Land and Environment Court New South Wales Medium Neutral Citation: Altomonte (Nominees) Pty Ltd v ib vogt GmbH on behalf of Sun Spot 4 Pty Ltd [2022] NSWLEC 1138 Hearing dates: Conciliation conference on 17 February 2022 Date of orders: 18 March 2022 Decision date: 18 March 2022 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders that: (1) The appeal is upheld, in part. (2) State Significant Development Application 8847 for the Dunedoo Solar Farm as described in the documents comprising the "EIS" (as defined in Annexure "A") is determined by the grant of consent subject to the conditions set out in Annexure "A". (3) The appeal is otherwise dismissed. Catchwords: DEVELOPMENT APPLICATION – State Significant Development – proposal for a 55-megawatt solar farm facility – conciliation conference – agreement between the parties – orders Legislation Cited: Contaminated Land Management Act 1997 Environmental Planning and Assessment Act 1979, ss 4.38, 8.8 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 3, 4, cll 3.6, 4.9, 4.10 State Environmental Planning Policy (Resilience and Hazards) 2021, Chs 3, 4, cl 4.6 State Environmental Planning Policy (State and Regional Development) 2011 State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 2, cl 2.42 Warrumbungle Local Environmental Plan 2013, cll 6.3, 6.4, 6.5 Category: Principal judgment Parties: Altomonte (Nominees) Pty Ltd (Applicant) ib vogt GmbH on behalf of Sun Spot 4 Pty Ltd (First Respondent) Minister for Planning and Public Spaces (Second Respondent) Representation: Counsel: C Drury (Solicitor) (Applicant) K Richards (Solicitor) (First Respondent) L Sims (Second Respondent) Solicitors: Sparke Helmore (Applicant) K&L Gates (First Respondent) Department of Planning, Industry and Environment (Second Respondent) File Number(s): 2021/303846 Judgment Introduction 1. This objector appeal is brought under s 8.8(2) of the Environmental Planning and Assessment Act 1979 (EPA Act), by Altomonte (Nominees) Pty Ltd, against the determination of the Minister for Planning and Public Spaces on 2 September 2021 of a State significant development (SSD) for a solar farm (Solar Farm) on land north of the township of Dunedoo, in mid-west New South Wales (SSD Consent). 2. The site is made up of the following allotments: * Lots 37, 80, 137 and 140 in Deposited Plan 754309 * Lot 1 in Deposited Plan 854326 * Lot 1 in Deposited Plan 1260716 * Lot 1 in Deposited Plan 535659 * Lot 119 in Deposited Plan 754291 * Lot 7011 in Deposited Plan 93332 * Lot 7012 in Deposited Plan 93290 * Lots 181, 182, 183, 184, 185, 186, 197, 198, 199, 200 and 201 in Deposited Plan 754291 1. The development comprises approximately 173,000 solar panels, up to 25 power conversion units, an on-site substation, a battery energy storage system and operational infrastructure including a site office and road upgrades. The SSD Consent also approved the construction and use of: 1. one of three alternative electricity transmission route options for the 66-kilovolt transmission line required to connect the proposed on-site substation into the existing substation owned by Essential Energy (Existing Substation). The three alternative options are described at pars 8-10 of the First Respondent's Statement of Facts and Contentions in Reply, filed on 10 January 2022 (First Respondent's SOFR); and 2. an extension to the Existing Substation to accommodate the Solar Farm. 1. When constructed, the Solar Farm will have a generating capacity of up to 55 megawatts and the potential to provide 60.48 megawatts of battery energy storage. 2. Put simply, the objector is concerned that the development has an adverse visual impact on land it owns, primarily on two residences: 1. the residence marked as R3 (called "Rosedale") which is located approximately 664 metres west of the Solar Farm Land; and 2. the residence marked as R4 (called "Romani") which is located approximately 346 metres northeast of the Solar Farm Land. 1. In particular, the objector contended that the vegetation buffer originally proposed did not adequately screen views to the Solar Farm from residences R3 and R4. 2. In an effort to resolve the matter, the Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties on 17 February 2022. I presided over the conciliation conference. 