Victorian Civil and Administrative Tribunal|2006-07-19

Macarthur Wind Farm Pty Ltd v Moyne SC [2006] VCAT 1423 (19 July 2006)

Moyne Planning Scheme; Application pursuant to Section 82 the Planning and Environment Act 1987; Rural Zone; Two tourist accommodation units; Wind energy facility; Planning policy; Land use conflict; Lyndale and Black v MMBW; Quality of permit application; Content of Notice of Decision; Noise impacts on sheep; Financial ruin.

Macarthur Wind Farm Pty Ltd v Moyne SC [2006] VCAT 1423

The decision of the Responsible Authority in relation to permit application No PL05/100 is set aside. Pursuant to the provisions of Section 85(1)(a) of the Planning and Environment Act 1987, it is directed that a permit must not be granted.

Mr Mark Dwyer, Solicitor of Freehills. He called written and oral evidence from Ms Debra Butcher, Town Planner of Environmental Resources Management Australia Pty Ltd and Mr Malcolm Hayes, Acoustic Consultant of Hayes McKenzie Partnership.

1 Claims and allegations of financial ruin, bullying, intimidatory behaviour, opportunistic obstructionist behaviour, possible destruction of Striped Legless Lizard and Brolga habitat, uninformed and ignorant experts, dire environmental impacts and the emotional well being of sheep. This case has all the hallmarks of a riveting novel!

2 Macarthur Wind Farm Pty Ltd and Hamish Officer oppose Council's decision to support the construction of two farm stay (tourist accommodation) units on the review site. The Notice of Decision issued on 25th November 2005 contains 14 conditions.

3 The proposal involves the construction of two accommodation units near the southern boundary of the property, which will be rented out to visitors and guests seeking a 'farm stay' experience. The two units are prefabricated and each contains two bedrooms, living/dining area, kitchen, bathroom, laundry and verandah along the front wall. They are rectangular in shape and measure approximately 7 metres by 12 metres. A double car port is attached to one side of each unit, although given their location and the size of the property, the adequacy of space for parking, access ways, landscaping, rainwater tanks and other similar detailed design matters are of little importance in assessing whether the units should be allowed in this location.

4 The property ('Warrameann') owned by Mr and Mrs Gardner is located around 15 kilometres north east of the small township of Macarthur, which is itself located about midway between Hamilton and Port Fairy. The property has a total area of 234ha and is used for ultra fine merino wool production. Sheep are kept in the open air in paddocks but the crucial part of ultra fine wool production takes place in an elevated shed located close to the homestead. The shed holds 400 sheep and the longer term intention is to duplicate the shed to provide undercover space for a total of between 800 and 1000 sheep. The single storey homestead and associated shedding and yards are located close to the end point of Eckersleys Road and are between 700 metres and 1.2 kilometres away from the proposed accommodation units.

5 Surrounding properties are used for extensive grazing purposes although some areas of land have now been converted to timber production. The grazing property to the south owned by the Officer family ('Brandon') is subject to a proposal by Macarthur Wind Farm Pty Ltd to construct a 183 turbine wind energy facility. Eckersleys Road which is part gravel and part bitumen surfaced runs off Gerrigerrup Road to the north and terminates outside 'Warrameann'. Gerrigerrup Road itself runs off the Macarthur-Penshurst Road around 17 kilometres from Macarthur and 22 kilometres from Penshurst.

6 The site and surrounding land is zoned Rural.[1] No overlays apply to the review site or adjoining land. A number of state and local planning policies were highlighted for my consideration.[2]

7 On the morning following the hearing and in the company of parties, I inspected various parts of 'Warrameann' including the two sites for the proposed units, the ultra fine wool shed and drainage lines. I also observed the neighbouring property from the boundary fence and had pointed out to me stakes indicating sites for several of the proposed turbines.

8 Documents and photos submitted at the hearing have been retained on the Tribunal file.

The quality of the application and the Notice of Decision

9 I firstly want to say something about the quality of material submitted with the application and the content of the Notice of Decision.

