Land and Environment Court New South Wales Medium Neutral Citation: Bango Wind Farm Pty Ltd v NSW Minister for Planning [2019] NSWLEC 1254 Hearing dates: Conciliation conference on 31 May 2019 Date of orders: 07 June 2019 Decision date: 07 June 2019 Jurisdiction: Class 1 Before: Smithson C Decision: The Court orders: (1) Leave is granted to amend the modification application in accordance with the Amended Class 1 Application. (2) The appeal is upheld. (3) Development consent for the Bango Wind Farm, development application number SSD 6686, is modified to approve the subdivision of land and amend the description of the Land to include two additional parcels of land in accordance with the modified conditions in Annexure "A" and the documents comprising the "EIS" as set out in the Index in Annexure "B". Catchwords: MODIFICATION APPLICATION – wind farm – conciliation conference – agreement between the parties – orders Legislation Cited: Boorowa Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulations 2000 Land and Environment Court Act 1979 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy (State and Regional Development) 2011 Yass Valley Local Environmental Plan 2013 Cases Cited: Renwood v Independent Planning Commission [2018] NSWLEC 1632 Category: Principal judgment Parties: Bango Wind Farm Pty Ltd (Applicant) NSW Minister for Planning (Respondent) Representation: Counsel: A Hemmings (Applicant) Solicitors: Norton Rose Fullbright (Applicant) T Walls, Department of Planning and Environment (Respondent) File Number(s): 2019/149003 Publication restriction: No Judgment 1. COMMISSIONER: In March 2011, Bango Wind Farm Pty Ltd (the applicant) applied to the Department of Planning and Environment (the DPE) for development consent to construct, operate, maintain and then decommission up to 122 wind turbines and associated ancillary infrastructure, known as the proposed Bango Wind Farm (the project). The project site is situated in the Southern Tablelands between Yass and Boorowa. 2. The project was classified as State significant development pursuant to s 4.36 of the Environmental Planning and Assessment Act 1979 (EPA Act), being electricity generating works which meet the criteria set out in Schedule 1 to State Environmental Planning Policy (State and Regional Development) 2011. 3. The application was referenced by the DPE as State Significant Development Application Number 6686 (the development application). The development application was accompanied by an Environmental Impact Statement (EIS) as is required for State significant development. 4. Following an amendment to the development application, the project was reduced to up to 75 wind turbines and associated ancillary infrastructure. 5. On 23 February 2018, the DPE referred the development application to the Independent Planning Commission (IPC) for determination as the DPE had received more than 25 objections to the application from the public. On 1 May 2018, the IPC granted consent to the development application for up to 71 wind turbines and associated ancillary infrastructure including one substation, located at one of three proposed locations, and a grid connection. 6. On 25 May 2018, a third party appeal was made to the Court by several landowners challenging the granting of the IPC consent. On 6 December 2018, an agreement was reached during a conciliation conference ordered pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). The Court made orders in accordance with that agreement which modified the consent: Renwood v Independent Planning Commission [2018] NSWLEC 1632. 7. The amended proposal the subject of the Court consent included the construction, operation and decommissioning of up to 46 wind turbines, associated infrastructure including on-site electrical infrastructure (including a substation at one of three locations), and a grid connection. 8. On 13 May 2019, the applicant filed a modification application with the Court pursuant to s 4.55(8) of the EPA Act to modify the Court consent to: 1. subdivide the project to allow for the creation of one freehold lot to allow for the construction of infrastructure described by the EIS as a 'collector substation' (the substation) with an approximate area of 150 metres by 150 metres; and 2. subdivide the project to allow for the registration of long term leases over the relevant areas of the project site for the wind turbines and permanent operations facility (the modification application). 1. The applicant subsequently sought to amend the modification application to add two lots to the project site to accommodate the 'oversail' of three wind turbine blades onto these two lots (the oversail lots). 2. The applicant advised that TransGrid would obtain freehold title to the collector substation lot through transfer, dedication or acquisition and that it had entered into agreements with each of the registered proprietors that provide options for the applicant to lease or license parts of the lots listed in Appendix 1 of the consent for the purpose of financing, construction, operation and decommissioning of the project. The leases would be for a duration in excess of 5 years. 3. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 31 May 2019. I 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 in line with the modifications sought by the applicant. 5. The Court was provided with a copy of the existing consent, marked up to indicate how it is to be modified. This includes amending the definition of the EIS to include the changes arising from the modification application and a letter from the applicant dated May 30, 2019 which summarises the proposed modification and its impacts. This letter, and the modification application itself, were also added to the index of material comprising the EIS at Annexure B. 6. The consent is also to be modified to add new conditions 20 to 23 as shown in Annexure A. These relate to the proposed subdivisions the subject of the modification application. Included is a condition confirming the proposed subdivision, other than for the collector substation lot, is not for freehold title but only for registering leases (condition 21), and these leases expire once the site is rehabilitated in accordance with the consent. 7. The Court was advised that there is no longer a requirement for a separate switching station lot, as was referenced in the consent, as the switching station equipment can and will be contained within the same lot as the collector substation. Replacement maps showing this form appendices to the proposed modified consent at Annexure A. 8. Finally, the two oversail lots have been added to the schedule of land listed in Appendix 1, and there is a new Appendix 9 showing layout options for the collector substation and a new Appendix 10 showing the indicative site layout for the lease areas. 9. 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. 