Image: Woolnorth Renewables
A central Victorian wind opposition group is testing an ambitious legal strategy that, it says, could see lawsuits against public servants and huge compensation claims against the state, if successful.
The Mortlake Community Alliance is suing the 400 megawatt (MW) Mt Fyans wind project and planning minister Sonya Kilkenny in the state’s Supreme Court, alleging errors in the decision that led to a planning permit being issued last year.
The group is promising that if this suit is successful, it will then sue public servants involved in the decisions “such as … present and past DELWP/DEECA/DTP Secretaries,” according to a form letter intended for other wind farm developers, sent to Renew Economy.
If that works, it’ll then open a class action to recover all costs by councils, community groups and individuals who’ve worked on or opposed wind projects in Victoria since 2000.
People working in the industry are calling this wide ambit of lawsuits a scare tactic, designed to create fear within the public service.
But the question will be whether the initial appeal has legal merit: if a project is designed in line with the government’s brolga handbook, then not much consideration may be needed in the actual minister’s decision, one industry insider says.
But the legal challenge itself is raising eyebrows.
“They’re clearly doing this to create a risk to investment in renewables in Victoria,” says Clean Energy Investor Group policy director Nick Aberle.
“The real losers will be Victorians, who’ll have to pay higher prices for electricity if we don’t get new generation online before Yallourn’s closure in 2028.”
Legal intimidation is now common for some renewable energy developers in Victoria.
In addition to facing hostile town hall meetings, some are also regularly receiving legal letters from opposition groups from the earliest days of developing a project, Renew Economy understands.
And while merit appeals were stopped under the Andrews government, alleging errors in planning decisions to put legal barriers in the way of approved projects is still possible.
The lawyer for the Mortlake Community Alliance, Dominica Tannock of DST Legal, has advised a number of wind farm opponents.
She used a similar strategy to the one being rolled out against Mt Fyans against the 1.33 gigawatt (GW) Golden Plains wind farm in the Supreme Court.
Tannock advised opponents in Hawksdale on an attempt to kill a planning permit extension for an eponymous wind farm, which was rejected in multiple courts, but she did have a win for two farmers in 2021 over noise disturbance at the Bald Hills wind farm.
In April, Tannock attended a community meeting about the Squadron Energy’s proposed Ballyrogan wind project, near Ararat, and told the group that noise “a real issue and is a leading cause of litigation and easy to prove,” according to reporting by the West Vic News.
The Mortlake Community Alliance is warning other developers that should it be successful in its legal goals, the future isn’t bright for their projects.
It wants members to send a form letter to developers of other wind projects they don’t like, to “strongly suggest” they stop all work until the court action is finished.
“If Mortlake Community Alliance Inc. is successful in this second court case, we understand a class action, dating back to the year 2000, will be formulated against the Victorian Government for the financial costs, (Millions of dollars spent or lost by Shire Councils, individuals and community groups, assessing permit applications, writing submissions, attending hearings and having legal representation) financial impact, (neighbour loss of free use of their own land within the 1km turbine buffer, reduced land value, loss in productivity, increased insurance premiums, costs associated from having to move away from turbine noise etc) medical and mental health impact, (direct affect from noise and stress both for hosts and neighbours), and loss of enjoyment of claimants land due to the loss of Brolga, Southern Bent wing bats and other species 5km from turbines,” it says.
“For your information, we advise that it is our intention to participate in this class action if or when it happens.
“As directors of the company, we believe you have an obligation to consider this letter before authorising any future financial outlays or investments as part of the xxxxx [sic] add in your wind farm xxxxxx [sic] project.
“And because of a possible future class action involving the xxxxxxxxxx [sic] wind farm, we strongly suggest you halt all work until the matters are fully thrashed out through the courts.”
Brolgas and endangered southern bent-wing bats are at the heart of this latest legal challenge, at the Mt Fyans project.
The lawsuit hinges on the fact that while energy projects can’t be challenged on merit grounds, permits can be taken to court if there is a legal error.
And the Alliance thinks they’ve found one.
It alleges Kilkenny didn’t take into account the Flora and Fauna Guarantee Act of 1988 to protect brolgas and southern bent-wing bats.
As a result, it’s demanding the state halt all decisions on wind farms in the state until the legal challenge is resolved.
The state is continuing to take planning decisions on wind projects regardless of the legal challenge, Renew Economy has confirmed.
A statement from the state’s planning department said it won’t be commenting given the matter is before the courts.
A win would mean planning permits quashed for other wind projects as well, including Willatook and other contentious ones such as HMC Capital’s Kentbruck on the coast past Portland, said Mortlake Community Alliance treasurer Hamish Cumming in a letter to the premier.
“Winning this case will also enable the quashing of the Permits issued for Kentbruck, Willatook, Brewster and other permits that suffered from the same failure to consider the Acts properly,” he wrote.
“Winning this case would also require Hexham, Moreton Hill, Darlington and the Willatook amendment to be stalled and reconsidered before continuing through the State and Federal Planning systems.”
The Mt Fyans wind project is proposed for an up to 11,000 hectare site north of Mortlake, in the central-west region of Victoria.
It’s owned by Woolnorth Renewables, a joint venture between China-owned Shenhua Clean Energy Holdings (75 per cent) and Hydro Tasmania (25 per cent), and received a planning permit in August last year.
It’s not far from the 350 MW Willatook wind project, which was subject to a five month moratorium on construction to accommodate the brolga breeding season, and create larger buffers around turbines to also protect endangered southern bent-wing bats.
Now it wants to cut the number of turbines and make them higher off the ground, ostensibly to better protect those creatures.
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