3. During the conciliation conference, the First Respondent, who holds the SSD Consent, agreed to make the following amendments to the layout of the Solar Farm: 1. to further reduce visual impacts of the Solar Farm on residences R3 and R4, a change to the approved layout is proposed to consolidate the location of the batteries to a central yard, located in the south-eastern corner of the site (Central Battery Yard); 2. to increase visual impact mitigation in relation to residences R3 and R4, changes to the approved layout are proposed to incorporate: 1. new vegetation screening along the north-south eastern boundary of the Solar Farm; and 2. additional vegetation screening along the east-west boundary of the Solar Farm, (Additional Screen Planting); 1. as a result of the Central Battery Yard and Additional Screen Planting: 1. the overall extent of the battery arrays is proposed to reduce by approximately 0.12 hectares; and 2. minor corresponding changes are proposed to the location of the internal access road, onsite substation and site compound which will result in the clearing of an additional approximately 0.76 hectares of vegetation clearing. 1. The First Respondent also proposed the following minor changes be made to the existing conditions of the SSD Consent: 1. include a new condition 12A in Schedule 3 to ensure the Planning Secretary cannot agree to waive the requirement for the landscape screening required by condition 12 of Schedule 3 to minimise views of the development from residences R3 and R4 within 3 years of commencing operations; 2. require an agreed Landscaping Plan prepared by Moir Landscape Architecture dated 16 February 2022 (Agreed Landscaping Plan) be implemented under condition 13 of Schedule 3; 3. include a new condition 13A in Schedule 3 which requires that any future updates to the Agreed Landscaping Plan be made in consultation with the applicant as the owner of residences R3 and R4; 4. include a new condition 21A in Schedule 3 to ensure that any security cameras installed as part of the Solar Farm are mounted so that they are not directed towards residences R3 and R4; 5. insert additional wording in condition 29(b) to clarify the scope of any Fire Safety Study prepared before commencement of the construction of the Solar Farm. 1. The Amended Proposal is supported by analysis prepared by NGH Consulting Pty Ltd (with input from Moir Landscape Architecture), dated 15 February 2022. 2. At the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to them. 3. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application subject to the conditions in Annexure "A". 4. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings in a comprehensive jurisdictional submission. The submission explains how the jurisdictional prerequisites have been satisfied. Based on the evidence before me, I accept the parties' joint submission as to my jurisdiction in this case. 5. In that regard, I am satisfied in respect of the following matters. Solar farm is State significant development 1. The Solar Farm is classified as SSD under the State Environmental Planning Policy (State and Regional Development) 2011 because the development is for the purpose of electricity generating works with a capital investment value of more than $30 million. 2. But for being SSD, the development would otherwise be designated development pursuant to cl 18 of Sch 3 to the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) as it will generate more than 30 megawatts of electrical power. 3. As a result of the development being declared to be SSD: 1. Development consent may be granted despite the development being partly prohibited by an environmental planning instrument; 2. the First Respondent is excused from the requirement to obtain certain authorisations which may otherwise be required to carry out development as approved by a SSD Consent; and 3. the Warrumbungle Shire Council's Development Control Plan does not apply to the Solar Farm. 1. To inform the assessment of the SSD Application: 1. an Environmental Impact Statement was prepared by the First Respondent dated 24 September 2020 (EIS); 2. an Amendment Report was prepared by the First Respondent dated 8 March 2021; and 3. a comprehensive Assessment Report dated 2 September 2021 (Assessment Report) was prepared by officers of the Department of Planning, Industry and Environment. The proposal 1. The Second Respondent granted the SSD Consent, which authorises the construction and operation of the Solar Farm subject to conditions. 2. The SSD Application was publicly exhibited from 20 October 2020 until 17 November 2020, advertised in local newspapers and notified to adjoining landowners. The local council and relevant government agencies were consulted on 14 April 2021. The SSD Application was referred to the Director of Siding Springs Observatory in accordance with the EPA Regulation and Essential Energy and Transport for New South Wales in accordance with State Environmental Planning Policy (Infrastructure) 2007 (repealed and consolidated in State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport & Infrastructure SEPP). Zoning 1. The Solar Farm itself is proposed to be located on approximately 79 hectares of land. The Solar Farm Land is located within the RU1 Primary Production zone under the Warrumbungle Local Environmental Plan 2013 (Warrumbungle LEP). 