As renewable energy expands rapidly in Victoria, much has been said about the competing interests of renewable energy providers and surrounding landowners.
In The People of the Small Town of Hawkesdale Incorporated v Minister for Planning [2021] VSC 510, the Supreme Court of Victoria dismissed an application for judicial review of the Minister for Planning’s decision to extend a planning permit, on the basis that the community group had no legal standing.
The decision also considered extension powers in relation to planning permits, and in this context is important for owners and developers of renewable energy projects in Victoria.
Background
Planning Permit No. 20060221-A (Permit) was issued by the Minister for Planning (Minister) on 21 August 2008 for the use and development of over 50 parcels of land near the small rural town of Hawkesdale for the purpose of a wind farm, and for the removal of native vegetation. On 2 November 2020 the Minister approved the fifth extension of the Permit’s expiry date (Extension Decision).
On 13 January 2021 (ie. after the Extension Decision was made) a number of Hawkesdale residents formed an Incorporated Association (Association) to oppose the construction of the wind farm and to represent the people of Hawkesdale. The Association sought orders quashing the Extension Decision, contending that it was invalid based on an error of law and the Minister acting outside his scope of powers.
In response, the Minister and the wind farm proponent contended that the Association did not have legal standing to bring the proceedings.
Legal Standing
The Association argued it had a ‘special interest’ in the subject matter of the proceedings, namely in its members avoiding the real and substantial practical detriments arising from the Extension Decision. The potential detriments included visual impact, generated noise, reduction and land values, and the purported effect on Hawkesdale’s ongoing viability as a rural town.
The Court found the Association was unable to seek judicial review of the exercise of public power. The Association failed to demonstrate a special interest to the subject matter beyond a ‘mere intellectual or emotional concern’ that was distinct from the standing of its members (ACF v Commonwealth (1980) 146 CLR 493, 530-1 per Gibbs J). Importantly, the Court noted that third party rights are lessened after the decision in made to grant a planning permit, especially in relation to an extension of time application.
The Court also noted that the Association may have established legal standing had it existed at the time of the Extension Decision and if it had participated in earlier processes associated with the Permit, including the earlier amendment and the Panel process. However the Court found that “the Association did not exist then, even as an unincorporated association, and so was unable to rely on its past activities to show some commitment that distinguished it from the public at large”.
Other Issues
Section 69(2) of the Planning and Environment Act 1987 required an application for an extension of the Permit to be made by the owner or occupier of the land. However the application was made by the wind farm proponent, not the landowners. The Court therefore held that the power to extend the Permit pursuant to s 69(2) was not enlivened.
Notwithstanding the absence of power under s 69(2) of the Act, the Court held that Condition 64 of the Permit vested the Minister with the relevant power to extend the Permit. In this circumstance, Condition 64 specifically allowed the Minister to extend the timeframes for commencement and completion under the Permit.
The Act has since been amended to allow the request to be made by any person with the written consent of the landowner. In relation to renewable energy facilities, where a number of landowners are typically involved, proponents should be aware that they will require the consent of all landowners in order to request an extension of a permit pursuant to s 69(2) of the Act. Not all permits contain identical expiry conditions, and it would appear that there are likely to be circumstances where a proponent cannot rely on a permit condition to avoid the requirement to obtain the consent of all landowners under s 69(2).
How can we help?
HWL Ebsworth has advised in over 70 renewable energy projects in Australia, New Zealand and overseas. This includes in respect of planning, property, environmental, project management, procurement, construction, operations & maintenance, grid connection, regulatory, financing and offtake matters.
The legal landscape continues to change for renewable energy facilities in Victoria. This is not only on account of Australia’s transformation to clean energy and a carbon neutral environment but in response to policy and legal shifts arising in projects as they are developed and completed. It is important for proponents, responsible authorities and other stakeholders to be aware of the manner in which such projects are being resisted, and the vulnerabilities which might arise in the planning and approvals process.
If you wish to discuss any of the above please contact us.
This article was written by James Lofting, Partner and Alex Gelber, Special Counsel.
