The Macarthur Wind Farm case

Facts and background

The Macarthur Wind Farm case came before the the Civil and Administrative Tribunal of Victoria in 2006.

The applicants in this case are the Macarthur Wind Farm Pty Ltd and Hamis officer, and the respondents are Mr&Mrs Gardner.

This is a case where the applicants appealed/opposed the decision of the Moyne Shire Council granting permit to Mr&Mrs Gardner to build farm stay units in vicinity of sheep used for wool production.

Applicant opposed permit due to proposal to construct a wind turbine energy facility on adjacent land was proceeding through the regulatory processes for determination by the Minister of Planning.

The issue here is -whether to allow granting of permit for farm stays in light of energy facility proposal.

Clause 11 of the decision guidelines for the rural zone required the Tribunal to endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development.

Although the application for approval to construct a wind turbine energy facility on adjacent land had not been finalised, the Tribunal accepted that it was “a seriously entertained planning proposal.” The proposed use of adjacent land was thus relevant.

The Tribunal overturned the permit the council had granted to build the farmstay units in order to avoid future land use conflict. The Tribunal noted that the landowners were using the permit application, ‘at least in part, as a means to further voice their opposition to that proposal’.

In making the decision, the tribunal considered the effect of a permit application for a proposed 183 turbine wind farm on nearby land. The wind farm application had been examined by a planning panel after lengthy public hearings and a decision by the Minister for Planning was pending; was supported by expert evidence; had policy support under the scheme; and there were no issues under the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

The tribunal held the wind farm was a “seriously entertained planning policy” (within the meaning given in Lyndale & Black Pty Ltd v MMBW ; the dwellings were contrary to the principle of separating incompatible uses; and the wind farm was preferred having regard to net community benefit and sustainable development

The decision was thus based upon net community benefit and sustainable development.

Although the Tribunal did not say so in terms, it appears that the net benefit to the community would be the reduction in green house gas emissions and the use of renewable sources to generate electricity. Both, of course, consistent with sustainable development.

In setting aside a decision to grant a permit for two farm stay units, the tribunal considered the effect of a permit application for a proposed 183 turbine wind farm on nearby land. The wind farm application had been examined by a planning panel after lengthy public hearings and a decision by the Minister for Planning was pending; was supported by expert evidence; had policy support under the scheme; and there were no issues under the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

the tribunal held the wind farm was a “seriously entertained planning policy” (within the meaning given in Lyndale & Black Pty Ltd v MMBW ; the dwellings were contrary to the principle of separating incompatible uses; and the wind farm was preferred having regard to net community benefit and sustainable development

The justifications for the refusal is that

Tribunal was satisfied that the Macarthur wind energy facility is a seriously entertained proposal and that the effects of that proposal must be taken into account in assessing the application of the two farmstay units. On basis of having balanced conflicting objectives in favour of net community benefit and sustainable development the Tribunal was satisfied that the application for the farmstay units on the sheep farm should be refused.

The Tribunal overturned a permit the council had granted to landowners neighbouring a proposed wind farm to build tourist accommodation in order to avoid future land use conflict. The Tribunal noted that the landowners were were using the permit application, ‘at least in part, as a means to further voice their opposition to that proposal’ (at 23).

Environment — Planning and development — Development assessment — Ecologically sustainability

Appeal against decision of responsible authority granting permit.

Respondent sought to build farm stay units in vicinity of sheep used for wool production.

Appellant opposed permit due to proposal for turbine energy facility. Whether to allow granting of permit for farm stays

in light of energy facility proposal.

Held: Appeal allowed.

Energy facility seriously planned and supported by significant bodies hence community and sustainable development

interests to refuse grant of farm stay permit.

[4.40.46] Wind farm a seriously entertained planning proposalIn setting aside a decision to grant a permit for two (“farm stay”) units, the tribunal considered the effect of a permit application for a proposed 183 turbine wind farm on nearby land. The wind farm application had been examined by a planning panel after lengthy public hearings and a decision by the Minister for Planning was pending; was supported by expert evidence; had policy support under the scheme; and there were no issues under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The tribunal held the wind farm was a “seriously entertained planning policy” within the meaning given in Lyndale & Black Pty Ltd v MMBW (1983) 7 APA 319; 1 PABR 207:Macarthur Wind Farm Pty Ltd v Moyne SC (2006) 24 VPR 48; [2006] VCAT 1423 at [14]  .

[9.165.5] Accommodation units near proposed wind farmIn setting aside a decision to grant a permit for two (“farm stay”) units on land near the site of a proposed 183 turbine wind farm, the tribunal held the wind farm was a “seriously entertained planning policy” (within the meaning given in Lyndale & Black Pty Ltd v MMBW (1983) 7 APA 319; 1 PABR 207); the dwellings were contrary to the principle of separating incompatible uses;

and the wind farm was preferred having regard to net community benefit and sustainable development:Macarthur Wind Farm Pty Ltd v Moyne SC (2006) 24 VPR 48; [2006] VCAT 1423  .

[9560.17] Approved but not commenced proposal on adjoining landThe Tribunal must consider the impact of a proposal on an approved adjoining land use, even if that land use has not yet started — Macarthur Wind Farm Pty Ltd v Moyne SC (2006) 147 LGERA 62; 24 VPR 48; [2006] VCAT 1423   at [26].