Solar farm prevails over good quality agricultural land

25 September 2018
Stafford Hopewell, Special Counsel, Brisbane

In Mirani Solar Farm Pty Ltd v Mackay Regional Council & Anor [2018] QPEC 38, the Planning and Environment Court was required to determine whether a large scale solar farm development should be approved on land comprising Good Quality Agricultural Land (GQAL).

The proposed solar farm was intended to be for a ‘limited’ period of 40 years with a footprint of approximately 165 hectares. The site was currently being used for sugar cane production and had also previously been used for cattle grazing. However, it was common ground that, apart from some limited ability to graze sheep, the proposed development was incompatible with rural production on the land during the life of the solar farm.

Council officers had recommended that the proposed development be approved subject to conditions but the Council, in a split decision decided by the casting vote of the chair of the Council committee, resolved to refuse the development due to the loss of GQAL and the failure to demonstrate an over-riding need to place the facility on GQAL.

The appeal in the Planning and Environment Court focused on the following key issues:

  • whether the development should be approved or refused having regard to its impact on GQAL and associated primary production;
  • whether the development should be approved or refused having regard to the following matters
    • the benefits of renewable energy;
    • any need for the development;
    • the absence of amenity impacts; and
    • other matters of public interest.

The central issues in turn revolved around whether the development would result in the alienation of GQAL and, if so, whether there was an overriding need in the public interest for the development.

Having regard to the expert evidence, the Court held that:

  • the subject land is GQAL; and
  • the proposed development would prevent the use of the land for agriculture or cropping.

Accordingly, the Court was satisfied that the proposed development was in conflict with the Council’s local planning instruments. The determining issue in the appeal was therefore whether there was an overriding public interest need and no other suitable land for the solar farm.

In terms of alternate sites, the evidence before the Court was the land was the only suitable site for a large scale solar farm. As such, the Court had no hesitation accepting that there was no other suitable land.

With regard to whether there was an overriding public interest, the Court accepted that there were both significant economic and wider community benefits associated with the proposed development.

Ultimately, while recognising that the protection of GQAL was a matter of significance, the Court’s role was to conduct a balancing exercise and the Court was comfortably satisfied that the balance lied in allowing the appeal and approving the proposed development.

Key takeaway

Where a proposed development is in conflict with a planning instrument, a balancing exercise is required. This will require consideration of whether the benefits of the proposed development outweigh the negative impacts.

Authored by: 
Stafford Hopewell, Partner
Sarah Day, Associate

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

Get in touch