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
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:
the wind farm would have an unacceptable visual and shadow
flicker impact on surrounding landholdings;
the wind farm would have an unacceptable noise impact on
the wind farm would have an unacceptable impact on the value of
neighbouring landholdings including vacant landholdings with
In total, the Court heard evidence from a range of different
experts including visual, acoustic, meteorological, aeronautical,
planning, shadow flicker, contaminated lands and archaeological
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
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  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
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
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