Supreme Court rejects The Sisters wind farm appeal

THE Supreme Court has dismissed an appeal by the developer of The Sisters wind farm, once again crushing plans for the 12-turbine project north-west of Terang.

Moyne Shire mayor Jim Doukas has welcomed the latest judgement, saying it was a “win for commonsense”.

Cr Doukas said the developing company, The Sisters Wind Farm (a subsidiary of Wind Farm Developments), had never managed to obtain a single permit for the project.

Moyne Shire planning officers recommended the development should be approved when it first came before the council in July 2009, but it was unanimously rejected in a vote moved by Cr Colin Ryan and seconded by Cr Doukas.

That decision was subsequently upheld at two separate Victorian Civil and Administrative Tribunal (VCAT) hearings.

“For it to get off the ground now, they’d have to apply for a new permit under the new (state) guidelines and it would never be approved,” Cr Doukas told The Standard yesterday.

Cr Bernie Harris, who lives in the district, said the project should never have come before the council.

“It was a shit planning issue that shouldn’t have gone anywhere in the first place,” Cr Harris said.

Local resident Linda Kenna said she was “thrilled” with the Supreme Court’s decision to deny another appeal by the company against the shire’s decision.

“We hope this four-year saga is over once and for all,” Ms Kenna told The Standard yesterday.

“These continuous appeals have caused so much anxiety in our community that we cannot rest easy until the 28 days Wind Farm Developments have to appeal to the High Court has passed.”

At its first hearing, VCAT said the project should be rejected on the grounds of noise alone, and used a new 2010 New Zealand standard to assess the noise impact rather than the more lenient 1998 standard that was referenced in the shire’s planning scheme.

The Sisters Wind Farm took the case to the Supreme Court, which found the tribunal had made an error of law and should have considered the 1998 standard. The VCAT decision was subsequently set aside and a new hearing was ordered on the issue of noise impacts.

However, before the next VCAT case could be heard, the state government introduced major reforms to wind farm planning controls, replacing the 1998 noise standard with the 2010 standard.

The changes also gave land owners the right to veto proposed wind turbines being built within two kilometres of their homes.

The Sisters Wind Farm argued that VCAT should base its new decision on the old guidelines because they were still in force when the tribunal made its first decision which was erroneous.

But the tribunal declared it had to make its judgement based on the planning scheme that was in force at the time of its decision and would therefore use the new standard. The company then appealed to the Supreme Court but Justice Karin Emerton dismissed the case last Friday afternoon, saying the tribunal’s declaration was made correctly.

“This result may seem harsh for the appellant, which has been deprived of the opportunity to have its application for a planning permit determined by reference to the more lenient 1998 standard through an error by the tribunal in its first decision that was apparently brought about by incorrect submissions as to the applicable standard made by council,” Justice Emerton said.

“However, the result is a product of the statutory framework for the review of planning decisions by the tribunal or, as the council puts it, the ‘building blocks’ of planning law, the tribunal’s review jurisdiction and judicial review of administrative action in Victoria.”

In its first hearing, VCAT also commented on the social division caused in the small community by the wind farm proposal.

“We feel that whatever our decision, the damage has already been done and that relationships within the community may never be the same again,” it said.