Terrain Solar Pty Ltd v Wagga Wagga City Council [2019] NSWLEC 1003

Land and Environment Court New South Wales

Medium Neutral Citation: Terrain Solar Pty Ltd v Wagga Wagga City Council [2019] NSWLEC 1003 Hearing dates: Conciliation conference on 8 January 2019 Date of orders: 09 January 2019 Decision date: 09 January 2019 Jurisdiction: Class 1 Before: Chilcott C Decision: See orders at [9] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Terrain Solar Pty Ltd (Applicant) Wagga Wagga City Council (First Respondent) Southern Regional Planning Panel (Second Respondent) Representation: Counsel: A Stafford (Applicant) J Reid (Second Respondent)

Solicitors: Beatty Legal (Applicant) Lindsay Taylor Lawyers (First Respondent) Department of Planning & Environment (Second Respondent) File Number(s): 2018/318526 Publication restriction: No

Judgment 1. COMMISSIONER: Terrain Solar Pty Ltd P/L (the Applicant) has appealed the decision of the Southern Regional Planning Panel Council (the Second Respondent), under delegation from Wagga Wagga City Council (the First Respondent), to refuse its development application (No. 2017STH034 - Wagga - DA17/0679) for construction of solar farm at 157 Windmill Lane, at Bomen (the Subject Site). 2. The appeal comes to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), and falls within Class 1 of the Court's jurisdiction. These proceedings are determined pursuant to the provisions of s 4.16 of the EPA Act. 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 8 January 2019, and I have presided over the conciliation conference. 4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting consent to the development application, subject to conditions. 5. 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. 6. There are no jurisdictional prerequisites that must be satisfied before this function can be exercised. 7. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 8. 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. 9. The Court orders: 1. Leave is granted to the Applicant to rely on the following amended plans, in relation to which the parties agree that the amendments are minor for the purposes of s 8.15(3) of the Environmental Planning and Assessment Act 1979, given that the amendments involve a reduction in the number and footprint of solar photo voltaic (PV) modules and reconfiguration of landscaping: 1. EV01 to EV10, Issue D dated 4 January 2019 prepared by Geolyse Pty Ltd; 2. Figure 2-1: Landscape Plan, Revision 5 dated 7 January 2019 prepared by IRIS Visual Planning + Design; 3. Figure 2-2: Landscape Sections, Revision 3 dated 4 December 2018 prepared by IRIS Visual Planning + Design; 4. Figures 2-2a and 2-2b: Landscape Sections, Revision 3 dated 7 January 2019 prepared by IRIS Visual Planning + Design; 5. Figure 2-3: Plant Lists & Landscape Notes, Revision 4 dated 6 December 2018 prepared by IRIS Visual Planning + Design; 6. Figure 2-4: Plant Set-Out Matrix, Revision 1 dated 4 December 2018 prepared by IRIS Visual Planning + Design; and 7. Figure 2-5: Vegetation Set-Out Plan, Revision 2 dated 7 January 2019 prepared by IRIS Visual Planning + Design. 1. The appeal is upheld. 2. Development application No. 2017STH034 - Wagga - DA17/0679 for electricity generation works comprising a 30 MW solar farm and associated structures, works and infrastructure in respect of Lot 15 DP 1108978, known as 157 Windmill Road, Bomen, and Lot 1 DP 1115229 is approved in accordance with the conditions set out in Annexure A.