Hills of Gold Preservation Incorporated v Independent Planning Commission & Anor

Cases Cited: Avalon Beach Property Pty Ltd v Northern Beaches Council [2017] NSWLEC 130
Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205
Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313
Hrsto v Burwood Council [2024] NSWLEC 1261
Garling v Northern Beaches Council [2022] NSWLEC 102
Mirvac Projects Pty Limited v Ku-ring-gai Council [2007] 151 LGERA 394
Morrison Design Partnership Pty Ltd v North Sydney Municipal Council and Director-General of the Department of Planning (2007) 159 LGERA 361

Category: Principal judgment

Parties: Hills of Gold Preservation Incorporated (Applicant)
Tamworth Regional Council (Applicants on the motion)
Independent Planning Commission (First Respondent)
Hills of Gold Pty Ltd (Second Respondent)

Representation: Counsel:
L Mulligan (Solicitor) (Applicant)
J Walker (Solicitor) (Applicants on the motion)
G Green (Solicitor) (First Respondent)
M Staunton (Counsel) (Second Respondent)
Solicitors:
Lindsay Taylor Lawyers (Applicant)
Maddocks (Applicants on the motion)
Department of Planning, Housing and Infrastructure (First Respondent)
Herbert Smith Freehills (Second Respondent)

File Number(s): 2024/364766

Publication restriction: Nil

JUDGMENT

1. Tamworth Regional Council (Council) seeks, by Notice of Motion filed 31 January 2025, to be joined as a party to these proceedings under s 8.15(2) of the Environmental Planning and Assessment Act 1979 (the Act).

2. These proceedings are a merit appeal by an objector, Hills of Gold Preservation Incorporated (Applicant), against the consent granted by the Independent Planning Commissioner (Commission) to the Hills of Gold Wind Farm project.

3. The Applicant consents to the motion and says that Council should be joined on the basis of all the issues Council proposes to raise in the proceedings. The Commission, the First Respondent in these proceedings, consents to the motion.

4. The Hills of Gold Pty Ltd, the proponent of the project and Second Respondent in these proceedings (Proponent), objects to the motion. The Proponent says that Council bears the onus of satisfying the Court that it should be joined as a party, it has not put on sufficient evidence and further that the Court would not exercise its discretion in the circumstances.

5. A s 34 conciliation conference is listed on 24 April 2025.

6. In my opinion, Council has satisfied both limbs of s 8.15(2)(a) and (b)(ii) of the Act and an order for joinder is justified in the exercise of the Court’s discretion for the reasons that follow.

Background of objector appeal

7. The proceedings relate to State Significant Development Application No. SSD-9679 which seeks consent for the project known as the Hills of Gold Wind Farm.

8. The site is located approximately 60 kilometres southeast of Tamworth in the Tamworth Regional, Upper Hunter Shire and Liverpool Plains Shire local government areas.

9. The project originally sought consent for a 420-megawatt (mw) wind farm with 70 wind turbine generators. The project involves over size and over mass (OSOM) vehicles to transport large equipment including turbine blades up to 82.5 metres in length from the Port of Newcastle to the site, originally via Nundle north of the site and involving extensive road upgrades to Devil’s Elbow.

10. The project is classified as State significant development under s 4.36 of the Act as it is for the purpose of electricity generating works with a value over $30 million: Schedule 1, cl 20 of State Environmental Planning Policy (Planning Systems) 2021. This classification triggers the requirement for an environmental impact statement (EIS) to be prepared in accordance with the Secretary’s environmental assessment requirements (SEARs): s 4.12(8) of the Act. The Commission is the consent authority as the project received more than 50 unique submissions by way of objection and Council objected to the project: s 4.5(a) of the Act and s 2.7 of the State Environmental Planning Policy (Planning Systems) 2021.

11. During exhibition, 255 submissions were made by way of objection including objections from the Applicant and the Council.

12. The project was amended to reduce the number of wind turbines to 64 and further information was provided including on economic viability and proposing three internal access road options A-C. During re-exhibition of the amended application, 214 written submissions were made including objections from the Applicant and the Council. Council, by way of letter from its solicitors, also made a further written submission.

13. The Commission approved to the project, granting development consent for a maximum of 62 wind turbines producing a capacity of 372 MW subject to conditions (the consent). The conditions authorise the development of the Crawney Road Access Option B, referred to by Council as the western access road.

14. The conditions also require various road upgrades identified in the table appended to the consent, to be implemented to the satisfaction of the relevant roads authority and Transport for NSW (and if there is a dispute about the road upgrades, then the matter may be referred to the Planning Secretary). These public road works include works to roads that Council is the roads authority under the Roads Act 1993, as well as roads in other local government areas.