10 Both Mr Officer and Macarthur Wind Farm Pty Ltd criticised the quantity and standard of material submitted with the permit application. Council also clearly considered the original information inadequate and sought more information pursuant to Section 54 of the Planning and Environment Act 1987. I agree with all three that the information accompanying the application was inadequate. Indeed it was pitiful. The material comprised a completed application form, a hand drawn 'sketch' not to scale with crosses marking the locations for the two units, and two brief handwritten paragraphs describing the proposal. Mr and Mrs Gardner are clearly articulate people operating a commercial farming business. I am certain that over the years they have prepared numerous written submissions, business plans and the like and I cannot imagine for one moment that their submissions for things like finance or their business plan would be as inadequate as the material originally submitted with the permit application. While I am aware that many municipalities outside Melbourne take a more lenient approach to the standard of material submitted with permit applications, there is a basic level of information, including scaled plans, which should be provided with all applications no matter how insignificant they may seem to the permit applicant. The additional information provided by Mr and Mrs Gardner went some way to filling the void, but I agree with Ms Butcher when she gave evidence in paragraph 6.2 of her written statement:

...that the information provided in support of the farmstay application, was not of adequate quality to enable Council to undertake an adequate assessment of the proposal.

11 In supporting her remarks I am not suggesting that an application for two farm accommodation units should be as comprehensive as an application for medium density development in Port Fairy or a wind energy facility such as that proposed by Macarthur Wind Farm Pty Ltd, rather that it is impossible to properly assess a permit application if it is not supported by adequate information. Although Mr Dwyer questioned the Gardner's motivation and timing in lodging the permit application in terms of their ongoing opposition to the Macarthur wind energy project, I make no finding on that allegation, and have instead assessed the Gardner's proposal on the basis of the information presented at the hearing and my observations during the site inspection the following morning. However in paragraphs 27-29 I make some comment about the Gardner's business plan and the impact on the financial viability of their farming business if this application is refused.

12 I now turn to the content of the Notice of Decision and the way in which permit conditions have been framed to allow alternative locations for the two accommodation units. The application, however inadequate the supporting information, was clearly for two accommodation units (variously described as farm stay/bed and breakfast x2/dwellings/two relocatable homes) to be positioned 20 metres from the southern boundary of 'Warrameann'. Quite correctly the permit application did not offer alternative sites closer to the existing homestead. During Council's consideration of the application, the idea took hold that alternative sites well away from the proposed wind turbines would be a preferable outcome. The Council Delegate Report dated 24th October 2005 stated that:

Therefore to achieve a balance between potential future land use conflicts and achieving the efficient use of the land resource, it is considered more appropriate that the units should be located within the vicinity of the main dwelling on the land.

13 The officer then went further and stated that:

...it is appropriate for Council Officers to recommend support for the proposal with one of the key conditions being that the units be located within the vicinity of the main dwelling on the land.

14 Leaving aside for the moment that the condition as finally included on the Notice of Decision did not do what the officer wanted, but instead allowed for alternative locations (either in the vicinity of the farm house and shedding or in the vicinity of the southern boundary), it is not appropriate for Council officers to recommend support for a proposal which was manifestly different (in terms of location and hence impacts) to what was applied for by Mr and Mrs Gardner. This conditional support is not about a minor change to the design or size of the accommodation units or a minor relocation to take account of some natural ground feature. Mr Dwyer made favourable reference to Arleon Holdings P/L v MMBW (P84/0108, noted (1986) PABR 6) and the principle that the element of finality or certainty is an essential characteristic of a valid permit. The Notice of Decision in this case does neither. If the proposed siting for the two accommodation units was not appropriate in order to achieve a balance between potential future land use conflicts and achieving the efficient use of the land resource, then the application should have been refused.

15 Even if I had determined to reject the application for review made by Mr Officer and Macarthur Wind Farm Pty Ltd I would have varied Council's decision to remove the consideration of alternative locations allowed by condition 2.

