Plaintiff v First Defendant

Plaintiff v First Defendant - [2021] VSC 510 - VSC 2021 case summary — Zoe

[54]

When does a permit expire?

(1) A permit for the development of land expires if -

(a) the development or any stage of it does not start within the time specified in the permit; or

(aa) the development requires the certification of a plan of subdivision or consolidation under the Subdivision Act 1988 and the plan is not certified within two years of the issue of the permit, unless the permit contains a different provision; or

(b) the development or any stage is not completed within the time specified in the permit, or, if no time is specified, within two years after the issue of the permit or in the case of a subdivision or consolidation within 5 years of the certification of the plan of subdivision or consolidation under the Subdivision Act 1988.

(2) A permit for the use of land expires if -

(a) the use does not start within the time specified in the permit, or, if no time is specified, within two years after the issue of the permit; or

(b) the use is discontinued for a period of two years.

(3) A permit for the development and use of land expires if -

(a) the development or any stage of it does not start within the time specified in the permit; or

(b) the development or any stage of it is not completed within the time specified in the permit, or, if no time is specified, within two years after the issue of the permit; or

(c) the use does not start within the time specified in the permit, or, if no time is specified, within two years after the completion of the development; or

(d) the use is discontinued for a period of two years.

(3A) If a permit for the use of land or the development and use of land or relating to any of the circumstances mentioned in section 6A(2), or to any combination of use, development or any of those circumstances, requires the certification of a plan under the Subdivision Act 1988, unless the permit contains a different provision -

(a) the use or development of any stage is to be taken to have started when the plan is certified; and

(b) the permit expires if the plan is not certified within two years of the issue of the permit.

(4) The expiry of a permit does not affect the validity of anything done under that permit before the expiry.

[160]

(a) The application to amend the Permit made in February 2017 was made by ERM on behalf of Ryan Corner Development. The application form noted pre-application meetings with Mr Juttner and other DELWP planning officers on 7 September 2015 and 2 May 2016. Ryan Corner Development was identified as the applicant in submissions made to the planning panel appointed in relation to the proposed amendment, in August 2017.

(b) ERM's cover letter of 17 August 2020 referred to 'Global Power Generation' and 'GPG', and not explicitly to 'Global Power Generation Australia Pty Ltd'.

(c) The references to actions of 'GPG' in the cover letter describe actions taken by a number of different entities within the GPG group in relation to the development of the Berrybank, Ryan Corner and Hawkesdale wind farms. Given the interconnected nature of the group's corporate structure, it was convenient to describe the various entities as a group. In that context, the Proponents submitted that the references to 'GPG' in the cover letter were best understood as references to Global Power and the relevant special purpose vehicle.

(d) Other documents in the application package clearly identify Ryan Corner Development as the entity that was proposing to construct the Hawkesdale wind farm. The environmental audit report and the acoustic reports were addressed to Ryan Corner Development, and identified it as the developer of the wind farm.

(e) In September 2020, ERM lodged a separate application for a permit to remove native vegetation to facilitate the development of a transmission line to connect the Ryan Corner and Hawkesdale wind farms to the terminal station. The cover letter stated that ERM 'continues to act on behalf of Ryan Corner Development Pty Ltd C/- Global Power Generation Australia Pty Ltd (GPG)'.

(f) ERM had been engaged by Ryan Corner Development, not Global Power, to provide services in respect of the Hawkesdale wind farm project. The Proponents submitted that ERM did not have authority to request an extension on behalf of Global Power, other than in its capacity as agent for Ryan Corner Development.

[248]

Most of these issues relate to wind farm design and siting, and are therefore best addressed through the planning system. The wind energy guidelines set out the standards for wind farms. The guidelines are applied to decisions on planning permits for wind farms, and include standards for operational wind turbine noise. The relevant planning authority (usually the council) is responsible for ensuring compliance with the planning permit. Where appropriate, the EPA provides technical support to planning authorities.

We consider the current approach could be reframed, to provide a higher level of assurance to the community on risk assessment, and to deal with the challenges council planners face on technically assessing wind turbine noise impacts (one of the main issues associated with operational wind farms).

We consider the EPA could more effectively deploy its expertise. Specifically, the statutory environmental audit system should be employed to provide authoritative, independent and expert advice to local government, both at the time of applications and to support compliance.

We propose amending the wind energy guidelines to require that where an assessment of wind farm noise compliance is required, proposed or existing wind farm operators must obtain an assessment and verification of wind farm noise compliance undertaken by an EPA appointed auditor. Consistent with the requirements that currently apply to assessment of risk from potentially contaminated land, the statutory environmental audit would be undertaken by the proponent of the wind farm as part of their planning application. And the audit would be on the public record.

The statutory audit process, which the EPA oversees, provides an authoritative sign-off on compliance when operations commence. We also propose that the EPA prepare specific guidance for wind farm noise assessment, and that DELWP and the EPA develop a protocol to determine when compliance reviews should be conducted, including to address currently operating wind farms. ...

...

We consider that consistent use of statutory environmental audits will address many of the issues and concerns raised in submissions, including:

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