Thinking Globally, Acting Locally
Renewable Energy in Court
Justice Nicola Pain
Judge Land and Environment Court of New South
Wales, Australia
12th IUCNAEL Colloquium
2014 – Universitat Rovira I
Virgili Tarragona, Catalonia,
Spain
“First, the extent to which sustainable energy technologies are
adopted in Australia and elsewhere depends on a variety of
largely unrelated factors. The most important of these are the
degree of research activity conducted by private and public
research institutions, the level of government assistance provided,
the economics of renewable energy and energy efficient
technologies, the degree of social acceptance of alternative
energy technologies and the level of public education in issues of
sustainable development. Another important, and sometimes
overlooked, factor is the role of the law.”
Rosemary Lyster, Adrian Bradbrook, Energy Law and the Environment,
2006, Cambridge University Press, at 2.4.1
“Planning law is the framework under which land use
conflicts are resolved through development controls
and is at the forefront of balancing local concerns and
development which address wider national and global
objectives.”
Lisa Caripis and Anne Kallies, “Planning away” Victoria’s renewable
energy future? Resolving the tension between the local and global in
windfarm developments, (2012) 29 EPLJ 415 at 417
Government Regulation





Delivery of national/state renewable energy
targets
Infrastructure legislation
Planning legislation
National/state or provincial planning
Local/municipal planning
Wind farms in VCAT
Perry v Hepburn Shire Council (2007) 154 LGERA 182
 Planning instruments included evaluation criteria for
wind farms
 Contribution to achievement of state and national
renewable energy goals recognised
 Tribunal took into account
• the benefits of renewable energy generation and
reduction of greenhouse gases
• identified limited data on benefits
• noise and visual impacts considered acceptable
• impacts on birds considered acceptable
Wind farms in VCAT (cont)
Bald Hill Windfarm Pty Ltd v Minister for Planning [2012]
VCAT 1092
 Applicant for consent had existing permits but required
ministerial approval of development plans
 Minister delayed in approving
 Minister’s case that the court action premature not
accepted
 Noise criteria could be met at neighbouring properties
Wind farms in VCAT (cont)
Cherry Tree Wind Farms Pty Ltd v Mitchell Shire
Council [2013] VCAT 521
 Visual impact of wind farm acceptable
 Main issue whether human health effects
resulting from low pressure frequencies
 Proceedings adjourned to enable more
investigation pending outcome of inquiry by SA
EPA
Wind farms in ERD court of SA
Quinn v Regional Council of Goyder & Anor [2010] SAERDC 63
 Third party objector appeal against development consent for wind
farm by local council
 Planning controls included state wind farm assessment factors
 Local plan required that weight be given to visual impact on
landscape character of development
 Issues of visual amenity and noise impacts
 Held that some areas of state had such significant landscape
quality a wind farm was not appropriate/impact in this area of
primary production acceptable
Wind farms in ERD court of SA
(cont)
Paltridge v District Council of Grant [2011] SAERDC 23
 Third party objector appeal against decision to approve wind farm.
 Land zoned primary industry with objectives of maintaining the
rural landscape
 Court acknowledged state government policies aimed at reduction
of greenhouse gases and promotion of renewable energy; focus of
assessment was the local council development plan
 Issues of noise including infrasound, health impacts and visual
amenity
 Possible noise and health impacts not established
 Wind farm refused because of the large number of discordant
visual elements introduced into the landscape by the turbines
Wind farms in the LEC
Taralga Landscape Guardians Inc v Minister for Planning and RES
Southern Cross Pty Ltd [2007] NSWLEC 59; (2007) 161 LGERA 1
 Third party objector appeal against state significant development
 Local council planning controls not mandatory
 Policy context recognised by the Court as supporting renewable
energy generation in sustainable development principles including
intergenerational equity, national mandatory renewable energy
target
 Issues of noise, visual impact considered
 Held that overall public benefit outweighed any private disbenefits
to the Taralga community or specific landowners
Wind farms in the LEC (cont)