15. The Applicant commenced these proceedings on 7 October 2024 as an ‘objector’ against the Commission’s determination to grant the consent under s 8.8 of the Act:

(1) This section applies to the determination of an application for development consent for designated development (including any State significant development that would be designated development but for section 4.10(2)), being a determination to grant development consent, either unconditionally or subject to conditions.

(2) A person who duly made a submission by way of objection during the public exhibition of the application for development consent (an objector) and who is dissatisfied with the determination of the consent authority to grant consent may appeal to the Court against the determination.

16. The appeal was commenced within the 28-day period following the objector being notified of the decision: s 8.10(2)(a) of the Act.

17. The Council did not file an appeal as an objector under s 8.8 of the Act within the 28 days. Council says that it did not commence an appeal within time, as it was in caretaker mode due to Council elections from when consent was granted until the expiry of the 28-day period: affidavit of Teagan Isabella Wood affirmed 31 January 2025 at paragraph 12. This evidence on delay is disputed by the Proponent, which I will return to on discretion.

18. This matter is listed for s 34 conciliation conference commencing in Court at 10am. A case management conference was listed for 14 February 2025 for the parties to address the Court on whether this is a need for a site view. This motion for joinder was heard on 14 February 2025.

Power to join and the two step process

19. The Court may order the joinder of a person as a party to proceedings pursuant to s 8.15(2) of the Act, if the Court is of the opinion:

(a) that the person is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party, or

(b) that —

(i) it is in the interests of justice, or

(ii) it is in the public interest,

that the person be joined as a party to the appeal.

20. The principles for considering an application for joinder under s 8.15(2) are well established having been stated in numerous Court decisions, and are not in dispute between the parties. Step one is to determine whether any of the statutory limbs are met and, if so, the step two is whether the exercise of the Court’s discretion justifies an order for joinder: Garling v Northern Beaches Council [2022] NSWLEC 102 (‘Garling’)at [47].

21. The power is facultative, in that it enables the Court to join a person who would not otherwise have a right to be a party: Morrison Design Partnership Pty Ltd v North Sydney Municipal Council and Director-General of the Department of Planning (2007) (‘Morrison’)159 LGERA 361 at [42]. The power is not intended to be plenary, in that it is not to be allowed in each and every circumstance for objectors to non-designated developments: Morrison at [41]-[54]. When considering exercising the power, the Court is to keep in mind that the legislature draws a distinction between designated and non-designated development, and the rights of public participation, including the right to be a party, differ: Morrison at [43].

22. The need for a contradictor may give rise to the satisfaction of the test, if neither party is raising that issue and the Court’s consideration of that issue would be inadequate without that person properly putting the case to the Court: Avalon Beach Property Pty Ltd v Northern Beaches Council [2017] NSWLEC 130 at [9]-[10]. Ordinarily, the lack of explicit mention in the contentions of a jurisdictional matter does not mean that the Court will not give the issue the requisite consideration: Hrsto v Burwood Council [2024] NSWLEC 1261 at [19]-[20].

23. The mere fact that the Court forms the opinion within the meaning of s 8.15(2) of the Act is not sufficient, the Court retains the discretion as to whether joinder should be made: Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205 (‘Bongiorno’) at [6].

24. In the exercise of discretion, the Court considers matters such as any delay in bringing the application, likely strength of the issues proposed to be raised in the context of the overriding purpose of the “just, quick and cheap” resolution of proceedings, and any potential prejudice: Bongiorno at [6]. Further, a multiplicity of parties and multiplicity of experts is generally undesirable, as it undermines the efficient conduct of proceedings and Court practice: Garling at [47] and Bongiorno at [9].

25. In the alternative, if the Court was not minded to grant joinder, the Council sought Double Bay Marina orders under s 38(2) and (3) of the Land and Envir**onment Act 1979 to participate in the proceedings: Double B**ay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313. The types of considerations under s 8.15(2) are also relevant to the exercise of discretion to make a Double Bay Marina order: Bongiorno at [5].

Statutory limbs under section 8.15(2) of the Act

26. Council relies on both limbs in its application for joinder under s8.15(2)(a) and (b)(ii). Council relies on the affidavit of Teagan Isabella Wood affirmed 31 January 2025 (Wood affidavit) is support of the motion.

27. The Proponent relies on the affidavit of Rainer Wolffe Stapp Gaunt sworn 10 February 2025 (Gaunt affidavit).

Issues not likely to be sufficiently addressed without joinder of Council

28. Council has prepared a detailed Statement of Facts and Contentions identifying the issues it proposes to raise, which are annexed to the affidavit of Ms Wood. Council’s contentions consist of three broad issues:

29. Owner’s consent has not been provided for the proposed road upgrade works which may encroach on private land, and in the absence of owners consent the Court does not have jurisdiction to grant consent.

