plantation timber production.[40]
[40]Panel report, 1, 5, 58, 85-86.

There is some flexibility as to what is authorised by the permit, in that the development plans are yet to be endorsed, and need only be ‘generally in accordance with’ the application plans. While this enables some incidental adjustment of the location of the turbines and other infrastructure, it does not allow their wholesale relocation across the project area, and does not authorise the construction of a wind turbine on Lot 77.[41]
[41]Cumming, [139].

I am also conscious that the permit may be amended in future, and that the endorsed plans may be altered or modified with the written consent of the Minister.[42] I can only review the lawfulness of the permits that the Minister has granted, and cannot pre-empt possible future decisions about those permits. However, SCA’s members can take some comfort from the Minister’s acknowledgment that the five kilometre prohibition would apply to any future decision to alter the location of the turbines and other infrastructure within the project area.[43]
[42]Latrobe permit, Condition 3.
[43]Transcript, 24 March 2023, 29:21-25.

In conclusion on this question, in this case the relevant ‘land’ for the purposes of cl 52.32 is the land on Lot 77 where installation of electrical reticulation is authorised by the permit. This is an area generally in accordance with the impact footprint marked on the application plan titled ‘Figure 2a – Ecological features – Latrobe City, Biodiversity Assessment for the Delburn Wind Farm’. The permit does not authorise the use and development of any other part of Lot 77 as a wind energy facility.

The conclusion I have reached is consistent with the stated purpose of cl 52.32, which is to facilitate the establishment of wind energy facilities. It also furthers the policy of supporting the provision of renewable energy.[44] Of course, these purposes are qualified by a requirement for appropriate location or siting of wind energy facilities. Whether the location of a wind energy facility is appropriate must logically depend on where the turbines and other infrastructure are placed. It cannot depend on where the cadastral boundaries of the relevant parcels of land happen to fall.
[44]Latrobe Planning Scheme, cl 19.01-2S.

What are the urban areas of Moe, Morwell, and Traralgon?

The five kilometre prohibition applies from ‘a residential zone, an industrial zone, a business zone or a special purpose zone in the urban areas of Moe, Morwell and Traralgon’. While there is no difficulty identifying the relevant zones, there was disagreement about what is meant by ‘the urban areas of Moe, Morwell and Traralgon’.

SCA’s submissions

SCA submitted that the phrase ‘urban area’ bears its ordinary and grammatical meaning. By reference to various authorities that had considered the word, it suggested the following meanings of ‘urban’:

(a) ‘pertaining to, or constituting, a city or town’;[45]

(b) ‘of, or relating to, or comprising a city or town’, ‘occurring or situated in a city or town’ and ‘characteristic of or accustomed to cities; citified’;[46]

(c) ‘characteristic of, or pertaining to, or situated within the limits of, a city or cities’.[47]

[45]Referring to Modog Pty Ltd v Baulkham Hills Shire Council [2000] NSWLEC 180, [12] (Pearlman J); Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2007] NSWLEC 182, [23] (Preston CJ); Australian Lifestyle Corporation Pty Ltd v Wingecarribee Shire Council (2008) 168 LGERA 239, [16].

[46]Referring to Sandstrom & Ors v Sunshine Coast Regional Council & Windansea Boardriders Club [2021] QPEC 1107, [101] (Fantin DCJ).

[47]Referring to Spic-n-Span Corporation Pty Ltd v Fredericks (1982) 50 LGRA 46, 50 (Wells J).

SCA next submitted that the Latrobe Planning Scheme uses the phrase ‘urban area’ in distinction from related concepts such as ‘urban zone’, ‘urban places’, and ‘urban context’. It also distinguishes ‘urban areas’ from ‘rural areas’ and ‘non-urban areas’.