16 Although there was some debate about the characterisation of the use and the way the proposal has been variously described by Mr and Mrs Gardner, I agree with Mr Dwyer and Ms Butcher that the proposal can best be described as a 'Host farm', that defined as such it is nested within the broader 'Accommodation' use, and that 'Accommodation' is a section 2 use in the Rural Zone. Mr Dwyer discussed other definitions and I agree with him that the proposed units do not meet the planning scheme definition of 'Bed and breakfast' or 'Dwelling'.

17 It is evident from submissions that there is no dispute between any of the parties that providing two accommodation units on 'Warrameann' is quite consistent with the Rural Zone provisions and with planning policy. Decision guidelines and local policy support diversification of activity within rural areas and encourage the establishment of tourism related activities, including on farm accommodation. Mr Dwyer submitted that:

It should be emphasised at the outset that the objectors do not object, in principle, to the issue of a permit for use and development of two farm stay units on the Gardner property.

18 The sole issue in contention then is the location of those two units. As noted at the hearing it is not my task to assess alternative sites or alternative proposals. I have to assess the proposal applied for and determine whether it should or should not be supported - it stands or falls on its merits. Partly driven by Condition 2 in the Notice of Decision, Mr Dwyer, Mr Guest and Mr and Mrs Gardner spent some time discussing (and showing me) alternative sites near the homestead and shedding. Although I stated at the hearing that I was not considering alternative sites, considerable time and effort could have been saved if I had more clearly stated that I would unquestionably delete or modify condition 2 to remove the choice of sites if I eventually decided to support the Gardiner's permit application.

Location of the proposed accommodation units and potential conflict with the proposed wind farm

19 In dealing with this fundamental issue, it is necessary to consider the decision guidelines for the Rural Zone at Clause 35.01-6, the general decision guidelines at Clause 65, together with other relevant policies in the planning scheme. Clause 11 specifically requires me to:

endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development.

20 General decision guidelines are set out in clause 65 of the planning scheme and apply to all decision making under the planning scheme. The first paragraph of clause 65 provides:

Because a permit can be granted does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines of this clause.

21 Clause 65.01 sets out matters that must be considered before deciding on any application or approval of a plan. These include state and local policy frameworks, zone and overlay and other provsions, the orderly planning of the area, the effect on the amenity of the area and environmental impacts.

22 The Rural Zone includes decision guidelines grouped under general, rural, environmental, design and siting 'issues'. These cover a comprehensive range of matters but require consideration of, as appropriate, impacts of the use or development on the existing and surrounding land uses, and on flora, fauna and landscape features. Of particular importance is the need to consider whether the site is suitable for the use or development and the compatibility of the proposal with adjoining and nearby farming and other land uses. (my emphasis).

Is the wind farm a seriously entertained planning proposal?

23 It is apparent from the tenor of their submission, that Mr and Mrs Gardner remain implacably opposed to the proposal for a wind energy facility on the adjoining property. Although the report on that proposal has not yet been made public, they are using this permit application, at least in part, as a means to further voice their opposition to that proposal. For example, in part three of their submission, they revisit the acoustic evidence for the wind farm and suggest that those noise levels may be breached. In part 4 they comment that:

The claim by Malcolm Hayes that the noise level at our units will breach the guidelines at night confirms that the impact of our neighbour's proposal reaches well past their boundary and into our property.

24 Given that the Mr Hayes has given evidence that the proposed units will be seriously affected by turbine noise, I fail to see how commentary and allegations about whether the noise levels will meet guidelines is at all relevant to this permit application which proposes to insert a noise sensitive activity into an area where none exists at present. There is no dispute that parts of the Gardner property will be affected by noise from the wind turbines.

25 Despite submissions to the contrary, I agree with Mr Dwyer that the Macarthur wind energy facility is a seriously entertained planning proposal in the terms set out in Lyndale and Black.[3] The permit application for the facility was supported by a considerable body of expert evidence and research, was widely exhibited, has strong policy support within the Planning Scheme, has not raised any Commonwealth EPBC issues (unlike other wind energy facilities in Victoria), has been examined by an independent panel during lengthy public hearings and is now with the Minister for Planning for his consideration.

