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Judge in favour of Middletons in Gullen Range case

Law firm Middletons saw victory in the Land and Environment Court on Friday as the Court approved the construction and operation of its client Epuron's 73 turbine wind farm on the Gullen Range.

user iconThe New Lawyer 10 May 2010 The Bar
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LAW firm Middletons saw victory in the Land and Environment Court on Friday as the court approved the construction and operation of its client Epuron’s 73 turbine wind farm on the Gullen Range.

Middletons acted for Gullen Range Wind Farm, a subsidiary of Epuron, in its successful defence of an objector's appeal against the Minister's approval of one of the New South Wales’ larger wind farms.

The Gullen Range Wind Farm could supply renewable energy for up to 73,500 average NSW homes and reduce gas emissions in the state by up to 588,000 tonnes of CO2 equivalent per annum.


Middletons' senior associate, Antoinette Migliorino said of the case: "The Court approved the wind farm project finding that the overall impact of the project on the public and individual landowners was acceptable, and made numerous findings dealing with some highly contentious issues raised by wind farm opponents and recently the NSW Legislative Council."

A local objectors group comprising around 40 landowners, as well an individual landowner, had commenced two appeals against the project in August 2009. They were seeking refusal of the entire project or alternatively some form of acquisition or monetary compensation.

Migliorino said: "The court undertook the enormous task of assessing the visual, noise and shadow flicker impacts on around 30 individual properties and numerous public viewpoints - ultimately concluding that the proponent be given the option of either acquiring 13 properties (5 more than required by the Minister's original approval) or alternatively deleting a number of turbines."

Migliorino said the case is "a major win for wind farm proponents in NSW".

"The court held that the Development Control Plan (DCP) requiring a 2km setback of turbines from any dwelling was not a relevant consideration for this form of development. If such a condition was applied a large number of turbines would have been arbitrarily deleted from the project.

"Numerous demands by surrounding landowners seeking monetary compensation for alleged devaluation of their properties were unequivocally rejected by the court (the Chief Judge's views in RES Southern Cross v Minister for Planning were adopted).

"Contrary to the requirements of the DCP, the court clarified the basis upon which community contributions should be calculated in this case – that is, based upon the number of turbines constructed rather than the local Council's preference for a contribution based upon generation output capacity."

Senior Commissioner Moore and Commissioner Fakes delivered their 180 page Judgment on Friday morning, last week. The parties now will formulate conditions of consent based upon the Judgment. The proceedings are next before the court on 27 May 2010.

Middletons is the only law firm to have been involved in all wind farm appeal proceedings in NSW.

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