King & anor v Minister for Planning; Parkesbourne-Mummel Landscape Guardians Inc v Minister for Planning; Gullen Range Wind Farm Pty Limited v Minister for Planning [2010] NSWLEC 1102

King & anor v Minister for Planning; Parkesbourne-Mummel Landscape Guardians Inc v Minister for Planning; Gullen Range Wind Farm Pty Limited v Minister for Planning [2010] NSWLEC 1102

The wind farm did not have public-domain or cumulative impacts sufficient to justify refusal, but individual property assessments showed unacceptable visual, shadow flicker and in some cases possible noise impacts on specified properties and dwelling-entitlement lots. Approval could stand only with amended conditions requiring the proponent, within a defined period and before relevant construction, either to acquire those properties or delete the identified impacting turbines, together with amendments to noise, Crown road, landscaping and community enhancement conditions.

Jurisdiction
Australia
Judgment Date
07 May 2010
Procedural Posture
Merit Appeals Concerning Part 3 a Project Approval for the Gullen Range Wind Farm / Judgment and Directions on Modification of Approval Conditions
Outcome
Each appeal was to be upheld to some extent; the Minister's project approval was not refused but its conditions were to be modified consistently with the judgment, with further directions for settling the wording of conditions.
Legal Topics
['wind Farm Development Approval' 'visual Impact' 'noise Impact' 'shadow Flicker' 'land Acquisition Conditions' 'development Control Plans' 'community Enhancement Contributions' 'subdivision Potential' 'construction Impacts on Crown Road' 'contamination and Aboriginal Cultural Heritage']
['environmental Law' 'planning and Development Law' 'land and Environment Court Merit Appeals'] ['wind Farm Development Approval' 'visual Impact' 'noise Impact' 'shadow Flicker' 'land Acquisition Conditions' 'development Control Plans' 'community Enhancement Contributions' 'subdivision Potential' 'construction Impacts on Crown Road' 'contamination and Aboriginal Cultural Heritage']

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Procedural Posture

Merit Appeals Concerning Part 3 a Project Approval for the Gullen Range Wind Farm / Judgment and Directions on Modification of Approval Conditions

Legal Issues

  1. 1 ['Whether the approved wind farm should be refused or modified because of visual, noise, shadow flicker or cumulative impacts on the public domain and nearby properties.' 'Whether the Upper Lachlan Shire Council Development Control Plan – Wind Power Generation 2005 numerical setback controls should be applied or given weight.' 'Whether claims for compensation for blight, loss of property value or loss of subdivision potential could be considered.' 'Whether conditions should require acquisition of particular properties or deletion of turbines causing unacceptable impacts.' 'Whether construction and cabling along an unmade Crown road should be permitted subject to contamination, Aboriginal cultural heritage and platypus habitat controls.' 'Whether noise assessment methodology and noise-related consent conditions required alteration.' 'Whether landscaping, turbine relocation, road sealing and community enhancement contribution conditions should be modified.']

Ratio Decidendi

The wind farm did not have public-domain or cumulative impacts sufficient to justify refusal, but individual property assessments showed unacceptable visual, shadow flicker and in some cases possible noise impacts on specified properties and dwelling-entitlement lots. Approval could stand only with amended conditions requiring the proponent, within a defined period and before relevant construction, either to acquire those properties or delete the identified impacting turbines, together with amendments to noise, Crown road, landscaping and community enhancement conditions.

Court Disposition

Each appeal was to be upheld to some extent; the Minister's project approval was not refused but its conditions were to be modified consistently with the judgment, with further directions for settling the wording of conditions.

Orders

  • ['The appeal is upheld.' 'The conditions in Schedule 2 to the project approval by the Minister for Planning dated 26 June 2009 for Application No: 07_0118 are modified so that the project is subject to conditions in Annexure A.' 'The exhibits are returned.' 'The matter was set down for further hearing on the...