Planning and Environment Court decides that the public interest in the approval of a solar farm overrides the need to protect Good Quality Agricultural Land

In brief

The case of Mirani Solar Farm Pty Ltd v Mackay Regional Council & Anor [2018] QPEC 38 concerned an appeal to the Planning and Environment Court against the decision by the Mackay Regional Council (Council) to refuse development applications to facilitate a solar farm on land 2.5km north-west of the Mirani township area (subject land). Mackay Sugar Limited elected to be a Co-respondent in the appeal.

The Council assessed the solar farm against the Mirani Shire Plan (Mirani Plan). However, the reasons for refusal relied upon relevant provisions of the Mackay Regional Planning Scheme (Mackay Plan).

The Court considered the following issues in the appeal:

• Issue one - Whether the solar farm was in conflict with the planning schemes.
• Issue two - Whether the solar farm would have an adverse impact on the sugar industry.
• Issue three - Whether there were other relevant matters to justify approval of the proposed development.

The Court held that the subject land was good quality agricultural land (GQAL) and that there was not a suitable alternative site.

The Court held that although the solar farm was in conflict with the planning schemes, the benefits of renewable energy were an "other relevant matter" sufficient to support the approval of the solar farm. The Court therefore allowed the appeal. 

Issue one - Whether the proposed development was in conflict with the relevant planning schemes

The Court was required to consider if the solar farm relevantly conflicts with the following planning schemes:

(a) Under the Mirani Plan:

Specific Outcome 1 – GQAL is protected for agriculture or other forms of primary production and that GQAL is protected from incompatible development.

Specific Outcome 3 – Productive capacity of GQAL should not be fragmented, alienated or diminished by a development.

(b) Under the Mackay Plan: 

Performance Outcome 1 – Productive capacity of GQAL should be maintained and protected during development, unless there is an overriding public interest or no alternative site.

Performance Outcome 3 – After temporary use of GQAL, the land should be rehabilitated to previous condition.

Firstly, the Court considered whether the development of a solar farm for 40 years diminished or restricted the agricultural capacity of the GQAL, or resulted in irreversible harm. The Court decided a proposed development of 40 years did not maintain GQAL for an agricultural purpose. Where the land could produce sugar cane and beef, the proposed development would diminish and restrict the agricultural industry to sheep grazing, solely to maintain grass. Moreover, sheep grazing was not the primary industry of the solar farm project. However, the Court accepted evidence that the proposed development would not create irreversible harm.

Secondly, the Court considered whether the solar farm would result in the alienation or fragmentation of GQAL. The Appellant argued that because the solar farm was for a fixed-term and allowed for agricultural uses, being sheep grazing, it did not alienate GQAL.

The Court rejected these arguments and held that 40 years was a significant period for GQAL to be taken out of agricultural use. The Court concluded that the solar farm would alienate GQAL for an extensive period from its agricultural purpose and would divert it to a public utility and low order agricultural uses. Thus, there was a material conflict with the planning schemes.

Issue two - The proposed development would have an adverse impact on the sugar industry

The Co-respondent argued that the solar farm would have an adverse impact on the sugar industry, which is a major part of the Mackay economy.

The Co-respondent submitted that the solar farm would reduce the available land for sugar cane production in the Mackay local government area by 0.08%. The Court held that this loss would not have a significant impact on the viability of the sugar cane industry in Mackay, even over a 40-year period.

However, the Court accepted the Co-respondent's "thin edge of the wedge" argument that the industry will be adversely impacted over time if the incremental erosion of GQAL is permissible.

The Court held that the preferred test for determining whether there would be an adverse impact is to consider the extent of the alienation and fragmentation caused by the proposed development and not the loss of physical area.

The Court held that the land would be alienated as a result of the proposed development in conflict with the relevant planning schemes. Therefore, the Co-respondent's argument succeeded in this respect.

Issue three - Whether there were other relevant matters to justify approval of the proposed development

The Court considered whether, under section 45(5) of the Planning Act 2016 (Qld), there were any other relevant matters that justified approving the proposed development. 

The Court concluded that there was policy support at a State, regional and local level for the protection of GQAL. The Court also concluded that the need for renewables is not currently addressed by the solar power industry, and that approval of the solar farm would have long-term benefits and no negative amenity impacts. 

In weighing up the competing conclusions, the Court held that the long-term benefits of protecting GQAL were finely balanced with the benefits that would result from the solar farm. The Court found that the solar farm would benefit the Mackay local government area through 100 jobs created over the 12-month period of establishment. The Court also placed weight on the wider community benefits of increased efficiency and reliability of electricity supply and distribution: the maximised use of Mackay's existing electricity grid's capacity, the contribution to the local region's electricity demands, cost-effective electricity supply, and the desirability of meeting national and state renewable energy targets.

The Court concluded that the solar farm would make a meaningful and positive contribution to electricity supply and price reduction. Thus, the Court held that the Co-respondent's "thin edge of the wedge" argument only went so far given the overwhelming positives of the solar farm, where there was only a minor impact to the Mackay sugar industry.

Conclusion

The Court found that the balance lay in favour of approving the solar farm, as the need for the solar farm overrode the need to protect GQAL where no alternative site was available. The Court held that the benefits of the solar farm would outweigh the temporary loss of GQAL, even if the loss was for 40 years, as there was an overriding need in the public interest and no alternative site was available.