2. Electricity transmission and ancillary connection infrastructure to connect the Solar Farm to the electivity grid, including a proposed extension to the Existing Substation, will be located on additional land to the south of the Solar Farm Land (Transmission Infrastructure Land). The majority of the Transmission Infrastructure Land is zoned RU1 Primary Production under the Warrumbungle LEP. However, the Existing Substation, and the proposed extension to it, are located on land zoned R1 General Residential under the Warrumbungle LEP. 3. Under the Transport & Infrastructure SEPP, development for the purpose of "electricity generating works" (which relevant includes a solar farm), may be carried out by any person with development consent on any land in a "prescribed rural zone". Land which is zoned RU1 Primary Production is a "prescribed rural zone" for this purpose under the Transport & Infrastructure SEPP. Accordingly, the majority of the Solar Farm is located on land which is zoned so as to make the Solar Farm permissible with consent. 4. Development for the purpose of electricity generating works is prohibited on land zoned R1 General Residential under the Warrumbungle LEP and the Transport & Infrastructure SEPP does not overcome this prohibition. Accordingly, the proposed extension to the Existing Substation is not permissible under the R1 General Residential zoning. However, s 4.38(3) of the EPA Act permits development consent to be granted for SSD despite the development being partly prohibited by an environmental planning instrument. Warrumbungle LEP 1. The Warrumbungle LEP operates to declare: 1. the majority of the Solar Farm Land and part of the Transmission Infrastructure Land to be 'groundwater vulnerable land'; and 2. parts of the Transmission Infrastructure Land to be both 'biodiversity land' and 'watercourse land'. Groundwater vulnerability 1. With regard to lands identified as "Groundwater vulnerable" on the Groundwater Vulnerability Map under the Warrumbungle LEP (Groundwater Vulnerable Lands), cl 6.4(3) of the Warrumbungle LEP provides that a consent authority must, before granting consent, consider: (a) the likelihood of groundwater contamination from the development (including from any on-site storage or disposal of solid or liquid waste and chemicals), (b) any adverse impacts the development may have on groundwater dependent ecosystems, (c) the cumulative impact the development may have on groundwater (including impacts on nearby groundwater extraction for a potable water supply or stock water supply), (d) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. 1. Clause 6.4(4) of the Warrumbungle LEP provides that development consent must not be granted for Groundwater Vulnerable Lands unless the consent authority is satisfied that: (a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or (b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised—the development will be managed to mitigate that impact. 1. The parties submit that the Court can be satisfied on the evidence of those matters for the reasons that follow. 2. The Solar Farm will not have an adverse impact on groundwater, groundwater or groundwater dependent ecosystems. It is likely that the cessation of farming practices on the Solar Farm Land will improve the quality of nearby groundwater. 3. The Solar Farm is located predominantly on Groundwater Vulnerable Lands (as is the majority of the township of Dunedoo). In March 2021, prior to development consent being granted, the Solar Farm proposal was amended to specify that groundwater would no longer be used to supply water to the project and that existing local, licensed water suppliers will supply water to the project. 4. The SSD Consent proposes conditions to reduce the potential for impacts on groundwater. 