Court application to reclassify wind farm and battery energy storage facility in South Australia rejected

Concerned owner and occupier neighbours of RES Australia Pty Ltd's proposed Twin Creek Wind Farm and Energy Storage Facility have had their application for review of the State Planning Commission's decision to treat the development as a Category 2 development dismissed.

The decision of Judge Costello in David & Susan Shannon P/L & Ors v State Planning Commission & Anor [2019] SAERDC 10, handed down on 6 March 2019, rejected arguments for a change to the assessment category for the wind farm and energy storage facility to a Category 3 development which would have secured appeal rights for the Applicants.

Proposed development and categorisation

RES Australia Pty Ltd's Twin Creek Wind Farm and Energy Storage Facility is proposed to be constructed on a number of parcels of land located to the north-east of Kapunda (approximately 90km north-east of Adelaide) (Subject Land) and includes up to 51 wind turbine generators, on-site substation, operations and maintenance compound, temporary construction compounds (including concrete batching plant), underground electrical cables, overhead transmission line, terminal substation and a battery energy storage facility.

The Subject Land spans the three different local government areas of Light Regional Council, Goyder Council and Mid Murray Council and is located in the:

• Primary Production Zone and General Farming Policy Area 3 of the Development Plan for Light Regional Council;
• Primary Production Zone of the Development Plan for Goyder Council; and
• Rural Zone and Hills Policy Area 14 of the Development Plan for Mid Murray Council.

The Public Notification Tables in the Development Plans for the respective Councils all relevantly designate development for:

"wind farms and ancillary development such as substations, maintenance sheds, access roads and connecting power-lines (including to the National Electricity Grid)"

as Category 2 development for public notification and consultation where:

"the base of all wind turbines is located at least 2000 metres from an existing dwelling or tourist accommodation that is not associated with the wind farm".

Grounds for review

The Applicants, who were either landowners or occupiers of land in the immediate vicinity of the Subject Land, applied to the Environment, Resources and Development Court for orders that the State Planning Commission's decision to designate the proposed development as Category 2 development was incorrect and the proposed development should have been determined to be a Category 3 development on the following grounds:

• the bases of all the proposed turbines are not located at least 2,000 metres from an existing dwelling or dwellings, being dwellings that are not associated with the wind farm; and
• the proposed energy storage facility does not constitute a form of development which is ancillary to the wind farm.

With respect to the first ground of review, the Applicants submitted that there were seven "dwellings" which were situated less than 2,000 metres from the base of a wind turbine and are not associated with the wind farm because they are dwellings which are not:

• contemplated for use or development as part of the wind farm;
• proposed to be occupied in association with the wind farm; and
• associated with the wind farm in any other way aside from commercial arrangements made with the proponent of the proposed development whereby the owners and occupiers of the dwellings agree to the construction of the wind farm and presumably agree not to object to or oppose the proposed development.

With respect to the second ground of review, the Applicants submitted that the battery energy storage facility has an indicative capacity of 215 MW, will cover approximately 1.1 hectares and requires its own switch room, control building and car parking and is therefore of such a substantial scale that it represents a land use and/or activity in and of itself rather than it being ancillary to the wind farm.

As a consequence of the above, the Applicants submitted that the proposed development does not fall within the Category 2 development designation contained in the Public Notification Tables of the respective Council Development Plans and therefore, should have been publicly notified as a Category 3 development.

Category 2 versus Category 3 development

In accordance with the Development Act 1993 and Development Regulations 2008:

Category 2 development requires that written notice of the application be given to an owner/occupier of adjacent land to where the development is proposed. There are no appeal rights for an owner/occupier of adjacent land with respect to the approval of a Category 2 development; and

Category 3 development requires the following with respect to public notification and consultation:

• written notice of the application to be given to an owner/occupier of adjacent land to where the development is proposed;
• written notice of the application to be given to any other owner/occupier of land which the State Commission Assessment Panel believes would be directly affected to a significant degree by the development if it were to proceed; and
• notice to the public generally by way of a newspaper advertisement.

A person who is entitled to be given a notice of a decision in respect of a Category 3 development as described above may appeal to the Court against a decision to approve that development.

Application dismissed

In rejecting the Applicant's grounds for review and dismissing the application,  Judge Costello found that the proposed development was correctly designated as a Category 2 development within the meaning of the relevant Public Notification Tables for each of the three Council's Development Plans and the State Planning Commission’s decision to treat the proposed development as a Category 2 development was correct because:

Wind turbines located less than 2,000 metres from an existing dwelling

There are no turbines situated less than 2,000 metres from an existing dwelling that is not associated with the proposed development because:

• the Applicants accepted that two of the buildings they originally identified as being within 2,000 metres of the turbines were in fact a further distance;
• RES Australia Pty Ltd made an amendment to the proposed development to move one of the turbines so that it was in excess of 2,000 metres from one building, which of itself did not trigger Category 3 development public notification; and
• of the buildings located within 2,000 metres of a wind turbine:
  • one building, previously used as a Shearers’ Quarters, and the landowner's family home and manager's home, do constitute a dwelling for the purposes of public notification, however as a consequence of the contractual arrangements between the owners and RES Australia Pty Ltd, the owners are considered as stakeholders in the proposed development for the purposes of the Development Plans and therefore, the dwellings, in which they or their employees or contractors reside, are dwellings associated with the proposed development; and
  • the final building was not considered to have fallen within the definition of 'dwelling' as it is used for equipment storage and has not been habitable for over 20 years.

Battery energy storage facility ancillary to the wind farm

The battery energy storage facility is either, one element of the wind farm, or it is an ancillary to the wind farm because:

• the list of examples with respect to "ancillary development" in the Development Plans is indicative only and is not limited solely to the forms of development expressly identified;
• the battery energy storage facility will provide support to the function of the wind farm (Koker v City of Port Lincoln [2006] SASC 55); and
• the footprint and facilities of the battery storage facility compared to the wind farm as a whole, is unlikely to be determinative of the issue, but it does support the view that the battery energy storage facility is subservient or subordinate to the wind farm rather than a separate or independent form of development.

What this decision means

Whether or not a "dwelling" is associated with a wind farm and the types of development which are ancillary to a wind farm development in South Australia will require consideration of the relevant Development Plan.

Where a Development Plan lists examples of ancillary development or infrastructure, the list should not be considered as indicative only and not limited to those forms of development which are expressly identified (unless this is expressly stated).

When considering whether or not infrastructure is ancillary to a wind farm development, it will need to be considered whether it supports, or is independent of, the wind farm development.