30. There has has not been substantial compliance with the SEARs as the EIS does not contain details for public road works and the western access road, and as a result the Court does not have jurisdiction to grant consent.

31. The Court is unable to assess the merit impacts of the public road works and the western access road due to lack of sufficient information.

32. Firstly, Council seeks to raise the issue of owner’s consent for the road upgrade works which are necessary to allow access for OSOM vehicles. Council says those road works will encroach upon private land, it is not clear the extent of encroachment and owner’s consent required, and that the Court has no power to grant consent when no owner’s consent has been sought. It says this issue was not raised by the Applicant and is not likely to be given sufficient attention without the Council making legal submissions about this issue.

33. I agree with the Proponent’s submissions that owner’s consent is a jurisdictional issue that the Court commonly deals with and with the assistance of three legally represented parties it is likely to be sufficiently addressed. Further, I agree that owner’s consent has been raised in submissions and the Council would have a further opportunity to make submissions to the Court at the commencement of the s 34 conference (as well as a further opportunity should the matter proceed to hearing).

34. Secondly, Council seeks to raise the issue of substantial compliance with the SEARs. Council says it is settled law that the SEARs do not need to be strictly complied with for an application to be competent, but that there does need to be substantial compliance. The SEARs for this project require that for both the public road works and the western access road, the EIS has site plans and maps at an adequate scale, an assessment of the potential impacts, and a description of the measures to minimise impacts (including on surface and groundwater). However, Council wishes to raise the EIS does not contain the requisite plans for the road upgrade works, other than swept path plans, and the consent only approves roadworks by reference to the outcomes to be achieved. Further, Council says that the western access road is shown as a line marked Option B on a map and does not constitute the required level of detail. Council says that the original proposal was for the OSOM vehicles to traverse the Morrisons Gap Road, but relatively late in the assessment process the Proponent changed the application to propose three alternative routes from Crawney Road without providing a detailed depiction of these options.

35. The Proponent made the same submissions in relation to jurisdiction as it made on owner’s consent. That is, the matter can be put to the Court without the need for Council to be a party to the proceedings, it is a jurisdictional matter the Court commonly deals with and the legally represented parties will be able to deal with it.

36. I consider that the substantial compliance with the SEARs is an issue that, on balance, is not likely to be sufficiently addressed if the Council is not joined as a party. The issue is not raised as a jurisdictional issue in the Applicant’s contentions. I acknowledge that non-compliance with the SEARs has been raised in submissions, which would be before the Court in the bundle of documents, and the Council would have the opportunity to make further submissions at the commencement of the s 34 conference: Morrison at [44]-[46]. However, on balance I find that it would likely be of assistance to the Court for the Council to put those legal submissions as a party, and to participate fully in the proceedings including any without prejudice discussions. Further, joining the Council as a party will provide Council with an opportunity to engage with any without prejudice further information or amendments put by the Proponent in response to the contention.

37. The SEARs provide detailed traffic and transport requirements for the EIS including to “provide details of measures to mitigate and/manage potential impacts including a schedule of all required road upgrades, road maintenance contributions, and any other traffic control measures, developed in consultation with the relevant roads authority”. As neither party is raising the issue, and given the Council is the relevant roads authority for at least some of the required road upgrades, I consider that the Court’s consideration of the issue would likely be inadequate without Council properly putting their case on this point: Avalon at [9]-[10].

38. Thirdly, Council seeks to raise various merit assessment issues with the public road works and western access road which it says the Court is unable to assess the impacts of and would not be adequately addressed without Council being joined as a party. Council says the Proponent has failed to demonstrate those works will not have unacceptable impacts on biodiversity, flooding, erosion, sedimentation and surface water quality. The merit issues are closely related to the jurisdictional points, as Council says the Court would be unable to properly assess the impacts of the road upgrades and western access road works having regard to the lack of specificity in the plans and details submitted by the Proponent. Further, Council says there is uncertainty as to the extent of impact that these works will have, and the Proponent has not demonstrated that the impacts will be acceptable. Council says it is particularly concerned about the western access road as it is the roads authority for local roads surrounding the development.

