Nadge v A-CAES NSW Pty Ltd

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Category: Principal judgment

Parties: Travis Nadge (First Applicant)
Linda Nadge (Second Applicant)
A-CAES NSW Pty Ltd (First Respondent)
Minister for Planning and Public Space (Second Respondent)

Representation: Counsel:
T Poisel (Applicants)
J Lazarus SC, M Harker (First Respondent)
M O’Brien (Second Respondent)
Solicitors:
Maddocks (Applicants)
DLA Piper (First Respondent)
Department of Planning, Industry and Environment (Second Respondent)

File Number(s): 2025/118477

Publication restriction: Nil

Judgment

1. COMMISSIONER: This appeal concerns the grant of development consent for an electricity generating station at a property in Broken Hill. The development application, being for state significant development, was made by the first respondent, in SSD-47065463, pursuant to s 4.12(8) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) (SSD Application). The development consent was granted by the second respondent on 21 February 2025, subject to conditions. The applicants, who made submissions by way of objection to the SSD Application when it was publicly exhibited, appeal against the grant of development consent pursuant to s 8.8 of the EPA Act. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the SSD Application pursuant to ss 4.15 and 4.38 of the EPA Act. The final orders in this appeal, outlined in [22] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The development the subject of the SSD Application is for a large-scale long duration energy storage facility using Advanced Compressed Air Energy Storage (A-CAES). It is to be located on the Potosi Mine site, around 3km northeast of Broken Hill. The development also includes a proposed electricity transmission line, around 16km long, around the southern boundary of the Broken Hill township to connect to an existing substation to the southwest.

3. The site the subject of the SSD Application comprises land legally known as Lot 2 in DP 757304; Lot 162 in DP 725335; Lots 2, 3, 4, 5, 6, 8, 10 and 11 in DP 757268; Lot 567 in DP 760829; Lot 2 in DP 1102040; Lot 1 in DP 1112071; Lot 1 in DP 914762; Lot 7302 in DP 1181129; Lot 7331 in DP 1182907; Lot 7314 in DP 1185108; Lots 7481, 7484, 7485, 7486, 7489 and 7490 in DP 1200701; Lot 7336 in DP 1201053; Lot 1 in DP 1249242; Lot 6 in DP 725395; Lot 4 in DP 1220372; Lot 1620 in DP 763339; Lot 7320 in DP 1201053; Lot 3 in DP 1083729; and parts of road corridors adjoining Lot 7302 DP 1181129, Lot 4 DP 1120372 and Lot 1 DP 1249242.

4. The appeal proceeded to a hearing that commenced on 23 March 2026. Following an adjournment of the hearing, the Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 25 March 2026. I presided over the conciliation conference.

5. At the conciliation conference, an agreement under s 34(3) of the LEC Act has been reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The signed agreement was filed the same date, and follows an agreement on conditions of development consent that resolve the issues that were previously in dispute between the parties.

6. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.38 of the EPA Act. The signed agreement is supported by an Agreed Jurisdictional Statement provided by the parties to demonstrate compliance with the jurisdictional prerequisites necessary for the Court to exercise power to grant development consent to the SSD Application. I have considered the contents of the Agreed Jurisdictional Statement, together with the documents referred to therein, the Environmental Impact Assessment dated August 2023 (the EIS), the Development Assessment Report dated February 2025 and the SSD Application documents, contained in the First Respondent’s Bundle filed 17 March 2026 and the Supplementary Bundle filed 20 March 2026. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

7. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the SSD Application subject to conditions of consent is a decision that the Court could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. This test is concerned with there being no jurisdictional constraints that preclude the making of orders in accordance with the decision that the parties’ have agreed upon (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the reasons set out below.

8. The consent of each of the landowners has been provided and is contained within the first respondent’s supplementary bundle of documents.

9. The development is permissible pursuant to s 2.36(1)(b) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI), which permits development for the purpose of electricity generating works in land in a prescribed non-residential zone. The development the subject of the SSD Application meets the definition of electricity generating works in s 2.35 of the SEPP TI. The site comprises the following land zoned under the Broken Hill Local Environmental Plan 2013 (BHLEP):

10. The facility is proposed to be located on land zoned SP1 Special Activities;

11. The transmission line is proposed to be located on land zoned SP1 Special Activities, RU2 Rural Landscape, RE2 Private Recreation, SP2 Infrastructure (Water Supply Systems), C2 Environmental Conservation and E4 General Industrial under the BHLEP; and

12. Part of the transmission line has no applicable zoning.

13. The land zoned SP1, RU2, SP2 and E4 are all identified as a prescribed non-residential zone pursuant to s 2.35 of the SEPP TI. Although s 2.36 of the SEPP TI does not operate to make the development permissible on land zoned C2 and RE2, consent can be granted for the development in those zones pursuant to s 4.38(3) of the EPA Act, which provides that “development consent may be granted despite the development being partly prohibited by an environmental planning instrument”.