26 I am therefore satisfied that I must consider the impact of the proposed units on the adjoining land use, even though that land use has not yet been started. Mr and Mrs Gardner suggested that the wind farm may never be built and that they should not be penalised or their plans put on hold for something that may never be built. That is entirely speculative and I can only base my decision on what is a seriously entertained planning proposal. If for some reason the wind farm is not constructed then they are quite at liberty to make a new application based on the circumstances existing at that time.

The business plan and financial impact if this application is refused

27 Mr and Mrs Gardiner submitted that their succession and business plans prepared in 1997 at the time of serious financial difficulties included proposals to expand the capacity of shedding from 400 to 800-1000 sheep together with related tourism accommodation. The first stage of their expansion plans took place in 1999/2000. They claim that the proposed wind energy facility has effectively destroyed their long term plans because in early 2005 their financier withdrew funding for their further expansion plans, primarily because of land devaluation if the wind energy facility proceeded. I deduce three things from these submissions. First, the Gardner farming business on their own admission was in serious financial difficulties nearly a decade before there was any suggestion of a wind energy facility on the adjoining property. Secondly, that despite the passage of around 8 years, the Gardner's did nothing about the tourist accommodation side of the business and perhaps inexplicably, only acted after their financier had withdrawn funding in early 2005 and once the wind energy facility had reached a relatively advanced planning stage. Thirdly, that whether or not these units are built, the reasons for their finance being withdrawn (ie. the proposed wind energy facility next door) will remain. Therefore their expansion plans will remain unfulfilled and based on their submission they will face bank foreclosure.

28 While the cost of the two accommodation units is relatively insignificant, I find it almost incomprehensible that Mr and Mrs Gardiner would deliberately choose to locate two 'farm stay units' so close to the boundary with the site for the proposed Macarthur wind energy facility. Despite their lengthy submission, I cannot understand the logic in their wishing to site the two units as proposed. On one hand they want to establish a 'rural retreat' for people from the city who would like to spend time in the fresh country air and we are indeed wanting to appeal to those who want to be at 'one with nature'... . On the other hand they claim to have deliberately chosen the location due to huge impact of wind turbines placed so close to our farm fences, a very large area of our southern paddocks will not be grazed by our ultra fine merino sheep, which have a very sensitive nervous system.

29 Proposing to locate the two accommodation units so close to the wind turbines is a sure fire way of reducing their financial return since guests will be hard to attract, and even harder to entice back for return visits.

30 Planning literature is full of examples where conflict between incompatible uses leads to ongoing complaints and a souring of neighbourly relations. Often the uses established prior to the introduction of planning controls or where controls were inadequate to prevent incompatible uses establishing. One of the best examples in Victoria is around Essendon Airport where encroaching residential development, noisier and bigger aircraft, higher environmental standards and different community expectations have all seriously impacted on the operational capability of what was once one of the major airports in Australia. Clause 11 of the State Planning Policy Framework sets out the goals and principles for planning in Victoria. Among a large array of specified matters, planning is to prevent environmental problems created by siting incompatible land uses close together and by resolving land use conflicts. Deliberately siting two accommodation units in a location that will be adversely affected by wind turbine noise would result in the sort of outcome that these principles are seeking to avoid.

Will sheep be affected by noise from the wind turbines?

31 There was discussion at the hearing about the hearing capabilities of sheep with Mr Hayes giving his expert view that sheep have a low sensitivity while Mr and Mrs Gardner countered that his evidence was not based on research of their breed of sheep - Merino's producing ultra fine wool. Mr Hayes conceded that he had not conducted nor knew of any research on the specific hearing capabilities of such a breed. However it was his expert opinion that the hearing capabilities of different breeds of sheep would not vary to any great extent.

32 In my mind I liken it to dogs, horses or even humans for that matter. Each species has a 'normal' range of hearing with some individuals being more sensitive to noise than others - often caused by their particular exposure to noise. That may extend to a group - such as thoroughbred race horses - but is just as likely to relate to individual sensitivity. An example would be ex-service men and women who for years after returning from Vietnam still responded unfavourably to the sound of helicopters or cars backfiring. Another example would be residents living under the flight path of a major airport who hardly register planes flying overhead but whose visitors are very aware of such noise.

