22nd August 2022
By Lizzie Hallam, The Hamilton Spectator
Source: https://spec.com.au/article/general/2022/08/22/wind-farm-warning/ (For Subscribers)
FOLLOWING the decision last Thursday by the Supreme Court of Victoria to reject arguments from the Applicant (“Association”) the People of the Small Town of Hawkesdale Inc., anti windfarm activist Viva-Lyn Lenehan of Killarney, has warned Victorian property owners to be fearful of the State Government.
Ms Lenehan penned a letter to the Editor regarding the recent case between the Association and the Minister for Planning, which stated that in planning disputes, people can no longer look to the law for protection.
“It’s a matter of law,” she said.
“The law is merely a default position and can be overwritten by a condition in the permit rendering the law powerless.”
Ms Lenehan said that Allan Myers QC was acting for the Association who stated that “the law is the law”.
But the Judges disagreed,” she said.
“They determined the law is subordinate to its instrument – the permit.”
Ms Lenehan claimed that The People of the Small Town of Hawkesdale lost because Section 62 of the Planning Act makes provision for a permit condition to override the law.
She claimed the Victorian Government strategically reduced the size of the small town of Hawkesdale by rezoning residential to rural, then under Section 62 of the Act applied a condition in an expired planning permit to remove the communities’ rights under Statute Law.
The Applicant is an incorporated association whose members are drawn from the township of Hawkesdale and the surrounding area in the Moyne Shire who have expressed extreme disappointment in the Supreme Court’s decision to uphold the original decision from August 2021, to approve the development of the wind farm.
The Association lodged the appeal against the original decision by the Planning Minister, to issue a permit for the development and use of land proximate to Hawkesdale as a wind farm.
The People of the Small Town of Hawkesdale Inc. president, John Bos said the Association was disappointed in the Supreme Court’s decision and believed the issue had become political.
“The way the government is doing things by basically saying they can go over and above legislation – is wrong,” he said.
“It should go above the Supreme Court and go Federally.”
Mr Bos said the reason the appeal was lodged was because the requirement to obtain signatures from the owner/occupiers of the four properties upon which the wind farm was proposed, wasn’t met.
“That wasn’t done, and the time limit had also expired,” he said.
“And the judge at the time, Justice Richards, agreed.
“We challenged the ministers’ powers to overrule that.
“But effectively, it doesn’t matter what the law says, the government can overrule it.”
Moyne Shire remains opposed to wind farm development until certain conditions are met.
Moyne Shire council mayor Ian Smith wants the government to hold further windfarm development at this point.
“We need a much more structured approach to windfarm development and that of the transmission line development in the western region,” he said.
“It needs a major overview.
“We want the government to have a much more focussed approach.”
In February this year, Moyne Shire Council denied allegations raised in emails from Ms Lenehan who claimed there had been secret involvement between the Shire and the Clean Energy Council (CEC).
Moyne Shire Councillor, Jim Doukas, raised the issue of the emails together with Cr Damian Gleeson, and said the issue was “serious” and asked chief executive Bill Millard to investigate and respond.
Ms Lenehan alleged the Shire had asked the CEC to help develop a “propaganda campaign” promoting wind energy in the shire.
Ms Lenehan alleged that the CEC set up a “secret” meeting to work on a strategy to promote wind farms in Moyne and change negative local perceptions.
In November 2018 Moyne Shire councillors voted to oppose any further wind farms in the Shire unless the Victorian Government adopted several recommendations from the national wind farm commissioner.
However, in her letter Ms Lenehan said a new precedent in planning had now been set.
“Once planning lawyers pick apart the judgement they will realise they are now redundant,” she said.
“Why would anyone bother engaging a planning lawyer when the law can’t protect them?”
The respondents are Global Power Generation Australia Pty Ltd and Hawkesdale Asset Pty Ltd respectively and are corporate entities with an interest in the development of the Wind Farm.
Mr Bos said further action by the Association was still to be decided, pending advice from their legal team.
“We’re just waiting to hear what our team will advise as to what we may be able to do going forward,” he said.
“Wind energy is fine, but it has to be done properly.”