5. The Amended Proposal will not cause any increase to the potential impacts of the project on groundwater or groundwater dependent ecosystems. Biodiversity 1. With regard to lands identified as "Biodiversity" on the Terrestrial Biodiversity Map under the Warrumbungle LEP (Biodiversity Land), cl 6.3(3) provides that, before granting consent, a consent authority must consider: (a) whether the development is likely to have— (i) any adverse impact on the condition, ecological value and significance of the fauna and flora on the land, and (ii) any adverse impact on the importance of the vegetation on the land to the habitat and survival of native fauna, and (iii) any potential to fragment, disturb or diminish the biodiversity structure, function and composition of the land, and (iv) any adverse impact on the habitat elements providing connectivity on the land, and (b) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. 1. Clause 6.3(4) provides that development consent must not be granted for development on Biodiversity Land unless the consent authority is satisfied that: (a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or (b) if that impact cannot be reasonably avoided by adopting feasible alternatives—the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised—the development will be managed to mitigate that impact. 1. The parties submit that the Court can be satisfied on the evidence of those matters for the reasons that follow. 2. Taking into account approved mitigation measures, the Solar Farm will not have a significant impact on Biodiversity Land, or on the biodiversity values of the locality. The only element of the Solar Farm which is proposed to be located on Biodiversity Land is a minor portion of electricity transmission infrastructure. 3. The Solar Farm has been designed to avoid site constraints such as native vegetation and conditions have been proposed in the SSD Consent to mitigate any potential impacts on Biodiversity Land, including conditions requiring the retirement of biodiversity credits. 4. The Amended Proposal will involve the clearing of an additional 0.76 hectares of vegetation. The vegetation proposed to be cleared is Category 1—exempt land and no revisions to the findings of the Biodiversity Development Assessment Report are required. Riparian land and watercourses 1. With regard to lands identified as "Watercourse" on the Riparian Lands and Watercourses Map under the Warrumbungle LEP and all land within 40 metres of the top of the bank of each watercourse (Watercourse Land), cl 6.5(3) of that instrument provides that a consent authority must, before granting consent, consider: (a) whether or not the development is likely to have any adverse impact on the following— (i) the water quality and flows within the watercourse, (ii) aquatic and riparian species, habitats and ecosystems of the watercourse, (iii) the stability of the bed and banks of the watercourse, (iv) the free passage of fish and other aquatic organisms within or along the watercourse, (v) any future rehabilitation of the watercourse and riparian areas, and (b) whether or not the development is likely to increase water extraction from the watercourse, and (c) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. 1. Clause 6.5(4) provides that development consent must not be granted for development on Watercourse Land unless the consent authority is satisfied that: (a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or (b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised—the development will be managed to mitigate that impact. 1. The parties submit that the Court can be satisfied on the evidence of those matters for the reasons that follow. 2. The Solar Farm will not have an adverse impact on the Watercourse Land and has been designed to largely avoid site constraints such as watercourses. It is not proposed to extract water from the Talbragar River, nor carry out any development on the bed or banks of the Talbragar River. 3. The only element of the Solar Farm which will traverse Watercourse Land is the 66-kilovolt transmission line. The transmission line will span the Talbragar River (being the watercourse concerned), rather than being situated on or beneath it. Chapter 2 of the Transport & Infrastructure SEPP 1. Clause 2.42 of the Transport & Infrastructure SEPP imposes a qualified restriction for the development of certain electricity generating works which are located in a "regional city". 2. There are eight "regional cities" for the purposes of cl 2.42 of the Transport & Infrastructure SEPP – being Albury, Armidale, Bathurst, Dubbo, Griffith, Orange, Tamworth and Wagga Wagga. 3. The Solar Farm Land and the Transmission Infrastructure Land do not fall within the footprint of any of these areas and cl 2.42 accordingly does not apply. Chapter 3 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience & Hazards SEPP) 1. The Resilience & Hazards SEPP contains provisions regulating "hazardous industries", "offensive industries", "potentially offensive industries" and 'potentially hazardous industries". 