33 I would expect the same response with sheep as with any other animal. In other words for the sheep to become used to the sound of wind turbines and for them to adapt accordingly. I do not accept that the emotional well being of the sheep will be so adversely affected that their productivity will drop in the manner suggested by Mr and Mrs Gardner. In any event, the sheep will be subject to wind turbine noise whether or not these two accommodation units are built.

34 There was some inconsistency in the Gardner's written submission about whether southern paddocks are used for grazing or sheep work. While I accept there is a difference between the two, their submission variously states that the southern paddocks are being used for both grazing and sheep work. For example, in part 2 of their submission the comment is made that:

We will have no choice but to continue running sheep in these paddocks, (as we have no other choice with such a small farm), but productivity will be severely restricted and the number of sheep in these mobs will be reduced.

These two sites are located on the areas where our pasture was destroyed during the laying of the Telstra fiberoptic cable, and which haven't ever recovered from that damage, and as a result are not grazed by our sheep and cattle.

On the basis of these comments I have come to the conclusion that the southern paddocks are used for both sheep grazing and sheep work. I had expected the areas affected by the Telstra work to be devoid of vegetation or with disturbed soil but I did not observe any obvious differences and on that basis alone can find no justification for choosing these particular sites.

35 Various adverse environmental impacts of the proposed development were raised by Mr Dwyer and Ms Butcher. Having inspected the site, I agree with Mr and Mrs Gardner that much of this opposition is overdone and that two small accommodation units hardly warrant the level of environmental investigation that a larger proposal such as a wind energy facility might require and which Ms Butcher suggested should be undertaken. These two accommodation units have tiny footprints and are largely self contained in terms of water supply, bottled gas, power and the like. Farm access tracks either exist or could be improved to provide what would be very low impact vehicular access ways. Achieving effective drainage is an obvious problem on the property and the many drains are indicative of the problem and of measures taken over many years to improve drainage. However I consider it quite likely that drainage and effluent from these two accommodation units could be managed effectively and would not refuse the application on such grounds. I also do not accept that the sites chosen should be rejected in terms of the broader environmental issues raised by Ms Butcher.

36 Brolgas and their habitat were also raised as reasons why the accommodation units could not be located further from the southern boundary. This may or may not be the case, but as will be clear by now from my earlier comments, I am only concerned about assessing the two sites applied for, not a multitude of alternatives.

37 It is clear that Mr and Mrs Gardner remain completely opposed to the proposed wind energy facility on the property to the south of 'Warrameann'. Their original application was quite inadequate in terms of supporting information and justification as to why the proposal warranted Council support. Given the opinions expressed by Council officers the application should have been refused rather than a Notice of Decision being granted with options as to the siting of the two accommodation units. I am satisfied that the Macarthur wind energy facility is a seriously entertained planning proposal and that the effects of that proposal must be taken into account in assessing this application for two accommodation units. On the basis of having balanced conflicting objectives in favour of net community benefit and sustainable development I am satisfied that the application for two accommodation units in the locations proposed by Mr and Mrs Gardner should be refused.

38 Accordingly, I will order that the decision of the Responsible Authority be set aside and that no permit issue.

[1] Clause 35.01 requires a permit for use and development of the land for accommodation.

[2] Other relevant Planning Scheme provisions include Clauses 11, 15.09, 15.14, 17.04, 17.05, 19.03, 21 (various), 22.01, 22.02, 22.03 and 65.

[3] Lyndale & Black v MMBW (1983) 1 PABR 207.

Environment Act 1987

Macarthur Wind Farm Pty Ltd v Moyne SC [2006] VCAT 1423

At a glance

Court

Decision date

Source

Judgment (44 paragraphs)

Macarthur Wind Farm Pty Ltd v Moyne SC [2006] VCAT 1423 (19 July 2006)

Parties

Legislation Cited (1)