Deep-pocketed neighbour tries to sink giant Valley of Winds project with court appeal

A deep-pocketed neighbour of the proposed Valley of the Winds wind project in New South Wales (NSW) is rallying fellow objectors to his cause, with lawyers opening the door to join a court appeal against the project.  

Developer Acen Australia won final planning approval earlier this month for the 943 megawatt (MW) project in the Central Western Orana (CWO) renewable energy zone (REZ), and a 320 MW, two-hour big battery.

The project is notable because it is also the biggest to be awarded an underwriting agreement under the federal government’s Capacity Investment Scheme, its flagship policy to hit its target of 82 per cent renewables by 2030.

However, the project now faces a legal battle with Marshall Baillieu – cousin to former Victorian premier Ted – lodging an appeal against the Independent Planning Commission (IPC) and Acen Australia in the Land and Environment Court of NSW.

Baillieu did not respond to requests for comment on what grounds the appeal is based on.

In July, Baillieu’s lawyers called for other opponents of the wind farm to join the legal suit, saying that under planning legislation anyone who made a submission against the project and who doesn’t like the final outcome is allowed to join the appeal.

Acen Australia says it’s aware that a merits appeal has been lodged, but said that given the matter is before the court it can’t comment right now.

Baillieu owns a neighbouring property, the Tongy Station, which he bought in 2015 for under $20 million from a family member. It lies to the east of the project. He does not live there.

The partner and CEO of Rothschild & Co Australia outlined his concerns to one of the IPC’s public hearings, saying the 250m-tall turbines would overshadow his property and potentially force him to reduce agricultural activities. He also said they may interfere with the Tongy airstrip, and turbine noise would be louder than Acen’s studios said it would be.

Baillieu also claimed he still plans to replace an old homestead that was burned down during bushfires in 2017, and lies within 2km of Acen’s proposed turbines. 

New rules, however, state that from 12 November 2024, development applications for new dwellings submitted after a proposed wind project has received its state environmental assessment requirements (SEARs) do not require assessment by planning authorities.

That change was brought in after so-called “phantom dwellings” threatened to derail another project, Engie’s Hills of Gold wind farm which is also subject to a court challenge against its hard-won planning approval.

The Valley of the Winds project was sent to the IPC after attracting more than 50 public objections during the state planning assessment process. 

The final planning arbiter approved the wind farm, with conditions including requiring Acen to prepare a detailed decommissioning and rehabilitation plan, an aviation management plan to ensure aerial firefighting and agricultural activities can continue unimpeded, on-going community consultation, and comply with approved traffic routes.

It found the noise would be below the 35dB minimum for all but one house, but the worst case scenario for that property was within its tolerance.

New tactics?

The post-IPC appeal tactic may be a new form of attack to sink projects by making them too expensive over time.

The Tamworth regional council is persisting with its appeal against Engie’s project, despite being left at the altar by the entity which started the lawsuit and facing community anger over the cost.

The Hills of Gold Preservation Inc started the court action but skipped out just after the council joined at the end of March. Ratepayers are incensed they’ll be funding the suit, given the council jacked up fees significantly last year. 

The council declined to comment on the appeal, citing the ongoing case, but confirmed to Renew Economy it continues to oppose the project.

The court action means work on the Hills of Gold wind farm is at a standstill. 

With approvals processes taking years, these days the economics of wind projects are fundamentally different from when developers start working on them to the day approvals are secured.  

Acen Australia has been working on the Valley of the Winds project since at least 2018, according to the original scoping report, while Engie began investigating the Hills of Gold site as early as 2017.

In that time building costs skyrocketed during the COVID19 pandemic which started in 2020, forcing developers to use bigger turbines for projects that deliver more megawatts to stay financially viable. 

Since then “the costs are not going backwards for us in wind,” said Engie’s Scott de Keizer during a panel at a wind conference last week. 

Both projects now in front of the land and environment court have already shrunk from their original sizes, with Acen reducing turbine numbers from 175 to 131, and Engie from 97 to 47.

This article has been updated to reflect that the Marshall Baillieu undertaking the appeal is the partner and CEO of Rothschild & Co Australia, not his 88 year old relative of the same name.

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