2. The Solar Farm is not a "hazardous industry", "offensive industry", "potentially offensive industry" or "potentially hazardous industry" within the meaning of the Resilience & Hazards SEPP. 3. In particular, a preliminary screening was carried out in accordance with the Resilience & Hazards SEPP which concluded that the storage and transport of any hazardous materials required for the Solar Farm (including the risks associated with battery storage) would not exceed the relevant risk screening thresholds and the project is not considered to be potentially hazardous. 4. The Amended Proposal does not result in any change in the amounts of hazardous materials stored or transported for the Solar Farm storage and will not cause the Solar Farm to be a "potentially hazardous industry" in the context of Resilience & Hazards SEPP. 5. Accordingly, the Resilience & Hazards SEPP does not apply to the Solar Farm or to the Amended Proposal. Chapter 4 of the Resilience & Hazards SEPP 1. Clause 4.6 of the Resilience & Hazards SEPP requires a consent authority to "not consent to the carrying out of any development on land unless": (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. 1. The Solar Farm Land and Transmission Infrastructure Land: 1. have previously been used for agricultural purposes only; and 2. are not located on any land identified in the record maintained by the NSW Environment Protection Agency under the Contaminated Land Management Act 1997. 1. Accordingly, the parties submit that the Court can be satisfied on the evidence that the land is not contaminated and there is no requirement to further consider whether the land is suitable for the Solar Farm having regard to contamination under cl 4.6(1)(b) and (c) of the Resilience & Hazards SEPP. Chapters 3 and 4 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity & Conservation SEPP) 1. The Koala habitat protection provisions in Chs 3 and 4 of Biodiversity & Conservation SEPP currently operate concurrently. 2. Chapter 3 'Koala habitat protection 2020' of the Biodiversity & Conservation SEPP applies to land in the Warrumbungle Shire Council local government area zoned RU1 Primary Production, which relevantly includes the Solar Farm Land. 3. Clause 3.6 of the Biodiversity & Conservation SEPP requires consent authorities to consider whether the land on which development is proposed to be carried out is "potential koala habitat". If it is not, then no further analysis under the Ch 3 of the Biodiversity & Conservation SEPP is required. 4. Chapter 4 'Koala habitat protection 2021' of the Biodiversity & Conservation SEPP applies to all other land in the Warrumbungle Shire Council local government area, which relevantly includes the Transmission Infrastructure Land. 5. Clauses 4.9 and 4.10 of the Biodiversity & Conservation SEPP require consent authorities to consider the impacts of development on koalas or koala habitat. 6. The Solar Farm Land and Transmission Infrastructure Land are not considered to be koala habitat and no evidence of koalas was detected. Accordingly, no further analysis under Chs 3 and 4 of Biodiversity & Conservation SEPP is required. 7. After careful consideration of the evidence before me, I accept that as the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 8. The Court notes that: 1. The Second Respondent as the relevant consent authority has agreed, under cl 55AA of the EPA Regulation, to the First Respondent amending the application for the development consent being SSD Application 8847 so as to reflect the: 1. updated layout plan the subject of the letter prepared by NGH dated 15 February 2022; and 2. the Landscaping Plan prepared by Moir Landscape Architecture dated 16 February 2022 consisting of sheets LA100-E-LA109-E. 1. The Second Respondent has uploaded the amended application onto the NSW planning portal on 14 March 2022. 2. The First Respondent has filed a copy of the amended application with the Court on 14 March 2022. 1. Accordingly, the Court orders that: 1. The appeal is upheld, in part. 2. State Significant Development Application 8847 for the Dunedoo Solar Farm as described in the documents comprising the "EIS" (as defined in Annexure "A") is determined by the grant of consent subject to the conditions set out in Annexure "A". 3. The appeal is otherwise dismissed. ………………………. S Dixon Senior Commissioner of the Court Annexure A (1560802, pdf) ********** Amendments 22 March 2022 - Correction to typographical error at [9]. 23 March 2022 - Correction to cover sheet. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 March 2022