King v Minister for Planning; Parkesbourne-Mummel Landscape
Guardians Inc v Minister for Planning; Gullen Range Wind Farm Pty
Limited v Minister for Planning [2010] NSWLEC 1102
Third party objector appeals against state significant development
Local council planning controls not mandatory/local planning control
requiring minimum 2 km distance of turbines from houses not warranted
Issues of noise, blade flicker, unacceptable visual impact, inadequate
provision for land acquisition or compensation
Impact acceptable
Economic benefit of development in the community through provision of
jobs recognised
Desirability of encouraging renewable energy as recognised in Taralga
and in light of increasing scientific evidence from bodies such as IPCC
Requirement of community enhancement program as part of conditions of
approval
Wind farms in the Environment
Court New Zealand
Consideration of landscape significance well developed







Pigeon Bay Aquaculture Ltd v Canterbury Regional Council [1999]
NSRMA 209 (Env C)
the natural science factors – the geological, ecological and dynamic
components of the landscape;
its aesthetic values including memorability and naturalness;
its expressiveness (legibility): how obviously the landscape
demonstrates the formative processes leading to it;
transient values: occasional presence of wildlife; or its values at certain
times of the day or of the year;
whether the values are shared and recognized;
its value to tangata whenua;
its historical associations.
Wind farms in the Environment
Court New Zealand (cont)
Pigeon Bay factors applied in many cases
Unison Networks Ltd v Hastings District Council (2009)
NZEnvC W11/2009 23 February 2009
 Visual impact on Te Waka range considered
Rangitikei Guardians Society Inc v ManawatuWanganui Regional Council [2010] NZEnvC 14
 Visual impact on Tongariro National Park including
Mr Ruapehu considered
Wind farms in Ontario
Hanna v Ontario (Attorney General) 2010 ONSC 2660 (Ont. Div. Ct.)
 unsuccessful judicial review challenge to making of regulation
under the Environment Protection Act which mandated a minimum
distance between wind turbines and residential homes
 whether the Minister applied a precautionary, science-based
approach in decision-making to protect human health and the
environment in making the regulation
 applicant relied on medical evidence to support a submission of
scientific uncertainty about the health effects of industrial wind
turbines to argue that the precautionary principle required
resolution of that scientific issue before setting regulatory
standards
Hanna v Ontario (Attorney General)
2010 ONSC 2660 (Ont. Div. Ct.) (cont)






The Supreme Court identified long-standing policy of Ontario
government to reduce annual greenhouse gas emissions including
by replacing coal-fired electricity generation by increasing
renewable energy sources such as industrial wind turbines
Minister required to consider numerous principles not
precautionary principle alone
Health considerations of persons living in proximity to wind
turbines while important did not trump all other considerations
Availability of appeal rights for dissatisfied landowners to the
Environmental Review Tribunal relevant
Minister had followed the process mandated requiring full public
consultation and considered science-based evidence in his
decision
Application of precautionary principle did not preclude decision of
Minister
Wainfleet Wind Energy Inc v Wainfleet
(Township) 2013 ONSC 2194



Unsuccessful judicial review challenge to town
by-law requiring setback for wind turbines of
two kilometres from property
Court held property was broadly defined and
too uncertain to enable effective interpretation
In obiter reasoning the Court considered the
provincial law in the GEA and amendments
made to the EPA Act and Planning Act to
facilitate renewable energy projects
Wind farm cases




Balancing global benefits with local concerns
Evolving controls developed across jurisdiction
Expertise of different jurisdictions drawn on
Extent of dominance of local views
Geothermal energy projects in the
Environment Court New Zealand
Rotokawa Joint Venture Limited and Mighty
River Power Limited and Taupo District Council
v Waikato Regional Council EnvC Auckland
A41/2007
 Renewal of consent to operate two geothermal
power plants, one of which third oldest plant in
the world dating from 1958
Solar panels in VCAT
John Gurry & Associates Pty Ltd v Moonee Valley CC [2013] VCAT 1258
proposed development of 14 dwellings in Melbourne suburb
 Objection due to overshadowing of neighbour’s solar panels
 Factors to consider in assessing whether unacceptable overshadowing
• whether the impact is reasonable rather than requiring no overshadowing at all
• what constitutes legitimate expectations in light of strategic planning controls and
policies affecting the land
• whether the solar panels have been placed in an unreasonably vulnerable
position on the host building.
• whether the placement of solar panels on the host building due to constraints
arising from heritage controls
• the type of panel and what its operation required
• the extent of evidence of overshadowing and how long ago were the existing
solar panels installed on the host building.