39. The Proponent says the merit issues sought to be raised by Council overlap with the contentions raised by the Applicant and would be adequately addressed without the Council being joined as a party. Mr Gaunt’s affidavit provides evidence that the western access road is the road referred to as the western connector road in the Applicant’s contentions, and the Proponent argues that the contentions on that road overlap on constructability and inadequate information. The Proponent says the merit assessment issues were raised by Council in its objections, Council will have a further opportunity to raise these concerns before the Court regardless of being joined, and the three parties’ experts can deal with these issues.

40. I accept that there is some overlap between Council’s proposed merit contentions on the western access road and the Applicant’s contentions on the internal roads generally. In my opinion, Council is able to raise further particulars on the specific details required for dimensioned plans of the western access road route and in particular details required of the bridge that it says will need to be constructed to cross Wombramurra Creek in order for the Court to assess the impacts this bridge may have on that creek and downstream watercourses (contention 4 and 9). These particulars alone would not, in my view, be sufficient to justify an order for joinder.

41. However, Council’s issues with the public road works raise matters which are not raised by the Applicant which should be addressed and would not be adequately addressed without Council being joined. In particular, I am satisfied that Council is able to raise impacts of the public road works, which include roads in the Council local government area that the Council is the roads authority, in relation to:

42. Inability to assess the impacts of the public road works due to essential information missing including dimensioned plans at an adequate scale showing the extent and nature of the works required to accommodate OSOM vehicles, a description of measures to minimise surface and groundwater impacts and hydrological assessment of the flooding impacts in Nundle (contention 3).

43. Failure to demonstrate that the biodiversity impacts of the public road works will be acceptable, due to lack of plans and specifications including impacts of vegetation removal and changes to creek hydrology (contention 5); and

44. Failure to demonstrate that the public road works will not have unacceptable impacts on flood behaviour in Nundle, in circumstances where some of the roads are in a floodway and flood storage area with a hazard categorisation as “High” (contention 7).

45. In circumstances where contentions 3, 5 and 7 have not been raised by the Applicant and the Commission approved consent for the project in the absence of the above assessment, I consider that these issues are unlikely to be adequately addressed without Council being joined as a party. I accept that the public road works require other approvals under the Road Act 1993 and may well be the subject of future assessment as part of that process before Council and other roads authorities. However, I consider that the matters raised by Council should be considered to understand the potential impacts of the road upgrades required for the project and go to the viability of the project given the OSOM vehicles required for construction of the project. These are not discrete or straightforward impacts that can readily be considered. The issues are complex and interconnected, the impacts cover a significant area across multiple council areas, and the Court may benefit from expert evidence on these issues.

46. The Council is not simply an officious bystander but instead has an obviously legitimate interest in the impacts of the development: Mirvac Projects Pty Limited v Ku-ring-gai Council [2007] 151 LGERA 394 at [9]. Council is the roads authority for some of the roads required to be upgraded that are within the Council local government area in close proximity to the site, and they seek to lead evidence on the Proponent’s failure to demonstrate that the impacts of those upgrade works will be acceptable in its area. These issues alone are sufficient in my view, for Council to be joined as party. The contentions Council proposes to raise as they relate to other roads required to be upgraded that are not in their local government area, those contentions have not been raised by the Applicant and would also not otherwise in my opinion be adequately addressed if Council was not joined as a party.

Joinder of Council is in the public interest

41. Council argues it is in the public interest that it be joined the Council as a party under s 8.15(2)(b)(ii) of the Act, in relation to the western access road and the public road works. Council says there is a strong public interest in the feasibility of the western access road being fully explored given it is pivotal to the feasibility of the whole project. Further, Council says there is a public interest in Council being given the opportunity to raise issues about the impacts of this project on public roads both in relation to roads in the Council area and on public roads of other councils.

42. The Proponent says to the extent there is any public interest, it could and should only relate to the Council’s role within its local government area. The Proponent says that the feasibility of the western access road overlap with the concerns already raised by the Applicant and there is no evidence of the public interest in Council participating in the proceedings beyond the role of an objector.

43. I agree with the Council submissions that joining Council to the proceedings in in the public interest. The merit assessment issues proposed to be raised by Council are not discrete and the impacts are potentially wide ranging across Council’s local government area and multiple councils who are not a party to these proceedings including the Upper Hunter Shire and Liverpool Plains Shire. This project is classified as a State significant development, as an electricity generating development with a value over $30 million. Council seeks to raise issues with the impacts of the project both over its area and other council areas. As stated above, Council is not an officious bystander, they are a roads authority and are the roads authority at least for the roads in their local government area. Council is seeking to raise these issues not only for its own area but for other council areas as well.

44. Further, I consider that there is a public interest in seeking to determine all matters in dispute in relation to the project, given Council is the roads authority, and the feasibility of the project relies on required road upgrades to Council roads. Council joining as a party to these proceedings may also avoid further litigation.

