Victorian wind farm appeal rejected by Supreme Court: report

Victoria’s Supreme Court has dismissed an appeal by the developer of The Sisters wind farm, upholding the local council’s rejection of the proposed 12-turbine wind farm on the grounds of the noise impact on the surrounding community.

The Warrnambool Standard reported today that the ill-fated project – slated for north-west of Terang in Victoria’s Western District – was originally recommended for planning approval when it first came before the Moyne Shire Council in July 2009, but was then unanimously rejected in a vote moved by Councillor Colin Ryan and seconded by then-Councillor (and now, Mayor) Jim Doukas.

That decision was subsequently upheld at two separate Victorian Civil and Administrative Tribunal (VCAT) hearings – the first of which ruled that the project should be rejected on the grounds of noise alone, based on a new 2010 New Zealand standard of assessment, rather than the more lenient 1998 standard that was referenced in the shire’s planning scheme.

(In this first hearing, VCAT also commented on the social division the wind farm proposal had caused. “We feel that whatever our decision, the damage has already been done and that relationships within the community may never be the same again,” it said.)

The Standard reports that Sisters Wind Farm – a subsidiary of Wind Farm Developments – then took the case to the Supreme Court, which found the tribunal had made an error of law and should have considered the 1998 standard. The VCAT decision was set aside and a new hearing ordered on the issue of noise impacts.

But before the next VCAT case could be heard, the current state government introduced major reforms to wind farm planning controls, replacing the 1998 noise standard with the 2010 standard, and giving land owners the right to veto proposed wind farms if they came within two kilometres of their homes.

Sisters Wind appealed to the Supreme Court to overrule VCAT’s decision to base its judgement on the updated planning scheme, but Justice Karin Emerton dismissed the case last Friday afternoon, saying the tribunal’s declaration was made correctly.

“This result may seem harsh for the appellant, which has been deprived of the opportunity to have its application for a planning permit determined by reference to the more lenient 1998 standard through an error by the tribunal in its first decision that was apparently brought about by incorrect submissions as to the applicable standard made by council,” Justice Emerton said.

“However, the result is a product of the statutory framework for the review of planning decisions by the tribunal or, as the council puts it, the ‘building blocks’ of planning law, the tribunal’s review jurisdiction and judicial review of administrative action in Victoria.”

Mayor Doukas welcomed the Supreme Court’s ruling, echoing the recent ant-wind sentiments of South Australian independent Senator Nick Xenophon in calling the decision a “win for commonsense.” Doukas also told The Standard on Sunday that for the wind farm “to get off the ground now, they’d have to apply for a new permit under the new (state) guidelines and it would never be approved.”

Another Moyne Shire councillor, Bernie Harris, said the “shit planning issue” should never have got anywhere in the first place.