Turning to context and purpose, SCA referred to the extrinsic materials for Amendment VC82, which introduced the five kilometre prohibition into cl 52.32 of all planning schemes in Victoria. Relevantly, the Explanatory Report explained that the prohibition applies to:

[L]and within five kilometres of major regional cities and regional centres specified in the Regional Victoria Settlement Framework in the State Planning Policy Framework being Mildura, Swan Hill, Echuca, Shepparton, Benalla, Wangaratta, Wodonga, Horsham, Ararat, Ballarat, Greater Bendigo, Hamilton, Portland, Warrnambool, Colac, Geelong, Moe, Morwell, Traralgon, Sale and Bairnsdale …

SCA referred to the Regional Victoria Settlement Framework at the time Amendment VC82 was adopted, which referred to major regional cities including ‘the Moe, Morwell and Traralgon cluster’. It pointed out that the current Victoria Settlement Framework refers to the relevant area as ‘Latrobe City’, which is the grouping of Moe, Morwell, Traralgon, and Churchill.[48]
[48]See [36] above.

SCA put forward several different interpretations of ‘the urban areas of Moe, Morwell and Traralgon’ in its written submissions and in the course of oral submissions. As best I could understand, it submitted that the phrase meant:

(a) Moe, Morwell and Traralgon as a composite urban area; or

(b) alternatively, the urban area of Moe-Newborough.

It relied on the ambulatory nature of planning schemes to argue that ‘Moe’ should now be understood to mean ‘Moe-Newborough’, and perhaps also that ‘Moe, Morwell and Traralgon’ now meant Latrobe City, including Churchill.

On the basis that ‘Moe’ meant ‘Moe-Newborough’, SCA submitted that land on Haunted Hills Road at the southern tip of Newborough formed part of the urban area of Moe (Haunted Hills land).

SCA also contended in its written submissions that the property at 149 Coalville Road, Moe South, which is outside the township boundary of Moe-Newborough, is within the urban areas of Moe, Morwell and Traralgon. This argument was based on the zoning of 149 Coalville Road as Neighbourhood Residential, which SCA said meant it should be characterised as urban land. The argument was pressed only faintly in oral submissions.

Minister’s submissions

The Minister’s position was that the five kilometre prohibition introduced by Amendment VC82 contains three elements: zoned land, locality, and urban area. She said that all three must be present for the prohibition to apply. She rejected the proposition that the word ‘urban’ simply describes Moe, Morwell and Traralgon.

The Minister also rejected the notion that ‘Moe, Morwell and Traralgon’ refers to a composite urban area, or networked city. She referred to the extrinsic materials for Amendment VC82, in which Moe, Morwell and Traralgon were part of a longer list of Victorian regional cities and centres, separated by commas. In the advisory note to Amendment VC82, the regional cities and centres were listed alphabetically, so that Moe, Morwell and Traralgon did not appear together in the list.

As to locality, the Minister said that the ordinary meaning of the words ‘Moe, Morwell and Traralgon’ refers to the towns in Gippsland, although that says nothing about their precise boundaries. They are each names of localities that have been assigned and registered by the Registrar of Geographic Names under Part III of the Geographic Place Names Act 1998 (Vic). The Minister relied on the notice published in the Government Gazette on 23 July 1998, of the assignment of locality names in the Shire of La Trobe, and their boundaries within the municipality. These included the towns and rural districts of Moe, Moe South and Newborough. She said that these localities are reflected in the locality mapping in VicPlan, an online tool and information service provided by the Victorian Government to users of the planning system. The Minister pointed out that 149 Coalville Road is in the locality of Moe South, not Moe.

As to urban area, the Minister accepted that ‘urban’ has the ordinary meaning set out in SCA’s written submissions, but said that ordinary meaning did not enable the precise identification of the ‘urban area’ of Moe. She submitted that the phrase ‘urban areas of Moe, Morwell and Traralgon’ must be read in its context, in particular by reference to other parts of the Latrobe Planning Scheme.

