Recent VCAT decision applies new requirements for renewable energy facilities to protect declared irrigation districts

28 February 2022

Green Gold Energy Pty Ltd v Minister for Planning [2022] VCAT 118

Background

The matter concerned an application brought by Green Gold Energy Pty Ltd under section 79 of the Planning and Environment Act 1987 (Act) to review the Minister for Planning’s (Minister’s) failure to grant a permit within the prescribed time for a Renewable Energy Facility (Solar Energy Facility) at Naring Hall Road, Numurkah.

Key issues

The key issue related to Amendment VC161, which introduces new requirements for renewable energy facilities (other than windfarm facilities), is the protection of declared irrigation districts.1 In particular, clause 14.02-3S introduces policies for the protection of declared irrigation districts because they are considered areas that are major state assets supporting the agricultural industry in Victoria.2

The Minister argued that he would not support the application for the Solar Energy Facility because it would negatively impact on the Goulburn Murray Irrigation District (GMID), contrary to clause 14.02-3S,3 and the Moira Planning Scheme.4

The Applicant argued that the Solar Energy Facility would not jeopardise the efficiency of the GMID on the basis that the use of the site as a Solar Energy Facility:

  • would not permanently remove the land from agricultural use;
  • would not compromise the supply of water to downstream properties; and
  • would not jeopardise the future viability of the irrigation district and is a net benefit for the community.5

Outcome

When balancing the objectives for renewable energy production against the protection of productive agricultural land in accordance with the criteria outlined in amendment VC161,6 the Tribunal ruled in favour of the Solar Energy Facility. In coming to this conclusion, the Tribunal found that:

  • the Solar Energy Facility would not remove the land from agricultural viability in the long term within the Subject Land and broader irrigation district;
  • given the small size of the proposal, the proposal would not inhibit the water corporation from making adjustments to the irrigation district; and
  • a new supply channel would not hinder water allocations for other farmers nor would it limit irrigation efficiency in the future.7

This decision provides guidance in interpreting planning scheme amendment VC161 and for all renewable energy applications within declared irrigation districts.

This article was written by James Lofting, Partner and Grace Bramwell, Solicitor.


1 Green Gold Energy Pty Ltd v Minister for Planning [2022] VCAT 118, [62].
2 Ibid, [97].
3 Moira Planning Scheme, cl. 14.02-3S.
4 Cl. 53.13.
5 Green Gold Energy Pty Ltd v Minister for Planning [2022] VCAT 118, [55].
6 Ibid, [247].
7 Ibid, [131].

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