Another wind farm challenger blown away by the ERD Court - David & Susan Shannon P/L & Ors v State Planning Commission & Anor [2019] SAERDC 10.

LG Leader March 2019

Wind farms and ancillary development in Primary Production Zones, Rural Zones and similar Zones are Category 2 forms of development provided that the base of all wind turbines is located at least 2 kilometres from (relevantly), an existing dwelling or tourist accommodation that is not associated with the wind farm.

This recent judgment concerned a large wind farm (known as the “Twin Creek” wind farm) proposed to be located within the Light Regional Council, the Regional Council of Goyder and the Mid Murray Council.

The SPC had determined that the development application was Category 2 for public notification purposes.  The Applicants argued that this decision was incorrect as, amongst other things they asserted that there were seven dwellings which were located within 2 kilometres from the base of a turbine and which were not “associated” with the wind farm.

The Applicants argued that, to be “associated” with the wind farm, it would not be enough for the owner of the dwelling to have an interest in the wind farm, but that the dwellings would need to have, essentially, a functional or operational association with the wind farm.

Importantly, the ERD Court found that the Applicants’ construction of the term “associated” was too narrow.  The ERD Court found that to be “associated” with a wind farm, the dwelling’s owner would need to be a stakeholder in the wind farm – i.e. a person who may have a turbine located on their land.

This judgment is of importance given that many rural land owners own more than one dwelling.  If a stakeholder in a wind farm owns more than one dwelling, each of their dwellings will not be material in determining whether a wind farm development is Category 2 or Category 3.

For more information please contact Victoria Shute  on 08   8113 7104 or at vshute@kelledyjones.com.au.