10. The parties advised the Court that there are no constraints on the Court granting consent to the modification application. I was taken through the pre-conditions to granting the consent. I was assisted by the fact that a copy of the assessment report for the modification application prepared by the DPE titled "Bango Wind Farm (Mod 1) Assessment Report" and dated May 2019 was submitted with the agreement and provided the background to the project and to the modification application (the Assessment Report). 11. The DPE advised that they had reviewed the scope of the modification application and considered that what is proposed is of minimal environmental impact and it can therefore be considered under s 4.55(1A) of the EPA Act. 12. The DPE also supplied a statement advising that the development, as proposed to be modified, is substantially the same development as has been approved, as is required by cl 115 of the Environmental Planning and Assessment Regulations 2000 (Regulations). 13. The DPE also advised that the notification requirements under State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) apply as the modification is related to connection to transmission infrastructure. In this regard, the DPE sought comment from TransGrid who advised that: 1. it is aware of and has been in discussions with the applicant in relation to the modification application and the project; 2. it required freehold title for the parcel of land on which the relevant substation and switching station will be built; and 3. negotiations between the applicant and TransGrid were well advanced and that is expected connection agreements to be executed in 2019. 1. Although the Regulations do not require notification of any persons of the modification application, the DPE considered this and concluded that notification to parties other than Transgrid was unnecessary due to the lack of impacts. 2. In this regard: 1. the project is a permissible use as energy generation works under the Infrastructure SEPP; 2. the subdivided land would not be used for residential purposes; 3. the subdivided land would be the same use (as energy generation works) allowed under the existing consent; 4. the subdivision for the substation is necessary for the ongoing operation of the wind farm as it is required to transfer substations to TransGrid; 5. the subdivision for the purpose of long term leases is necessary for the operation of the wind farm as it is required to register the leases with the Office of the Registrar-General; 6. there are no land use conflicts between the subdivided land and the use of surrounding land in the locality (including agricultural land) noting that the wind farm and associated substation have been assessed in detail and the existing consent would effectively manage and minimise any residual impacts associated with the project; and 7. the proposed subdivisions are consistent with the natural and physical constraints of the land. 1. The DPE advised the Court that, as the modifications sought would not result in any material environmental impacts beyond those that were previously assessed and approved, the DPE accepted that the proposed subdivisions are in the public interest, as they would allow the wind farm to be developed and consequently provide net benefits to the National Electricity Market which can be realised in a timely manner. 2. Further, the additional lots added to the project boundary accommodate the approved wind turbines that oversail these lots and the relevant landowners for these two lots agreed to the proposed impacts. As such, the DPE supported the modification application and the proposed amendments to the conditions of consent proposed by the applicant. 3. I was shown copies of the certificates of title confirming the Title description of the oversail lots, evidence of owners' consent being provided to include these lots into the project area the subject of the modification application, and a plan confirming that the oversail lots were originally part of the broader project site the subject of the EIS for the project. Further, the existing consent allows the 'micro-siting' (being the more specific siting) of the wind turbines once detailed analysis of siting is undertaken. This micro-siting has resulted in the oversailing of the lots by three of the approved turbines therefore requiring the oversail lots to be included in the project site description in the consent. 4. I am satisfied that the proposed modifications to the existing consent will not result in any additional environmental impacts and are therefore of minor environmental impact within the meaning of that term under s 4.55(1A) of the EPA Act and having regard to the requirements of s 4.15 of the Act. They are largely procedural, commercial or technical requirements arising from more detailed design and implementation of the project. The modifications are therefore in the public interest and have had regard to the submission on the modification application made by TransGrid. 5. I am also satisfied, as I am required to be under s 4.55(3) of the EPA Act that Yass and Hilltops Valley Councils, in whose area the project is proposed, were consulted and no objections were received from either Council. 6. Nor do any issues arise under subs 4.15(1)(a) of the EPA Act in terms of compliance with the relevant local environmental planning instruments being the Boorowa Local Environmental Plan 2012 and the Yass Valley Local Environmental Plan 2013 (the LEPs). 7. In this regard, the Assessment Report states that the project site is zoned RU1 – Primary Production under both LEPs. The proposed size of the collector substation lot is less than the minimum lot size required in both LEPs at cl 4.1. However, development standards in the LEPs only apply to the granting of development consent, not to the modification of a development consent: s 4.55(4) of the EPA Act as follows: The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part... 1. This issue was also addressed in the Assessment Report where the DPE noted that, given the lot is proposed solely for infrastructure associated with the project and is as a result of TransGrid requiring freehold title to this infrastructure, the subdivision should be supported. As the lease areas are not freehold subdivision and no lots will be therefore be created, per se, the minimum lot size standard in the LEPs would not apply in any event to that aspect of the modification application. 2. As the pre-conditions have been met, I am satisfied that the parties' decision is a decision that the Court can make in the proper exercise of its functions. I am therefore required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 3. The Court orders that: 1. Leave is granted to amend the modification application in accordance with the Amended Class 1 Application. 2. The appeal is upheld. 3. Development consent for the Bango Wind Farm, development application number SSD 6686, is modified to approve the subdivision of land and amend the description of the Land to include two additional parcels of land in accordance with the modified conditions in Annexure "A" and the documents comprising the "EIS" as set out in the Index in Annexure "B". …………………………….. Jenny Smithson Commissioner of the Court Annexure A (2.63 MB) Annexure B (158 KB) ********** 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: 07 June 2019