The Minister drew attention to various features of the settlement policies in cls 2.03, 2.04, and 11.01 of the Latrobe Planning Scheme,[49] in support of a submission that the urban area of each locality is delineated by the township boundary of the relevant structure plan in cl 2.04. While there is a single structure plan for Moe-Newborough, two urban areas that are joined to create a single urban settlement, Narracan Creek represents the boundary between the two. The Minister demonstrated that the township boundary of Moe shown in the structure plan does not correspond with the boundary of the locality shown in VicPlan – that is, that the urban area of Moe is more confined than the locality of Moe.
[49]Set out at [31]–[40] above.

In summary, the Minister submitted that the word ‘Moe’ is used in the Latrobe Planning Scheme:

(a) at a State and regional level, to identify a place where growth is promoted, but without any precise settlement boundaries;

(b) at a local/municipal level, in contradistinction to the areas identified as ‘Moe South’ and ‘Newborough’.

The Minister argued that the Planning Scheme defines the ‘urban area’ of Moe by drawing a settlement boundary which identifies areas of existing and future growth.

As to purpose, the Minister referred to the extrinsic materials for Amendment VC82 in aid of a submission that the purpose of the amendment was to avoid wind energy facilities being developed in proximity to places nominated for future growth. She said that this supported the view that the ‘urban areas of Moe’ includes areas nominated as future urban areas, within the township boundary identified in the structure plan.

Delburn’s submissions

Delburn also contended that the reference to ‘Moe’ in the schedule to cl 52.32 should not be interpreted to include Moe South, or Newborough, or a broader area generally described as the Moe-Morwell-Traralgon cluster. It submitted that there are three spatial characteristics that must be present in order for the five kilometre prohibition to apply to a location: it must be in one of the four specified zones, it must be in an urban area, and it must be in one of the three geographic localities of Moe, Morwell, or Traralgon.

According to Delburn, Moe is a place, the name and boundaries of which are defined under the Survey Co-ordination Act 1958 (Vic) and the Geographic Place Names Act. Delburn referred to several sources, including the map of the locality of Moe from the VicNames Register of Geographic Names, to contend that the locality of Moe is distinct from the localities of Moe South, Newborough, Morwell, and Traralgon. It also referred to cls 2.03-1 and 11.01-1L of the Latrobe Planning Scheme, which it said identify Moe as a location with different or complementary roles to Moe South, Newborough, Morwell, and Traralgon. The urban area of Moe is defined in the Planning Scheme, by the township settlement boundary shown in the Moe-Newborough Structure Plan. That boundary delineates the urban areas from the non-urban areas of both localities.

Delburn submitted that the Latrobe Planning Scheme does not treat Newborough as part of Moe. It said that, if the drafters had intended the five kilometre prohibition to apply to Moe-Newborough, they would have used that place name in the schedule to cl 52.32 – as is done to identify the joint urban settlement of Moe-Newborough elsewhere in the Planning Scheme.

Delburn also submitted that 149 Coalville Road is in Moe South and accordingly could not be regarded as part of any urban area of Moe. Being in Moe South, it is not ‘of’ Moe, but rather is beyond or outside Moe. Alternatively, if ‘urban area’ is used in a descriptive manner, as submitted by SCA, Delburn said that the land at 149 Coalville Road could not be described as urban land. That was because, notwithstanding its residential zoning, it had not been used or developed for urban purposes.

Joint memorandum

Following the hearing, the parties provided a joint memorandum setting out the historical versions of the Moe-Newborough Structure Plan before and since the incorporation of Amendment VC82 into the Latrobe Planning Scheme on 29 August 2011. It is apparent that the structure plan evolved between 2007 and 2021, and that the township boundary has changed over that time.

The following matters are of note:

(a) Prior to the gazettal of Amendment C62 on 14 January 2010, the land at 149 Coalville Road, Moe South was outside the urban/rural boundary in the Moe Local Structure Plan;

(b) Amendment C62 inserted a revised Moe-Newborough Structure Plan which extended the township boundary around 149 Coalville Road;

(c) As at 29 August 2011, when Amendment VC82 inserted cl 52.32 and the schedule into the Latrobe Planning Scheme, 149 Coalville Road was within the township boundary shown on the Moe-Newborough Structure Plan;

(d) The Moe-Newborough Structure Plan was amended by Amendment C86, gazetted on 17 December 2015, so that 149 Coalville Road was outside the township boundary; and

(e) 149 Coalville Road remains outside the township boundary shown on the current Moe-Newborough Structure Plan, inserted by Amendment C122 on 28 May 2021.

