INSIGHT

Solar farm wins court approval despite conflicts with planning schemes

By Bill McCredie, Rosanne Meurling
Energy Environment & Planning Litigation Renewables

In brief

The Queensland Planning and Environment Court has approved a solar farm located on good quality agricultural land despite high level conflicts between the proposed development and the provisions of the relevant planning schemes. Partner Bill McCredie and Special Counsel Rosanne Meurling review the decision.

Proposal

On 20 August 2018, the Planning and Environment Court (the Court) handed down its first decision about a solar farm in the case of Mirani Solar Farm Pty Ltd v Mackay Regional Council & Mackay Sugar Limited.

The application, by Mirani Solar Farm, sought a use approval for a solar farm and a reconfiguration approval for long-term leases to facilitate the construction of a solar powered power station capable of generating up to 60 MW and providing electricity for the equivalent of about 30,000 households. The application was for a solar farm with a lifespan of 40 years, at the end of which all structures would be dismantled and removed and the land returned to its natural state or in a better condition, so that it could be used for agricultural purposes.

The area of the total site is 229 ha, with the footprint of the solar farm occupying 165 ha and the balance of the site retained for agriculture. The site is classified as Class 3 good quality agricultural land (GQAL). It had been used historically for beef production, and was being used for sugarcane production. While the footprint of the solar panels would preclude the production of sugarcane, the solar panels would not preclude sheep being grazed on the land, including in and among the solar panels. The proposal to graze sheep was for land-management purposes.

The land is located in the Rural Zone of the Mirani Shire Plan (which was the planning scheme in force at the time the application and Council's decision were made). It is also located in the Rural Zone of the Mackay Regional Planning Scheme, which took effect in July 2017 (during the appeal hearing).

Despite Council officers recommending that the application be approved subject to conditions, the Council refused the application on concern regarding the loss of GQAL and no overriding need to locate the development on GQAL having been demonstrated.

Court findings

There was no contest regarding the land being GQAL.

Based on the evidence, the Court made the following findings, that favoured approval:

  • that the site was 'ideally suited for a proposal of the type intended' and that, on balance, there were no realistic alternative sites for a proposal of the type envisaged;
  • that the alienation of the land for 40 years would not have, or be likely to have, a measurable effect on the viability of Mackay Sugar or any other mill or associated enterprise;
  • that the proposed development would have no measurable impact on the sugar industry at either a state or regional level;
  • that the proposed development did not result in the fragmentation of the land; and
  • that the proposed use would not have irreversible impacts on GQAL.

The Court also made the following findings on the evidence that identified a material or significant conflict with the higher order provisions of both the Mirani planning scheme and the Mackay planning scheme:

  • that the land would be alienated from agricultural uses, although the alienation would not be permanent;
  • that the proposed development did not maintain, protect or utilise the land for agricultural purposes;
  • that the proposed development was an incompatible development, as it would restrict the existing and potential primary production capacity; and
  • that the productive capacity of the GQAL would be diminished, or restricted to the grazing of sheep.

Relevant matters

Despite the conflict with the planning schemes, the Court considered the benefits that would arise if the proposed development proceeded as being 'relevant matters' under section 45(5) of the Planning Act 2016.

Of importance to this consideration was State Planning Policy 2017's recognition of the development and supply of renewable energy as a matter of state interest.

The Court also referred to the Draft Queensland solar farm guidelines: Guidance for local governments. The Court found that the Draft Guidelines clearly contemplated that, in certain circumstances, it might be necessary to balance the competing interests of protecting GQAL and the development of large-scale solar farms.

The relevant matters that favoured approval can be summarised as follows:

  • the solar farm would not result in any negative amenity impacts;
  • there would be economic benefits during the construction phase of the solar farm, including job creation;
  • there would be wider community benefits associated with the proposed development of increasing the efficiency and reliability of the electricity supply and distribution network, the potential to place downward pressure on the cost of supply to consumers, the desirability in meeting national and state renewable energy targets, and more competition in the electricity generation/supply market in a way that reduces greenhouse gas emissions by reducing reliance on coal-fired power stations.

Based on the evidence, the Court found that these benefits were not outweighed by submissions in opposition to the effect that the need for solar development (if it existed) was abstract and policy-driven in the Mackay region context and was, in any event, being addressed by the solar development industry.

Outcome

The Court was ultimately satisfied, having undertaken a balancing exercise on the basis of the available evidence, that there was a need for the proposal that overrode the need to protect GQAL and that there were no alternative sites.

Lessons learnt

The decision illustrates the difficulty of the balancing act that must be undertaken by the Court where a proposed development is in significant conflict with the provisions of a planning scheme, and the importance of the evidence presented to the Court.

While the decision, in this case, was to approve the solar farm, the Court said that it might have been otherwise had there been evidence that the loss of the GQAL would have affected the viability of the sugar mills in the region or otherwise had a negative impact on the economy of the local government area.

The decision provides useful guidance for proponents of solar farms in rural areas about the range of matters that need to be considered. The decision does not, however, create a precedent, in that each application must be decided on the basis of its own facts and circumstances and in the context of the relevant planning scheme.