Joinder is justified in the exercise of the Court’s discretion

45. Council seeks that the Court exercise its discretion in favour of Council and orders that it be joined as a party. Council relied on the affidavit of Ms Wood to explain the delay, initially that it did not commence an objector appeal under s 8.8 of the Act on the basis Council was in caretaker mode due to elections and it was not a feasible time to make a decision about commencing proceedings. On delay in bringing this motion to join the Applicant’s proceedings, Ms Woods’ evidence says Council took reasonable time to consider its position, take advice from its solicitors and prepare a detailed Statement of Facts and Contentions. On the matter of prejudice, Council says there is no prejudice to the Proponent given any additional costs are to deal with legitimate issues raised by Council. Further, Council says that those costs would have been the same if Council commenced their own objector appeal within time and any delay in filing a motion to join causes no detriment to the Proponent. Council says the s 34 conference will not necessarily go for longer or cost more with Council as a party, as it can still occur in one day and Council is open to collaborating with the parties to explore other arrangements for the conciliation (such as dispensing with the site view).

46. The Proponent does not accept Council’s evidence on delay and says Council has not provided an adequate explanation why Council did not commence an objector appeal within time. The Proponent says the Council has the onus of satisfying the Court that it should be joined, and they have not put on sufficient evidence. Mr Gaunt’s affidavit provides evidence of the potential prejudice alleged by the Proponent, of additional cost and delay of the proceedings. The Proponent says that joinder would result in a multiplicity of parties and multiplicity of experts which will undermine the efficiency and conduct of the proceedings.

47. I am satisfied to exercise the discretion in Council’s favour and order that Council is joined as a party, for the reasons outlined by Council. Council has explained the delay in filing the motion for joiner and the Proponent has not identified any prejudice caused by the delay. The motion for joinder was filed at an early stage in the proceedings, almost two months prior to the s 34 conference, and before any expert evidence is prepared or hearing dates allocated. The Proponent has had Council’s contentions since 31 January 2025, and by their own submissions they claim the issues were already raised in submissions and the Proponent would have been able to deal with the matters raised by Council without their joinder as a party.

48. I take into account that having multiple parties and multiple experts is generally undesirable and that Council would have the opportunity to have its concerns heard as an objector in the usual course. However, against these considerations, I weigh the issues raised by council that I consider would not be sufficiently addressed absence an order for joinder and which are not wholly raised in the Applicant’s contention. Further I weigh the particular position of the Council as roads authority for some of the public road works, and the Council’s intention to work collaboratively with the parties to limit the additional time or cost occasioned by their joinder.

49. On the Proponent’s alleged prejudice, I am not convinced by the Proponent’s submissions that the s 34 conference would not be completed in a single day. With some cooperation between the parties who are all legally represented, the s 34 conciliation conference should be able to be run efficiently. As it stands, the s 34 conciliation is listed to be held in Court and if the parties seek to list a site view it is open to them to make an application to the Court or seek a case management. To the extent that additional costs may well be incurred in experts briefed in the proceedings, I consider that it may be beneficial for the Court to have the assistance of expert evidence on these complex issues on a large-scale project.

50. Further, the Proponent says that as they did not exercise their right to appeal as an objector within the 28-day period they lose the benefit of that, and the Court would not have regard to that. I accept Council’s submissions that it is not a disqualifying factor that Council could have commenced its own objector appeal and did not do so. It is in my view unrealistic to ignore the background circumstances that Council is an ‘objector’ who had a right of appeal under s 8.8 of the Act and that this project is for State significant development, and these circumstances weigh in favour of exercising the discretion.

51. As I am satisfied that both limbs of the statutory test for joinder under s 8.15(2) of the Act have been met, I do not need to consider Double Bay Marina orders. For completeness, given the issues raised by Council and the public interest consideration, in my view Double Bay Marina orders would not be sufficient in the circumstances and the more appropriate order is for joinder.

Orders

52. I am satisfied to grant the motion for the reasons outlined above.

53. The Court orders that:

54. The Notice of Motion filed 31 January 2025 is granted.

55. Tamworth Regional Council is joined as the Second Applicant to these proceedings.

56. Leave is granted for the Second Applicant to rely on the Statement of Facts and Contentions filed and served on 31 January 2025, contained at Annexure F to the affidavit of Teagan Isabella Wood affirmed 31 January 2025.

57. The Second Applicant is to file and serve a Notice of Appearance by 2 April 2025.

58. The s 34 conciliation conference listed on 24 April 2025 is confirmed.

D Holm

Senior Deputy Registrar of the Court

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