Consideration

In order for the five kilometre prohibition to be effective, the ‘urban areas of Moe, Morwell and Traralgon’ must be areas that can be identified with precision. The boundaries of those urban areas must be objectively ascertainable, so that the responsible authority can know whether or not land is within five kilometres of those urban areas. The various settlement plans in the Latrobe Planning Scheme that show the planned direction of future urban growth in the municipality are plainly not suitable for that purpose. The boundaries of the urban areas of Moe, Morwell, and Traralgon were not clearly delineated in the Regional Victoria Settlement Framework map that was in the Planning Scheme when Amendment VC 82 was adopted. The current plans, reproduced in Figures 4, 5 and 6,[50] are all graphical representations that are not suitable for direct measurement.[51]
[50]See [33], [36] and [38] above.
[51]Transcript, 23 February 2023, 63:3–64:8 (Cummins).

The principles of interpretation summarised at [60] above direct attention first and foremost to the text of the relevant provisions. The ordinary meaning of ‘Moe, Morwell and Traralgon’ is simply those three towns in the Latrobe Valley. The place name ‘Moe’ does not ordinarily mean ‘Moe-Newborough’. The three separate place names ‘Moe, Morwell and Traralgon’ do not ordinarily mean one composite ‘Latrobe City’, or extend to Churchill, or include smaller localities such as Moe South.

This is confirmed by the immediate context of the Latrobe Planning Scheme. Clause 2.03-1 in the Municipal Planning Strategy speaks of four separate towns – ‘Churchill, Moe-Newborough, Morwell and Traralgon’ – which together form a ‘networked city’. The clause expressly refers to Moe and Newborough as separate urban areas which are joined, ‘creating a single urban settlement (Moe-Newborough)’. In this way, cl 2.03-1 identifies Moe and Newborough as two separate urban areas, which together form a single urban settlement. Moe South is placed in the distinct category of ‘rural living precincts’, areas comprising ‘clusters of housing on small rural lots’ with limited services that support farming and rural living communities.

The settlement policy in the Planning Policy Framework also recognises Traralgon, Morwell, Moe (not Moe-Newborough), and Churchill as separate regional centres that are grouped together as ‘Latrobe City’. Clause 11.01-1R does not suggest that these separate centres have somehow merged into one. Rather, it groups them together for the purposes of settlement policy, as Gippsland’s regional city in which urban growth is to be supported. The separation between them is confirmed by cl 11.01-1L, which adopts a policy of maintaining ‘a clear separation between urban settlements’ – other than the Morwell to Traralgon Employment Corridor, which is not relevant here. There are separate structure plans for each of Moe-Newborough, Morwell, Traralgon, and Churchill.

The extrinsic materials for Amendment VC82 also support reading ‘Moe, Morwell and Traralgon’ as references to three separate towns rather than a single, composite one. I note in particular:

(a) The Explanatory Report lists the major regional cities and regional centres to which the five kilometre prohibition is to apply. Each city or centre is separated from the next by a comma, including ‘Moe, Morwell, Traralgon’. Had it been intended to group those three places into one city, it could have been identified as ‘Moe-Morwell-Traralgon’. While the Regional Victoria Settlement Framework referred to the three centres as a ‘cluster’ it did not treat them as a single settlement.

(b) The same major regional cities and regional centres are listed in the Advisory Note for VC82, but in a different order. The list in the Advisory Note is arranged alphabetically, with the result that Traralgon is separated from Moe and Morwell.

(c) The Advisory Note also foreshadowed that the ‘five kilometre exclusion area will be replaced with defined locations as growth planning for each centre is completed’. While these defined locations have not eventuated, structure planning for each of Moe, Morwell and Traralgon has been completed and incorporated in the Latrobe Planning Scheme.

