Supreme Court dismisses “David and Goliath” challenge to wind farm permit

The Victorian Supreme court has dismissed a legal challenge launched by a group of local residents angry about a proposed wind farm near the town of Hawkesdale, ruling that there was no legal basis to overturn an extension to planning approvals.

The group of Hawkesdale residents launched the legal challenge to the wind farm’s planning permit, citing concerns about the proximity of the wind farm to the township and the impact it may have on local residents.

The Hawkesdale wind farm is being developed by GPG Australia, and proposes to construct up to 26 wind turbines, delivering a total output of around 97MW, with a maximum height of around 180 metres.

The project had first received planning approval from the Victorian state government in 2008. However, as works have yet to commence, these approvals have been extended and amended on numerous occasions.

A planning permit for the wind farm had expired in August last year but was subsequently extended by the Victorian state planning minister, Richard Wynne, to provide GPG Australia until August 2023 to complete the project.

The group of residents, acting together as “The People of the Small Town of Hawkesdale Incorporated,” sought to challenge the latest extension to the planning permit, arguing that the planning minister did not have the power to do so under the Planning Act.

“With this monster wind farm as our neighbour, people will leave, the school will lose numbers, the soul of our community will be destroyed, it will be the death of our town,” the group wrote on a GoFundMe page used to raise funds for the legal challenge.

“We have sought legal advice on the validity of the permit, and we believe we have a strong case … actually, we believe we have a very strong case to stop this wind farm. This is a David and Goliath battle, but we are determined to win the fight.”

However, in a judgement delivered on Friday, Victorian Supreme Court justice Melinda Richards found that Wynne did, in fact, have the power to extend the planning permit, using powers that were granted to the minister in the terms of the permit itself.

Crucially, the court also ruled that the group of residents, acting through an incorporated association created specifically to launch the legal challenge, did not have standing to bring the case.

Establishing legal standing is a common requirement for those launching legal proceedings and requires litigants to demonstrate that they have a sufficient connection, or “special interest,” in the matter.

The court concluded that the group had failed to demonstrate that the incorporated association – as opposed to the residents themselves – had a demonstrated special interest in the wind farm development and the minister’s permit decisions that entitled it to launch the legal challenge.

“I would not have been concerned that the Association was not incorporated at the time of the Extension Decision, if it had a prior existence as an unincorporated association,” Justice Melinda Richards wrote.

“However, the evidence revealed no such history. The plain fact is that the members of the Association came together ‘as a group to invoke the court’s protection to challenge the Minister’s Decision and share legal costs’. In other words, the Association was formed in order to be a vehicle for this litigation.”

“I conclude that the Association does not have standing to seek judicial review of the Extension Decision. The objects of the Association and the interests of at least some of its members in opposing the construction of the wind farm do not amount to a special interest on the part of the Association in the subject matter of the proceeding,” Justice Richards said.

It is understood that the group of Hawkesdale residents had spent upwards of $100,000 on the unsuccessful legal challenge (the GoFundMe page set up by the Hawkesdale community group raised only $1,542), and could be required to pay the legal costs of both the Victorian government and GPG Australia in defending the challenge. The Supreme Court will make a ruling on legal costs at a later date.

Australian Energy Infrastructure Commissioner Andrew Dyer has encouraged community groups to consider no-cost avenues for raising concerns about developments, including by approaching the commission directly, or bodies that include Victorian Ombudsman and the Environmental Protection Authority that have the potential to resolve issues without amassing substantial legal costs.