14. As set out above, the proposed development is for the purpose of state significant development, pursuant to Pt 4 of the EPA Act. As required by s 173 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation 2021), an application was made to the Planning Secretary for the environmental assessment requirements for the environmental impact statement.

15. Consistent with the requirements of s 4.12 of the EPA Act, the SSD Application is accompanied by the EIS. The parties agree, and I accept that, the EIS substantially complies with the environmental assessment requirements notified by the Secretary in accordance with s 191 of the EPA Regulation 2021. In addition, on 23 March 2026, the SSD application was amended to include an Environmental Management Strategy, which includes matters dealt in a Construction Environmental Management Plan, which provides more detailed information in response to one of the requirements.

16. The site has frontage to the Barrier Highway, which is a classified road, and s 2.119 of the SEPP TI applies. In accordance with s 2.119, vehicular access is provided from Silver Peak Road, a road other than the classified road, and, based on the Traffic and Transport Impact Assessment dated July 2023, I am satisfied that the safety, efficiency, and ongoing operation of the classified road will not be adversely affected by the development as a result of the vehicular access or the emissions from the development. In relation to s 2.119(2)(c), the proposed development is not one that is sensitive to traffic noise or vehicle emissions.

17. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH). Whilst the land has historically been used for mining, the facility is proposed to be located on undeveloped land. There is also a Baseline Environmental Site Assessment dated 10 April 2024, which considers that the potential for contamination is low.

18. Further, based on the EIS, the proposed development does not fall within the definition of potentially hazardous industry as set out in s 3.11 of the SEPP RH.

19. The site includes some items of aboriginal cultural heritage significance, which may be impacted as a result of the proposed development. Based on the EIS, the Aboriginal Cultural Heritage Assessment dated July 2023 and the agreed conditions of development consent, which includes a salvage program and the preparation of an Aboriginal Cultural Heritage Management Plan, I have considered the impact of the proposed development of the heritage significance of those items, as required by cl 5.10 of the BHLEP.

20. The SSD Application includes earthworks for the components of the facility. Based on the EIS, and the first respondent’s note provided on 25 March 2026, I have considered the matters set out in cl 6.1(3) of the BHLEP.

21. Clause 6.2 of the BHLEP applies to the site, and concerns the provision of essential services. Based on the information in the Agreed Jurisdictional Statement, and the documents referred to therein, I am satisfied that the essential services referred to in cl 6.2 are either available or that adequate arrangements have been made to make them available when required.

22. The proposed development includes the clearing of vegetation to an extent that exceeds the biodiversity offsets scheme threshold pursuant to cl 7.2(1) of the Biodiversity Conservation Regulation 2017 (BC Regulation) and a biodiversity development assessment report is therefore required pursuant to the Biodiversity Conservation Act 2016 (the BC Act). Consistent with s 7.7 of the BC Act, the SSD application includes the Amended Biodiversity Assessment Report dated 22 August 2024 and the Revised Final Amended Biodiversity Development Assessment Report dated 31 October 2024 (RFABDAR). The RFABDAR concludes that the site does not contain any ecological endangered communities, and that biodiversity credits will offset the loss of native vegetation and any impacts on species that are presumed (but are unlikely) to be present on the site. Pursuant to s 7.13 of the BC Act, I have considered the likely impact of the proposed development on biodiversity values as assessed in the RFABDAR. The parties agree, and I am satisfied, that the applicable provisions of the BC Act and the BC Regulation have been satisfied, and that the agreed conditions of consent will meet the requirements of s 7.13(3) of the BC Act.

The outcome of the appeal

20. Having reached the state of satisfaction that the decision is one that the Court could have made in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

21. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any evaluative judgment on the matters that were originally in dispute between the parties, or any assessment of the merits of the SSD Application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Orders

22. The Court orders that:

23. The appeal is upheld.

24. State Significant Development Application SSD-47065463 for a compressed air energy storage facility, known as the Silver City Energy Storage System, and associated works, on the land identified in Appendix 2 of Annexure A, is determined by the grant of development consent subject to the conditions contained in Annexure A.

J Gray

Commissioner of the Court

Annexure A (3.20 MB, pdf)

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