Green Gold Energy v Minister of Planning – Renewable Energy Facilities in Declared Irrigation Districts

Edward Mahony
14 February 2022

John Cicero and Edward Mahony of our office recently successfully represented the Permit Applicant in Green Gold Energy Pty Ltd v Minister for Planning [2022] VCAT 118 (Green Gold), a case where the Tribunal directed a permit to issue for a 21 hectare solar energy facility located within the Goulburn Murray Irrigation District (GMID), despite opposition from a number of government departments. Relevantly, the site was previously used as part of a larger dairy farm operation had an irrigation channel abutting it. 

What were the issues in this proceeding? 

The Minister for Planning (Minister) and Secretary of Department of Environment Land Water and Planning (Secretary of DELWP) were independently legally represented at the hearing of this matter and called expert evidence in the disciplines of town planning, agricultural and economic evidence. In opposing our client’s application, they relied on the grounds that the proposed land use change from a farming use to renewable energy was contrary to the Victorian Planning Provisions (VPP). 

These grounds were agitated on the basis that the proposed solar energy facility would result in the loss of productive, state-significant agricultural land and would undermine the viability and integrity of the GMID. A significant portion of the six-day hearing focused on the gazettal of planning scheme amendment VC161 which inserted clause 14.02-3S in the VPPs, seeking to protect agricultural land serviced by irrigation infrastructure. 

The Minister and Secretary of DELWP argued that the site was an important component of the future of the GMID and that: 

“The removal of part of this production base to non-agricultural uses, no matter how insignificant that removal may seem, is an ongoing threat to the long-term viability of the district.”

What did Best Hooper argue? 

On behalf of the applicant, Best Hooper successfully argued that the proposed solar energy facility would not jeopardise the efficiency of the GMID considering, amongst other things that: 

• The site did not currently utilise the existing irrigation infrastructure abutting it nor were any delivery shares connected with the site;
• The use of the site for a solar farm did not permanently remove the land from agricultural use;
• The application did not affect the ability for downstream properties to be irrigated; and
• The proposal did not jeopardise the future viability of the irrigation district. 

What was the decision of Tribunal and why is this relevant? 

When assessing the planning permit application against the strategies for the protection of declared irrigation districts at clause 14.02-3S, the Tribunal accepted Best Hooper’s submissions and the evidence called on behalf of the applicant. 

This is an important decision which provides guidance in interpretating planning scheme amendment VC161 and for all renewable energy applications within declared irrigation districts. 

Please contact John Cicero or Edward Mahony of our office should you wish to discuss the merits of your renewable energy project.