Australia: Middletons Wins Court Approval Following the Successful Defence of One of NSW's Largest Wind Farms

Energy and resources
Last Updated: 24 May 2010
Article by Tim Webster, Jennifer Mee and Antoinette Migliorino

Middletons acted for Gullen Range Wind Farm (a subsidiary of Epuron) in its successful defence of two Objectors' appeals against the Minister's approval of one of the State's larger wind farms.

Judgment was handed down on 7 May 2010 by the Land and Environment Court approving the construction and operation of Epuron's 73-turbine wind farm on the Gullen Range.


In 2007 Epuron lodged a Development Application for the construction and operation of an 84 turbine wind farm on the Gullen Range (Southern Tablelands region).

The Minister for Planning approved the construction and operation of 73-turbines (subject to a range of conditions) and deleted 11 turbines from the approval due to the proximity of those turbines to an air strip.

A local Landscape Guardian group and an individual landowner commenced Objectors' appeals in the LEC against the Minister's approval of the windfarm.

The Upper Lachlan Shire Council also joined the proceedings seeking to impose a condition in line with the Council's Development Control Plan (DCP) preventing turbines from being sited at least 2km from any landholding created for the purpose of a dwelling.

The appeals were heard together by Senior Commissioner Moore and Commissioner Fakes in December 2009. The hearing ran for 7 days, including two full days on the proposed wind farm site.

The Objectors based their appeal on 3 central issues:

  1. the wind farm would have an unacceptable visual and shadow flicker impact on surrounding landholdings;
  2. the wind farm would have an unacceptable noise impact on surrounding landholdings;
  3. the wind farm would have an unacceptable impact on the value of neighbouring landholdings including vacant landholdings with development potential.

In total, the Court heard evidence from a range of different experts including visual, acoustic, meteorological, aeronautical, planning, shadow flicker, contaminated lands and archaeological experts.

The decision

On 7 May 2010 Senior Commissioner Moore and Commissioner Fakes delivered their Judgment finding:

  • The overall impact of the project on the public and individual landowners was acceptable.
  • In respect of certain properties impacted by the project, the proponent was given the option of either acquiring thirteen properties (five more than required by the Minister's original approval) or alternatively not proceeding with a number of turbines.
  • The Development Control Plan requiring a 2km setback of turbines from any dwelling was not a relevant consideration for this form of development. The setback was deemed "an arbitrary distance" and the Court went so far as concluding that "there is no basis upon which we could have regard to the DCP within the statutory framework".
  • Numerous demands by surrounding landowners seeking monetary compensation for alleged devaluation of their properties were unequivocally rejected by the Court (the Chief Judge's views in Taralga Landscape Guardians v Minister for Planning and RES Southern Cross [2007] were adopted).
  • Contrary to the requirements of the DCP, the Court clarified the basis upon which community contributions should be calculated in this case – that is, based upon the number of turbines constructed rather than the local Council's preference for a contribution based upon generation output capacity.

In relation to the benefits of wind energy projects in general the Court held:

"The material provided by the proponents concerning the economic benefits of the project coupled with the social desirability of the encouragement of renewable energy and the increasing volume of scientific evidence from bodies such as the International Panel on Climate Change, combine to provide a powerful degree of certainty about the benefits of this proposal, in particular, in its local context, on a smaller scale, but, also, on a broader societal front."

The parties will now formulate conditions of consent based upon the Judgment. The proceedings are next before the Court on 27 May 2010.

Boardroom Radio

Please listen to a Boardroom Radio interview with Middletons Senior Associate, Antoinette Migliorino, who acted on the Gullen Range Wind Farm case.

To listen to the radio interview, please click here

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