Nothing in the extrinsic materials for Amendment VC82 supports reading ‘Moe’ to include Newborough or Moe South.

The broader statutory context also supports reading ‘Moe, Morwell and Traralgon’ to refer to three separate places, each with identified boundaries. The Geographic Place Names Act establishes a Register of Geographic Place Names, which incorporates the register of place names that was kept under the former Part II of the Survey Co-ordination Act.[52] Town and rural district names and boundaries in the Shire of Latrobe were gazetted on 23 July 1998, with some minor corrections made in the Government Gazette on 29 April 1999. Place names and boundaries in Latrobe have remained the same since then, as shown in Figure 8 below.

Figure 8: Latrobe City Town and Rural District Names and Boundaries, version 4.2b dated March 2012, gazetted 23 July 1998

[52]Geographic Place Names Act 1998 (Vic) s 9. Part II of the Survey Co-ordination Act 1958 (Vic) was repealed on 31 December 1998 by s 20 of the Geographic Place Names Act.

At the time Amendment VC82 was adopted, Moe, Morwell and Traralgon were distinct places registered on the Register of Geographic Place Names, each with its own boundaries. Moe was registered separately from neighbouring Newborough and Moe South. This remains the case. These registered place names are reflected in the locality mapping in VicPlan, the online tool and information service used by Victorian planning practitioners.

SCA did not identify any basis on which the Victorian system of identifying and registering geographic place names should be disregarded in interpreting the Latrobe Planning Scheme. To do so would be inconsistent with the principle that planning schemes must be interpreted in light of practical considerations, as documents addressed to and used by planning practitioners. It would be highly impractical to interpret a registered place name to mean something different, when there is no clear indication that this was intended.

Turning to the phrase ‘urban areas’, the word ‘urban’ is defined in the Macquarie Dictionary Online to mean:

adjective 1. of, relating to, or comprising a city or town.
2. living in a city or cities.
3. occurring or situated in a city or town.
4. characteristic of or accustomed to cities, citified.

This is consistent with the ordinary meaning of ‘urban’ put forward by SCA.[53]

[53]See [76] above. As Pearlman J observed in Modog Pty Ltd v Baulkham Hills Shire Council (2000) 109 LGERA 443, [12], the word ‘urban’ bears its grammatical and ordinary meaning, not any special or technical meaning. The ordinary meaning of a word is to be found in a dictionary, rather than in various authorities that consider the word’s meaning in different statutory contexts.

In the context of the Latrobe Planning Scheme, ‘urban area’ and ‘urban areas’ have a more specific meaning. Clause 11.02-2S requires the development of structure plans for urban areas. In August 2011, when Amendment VC82 was adopted, cl 11.02-3 provided for structure planning to ‘facilitate the orderly development of urban areas’. The same objective appeared in cl 11.02-2S when the Minister granted the permits in March 2022, although the strategies had been revised.[54] The primary strategy of the clause has consistently been to ‘ensure effective planning and management of the land use and development of an area’ through the preparation of relevant plans.
[54]Clause 11.02-2S was further amended by Amendment VC216, with effect from 10 June 2022. The objective of structure planning in cl 11.02-2S is now to ‘facilitate the fair, orderly, economic and sustainable use and development of urban areas’.

In accordance with cl 11.02-2S, structure plans have been prepared for the urban areas of the Latrobe municipality. These have been adopted as part of the Latrobe Planning Scheme and are now set out at cl 11.01-1L. As mentioned, there are separate structure plans for Moe-Newborough, Morwell, and Traralgon. Each structure plan has a clearly marked township boundary, which delineates the urban area or areas the subject of the structure plan.

In the case of Moe-Newborough, the structure plan relates to two urban areas which, as cl 2.03-1 recognises, have joined to create a single urban settlement. Moe South is outside the southern township boundary of Moe. For some years, 149 Coalville Road in Moe South was inside the township boundary in the structure plan – including in 2011 when Amendment VC82 inserted cl 52.32 and the schedule into the Latrobe Planning Scheme. However, the township boundary was revised in 2015, and from that time 149 Coalville Road has been outside the township boundary in the structure plan. As SCA submitted, planning schemes are ambulatory in nature, and a permit application must be determined based on the planning scheme ‘as then in force’.[55] As a result, the boundary of an urban area is to be identified by the township boundary shown on the structure plan for that area at the relevant time.
[55]The Sisters Wind Farm Pty Ltd v Moyne Shire Council (2012) 193 LGERA 126, [47]–[48].

In conclusion on this issue, the urban areas of Moe, Morwell, and Traralgon for the purposes of cl 52.32 of the Latrobe Planning Scheme are the areas within the township boundary shown on the structure plan for each place. Currently, the southern boundary of the urban area of Moe runs along Borrmans Street, and the urban area of Moe is separated by Narracan Creek from the urban area of Newborough. The same boundaries were in place when the Minister granted the Latrobe permit in March 2022.

It follows that 149 Coalville Road in Moe South does not form part of the urban area of Moe, and nor does the Haunted Hills land in Newborough. Although the land at both locations is in a residential zone, in neither case is the land in Moe, or in its urban area.

Is any of the ‘land’ less than five kilometres from the urban area of Moe?

Having determined that the relevant southern boundary of the urban area of Moe is Borrmans Street, the question that remains is whether any part of the wind energy facility authorised by the Latrobe permit is within five kilometres of that boundary. The answer is clearly not.

It was not in dispute that the distance from the centreline of Borrmans Street to the closest title boundary of Lot 77 is more than five kilometres.[56]
[56]Delburn Wind Farm Pty Ltd, Notice to Admit, 16 December 2022, [1](a); Strzelecki Community Alliance Incorporated, Notice of Dispute, 4 January 2023, [1].

The relevant distances are shown in Figure 9 below, a plan prepared by Peter Toole, a licensed surveyor engaged by Delburn, showing five kilometre radius measurements from three locations. The radius marked in red is taken from the centreline of Borrmans Street, the radius marked in blue is measured from the southern tip of 149 Coalville Road, and the radius marked in green is taken from the southern tip of the Haunted Hills land.

Figure 9: Plan of 5km radius measurements from nominated external locations, annexed to the Expert Witness Report of Peter Toole dated 15 August 2022

As can be seen, no part of the project area for the Delburn Wind Farm is within five kilometres of Borrmans Street, which is the southern boundary of the urban area of Moe. Additionally, the land on Lot 77 where installation of the electrical reticulation is authorised by the permit is outside that five kilometre radius, and also the five kilometre radii from the southern tips of 149 Coalville Road and the Haunted Hills land.

Joshua Cummins, also a licensed surveyor, was engaged by SCA to identify those parts of the project area that are within five kilometres of the urban areas of Moe, Morwell and Traralgon. In cross-examination, Mr Cummins agreed that the following distances are more than five kilometres:[57]
[57]Transcript, 23 February 2023, 71:1-8 (Cummins). See also Notice to Admit, 16 December 2022, [1](b), (d), (e).

(a) the distance from the centreline of Borrmans Street to the closest infrastructure forming part of the wind energy facility depicted in the application plan referenced in Condition 1 of the Latrobe permit;

(b) the distance from the southernmost edge of 149 Coalville Road to the closest infrastructure; and

(c) the distance from the southernmost corner of the Haunted Hills land to the closest infrastructure.

No part of the project area is within five kilometres of the urban areas of Moe, Morwell and Traralgon. More specifically, none of the land on Lot 77 where installation of electrical reticulation is authorised by the permit is within five kilometres of the urban area of Moe.

Disposition

The Latrobe permit does not authorise the use and development of land as a wind energy facility within five kilometres of the urban areas of Moe, Morwell, and Traralgon. The proceeding must therefore be dismissed. I will hear the parties on the question of costs.

[2023] VSC 132

27 March 2023