VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1029/2023
Permit Application no.PA2201955 	
CATCHWORDS	
Solar energy facility/solar farm; Abutting farm objecting; Relevance and weight of considerations; Relevance of Aboriginal cultural heritage policy; Need for facility; Location of facility in light of future Renewable Energy Zones; Impact on Aboriginal cultural heritage; Loss of agricultural land; Visual impact on surrounding public and private land.	

Applicant	Sophie Paterson	

Responsible Authority	Minister for Planning	
Respondent	BL Maffra Solar Nominees Pty Ltd as trustee for BL Maffra Solar Trust	

SUBJECT LAND	Lot 13 TP23981 Maffra-Briagolong Road & Maffra-Briagolong Road Reserve
MAFFRA VIC 3860	

HEARING TYPE	Hearing	

DATEs OF HEARING	18, 19, 20, 21 & 22 March and 17 April 2024	

date of interim order	22 April 2024	
DATE OF final ORDER	19 August 2024	
Paterson v 
CITATION	Paterson v Minister for Planning [2024] VCAT 761	

Order
Amend permit application 
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by substituting some of the permit application plans and by adding new plans filed with the Tribunal:
Substituted plans		
Prepared by:	BNRG	
Drawing numbers:	Maffra Site Context, Maffra Site Layout, 
Tracker Elevation	
Dated:	1 February 2024	
New plans		
Prepared by:	Peter Haack Consulting	
Drawing numbers:	Landscape Amelioration Plan Maffra Solar Farm, Plant Palette & Set-Out Maffra Solar Farm, Details Maffra Solar Farm	
Dated:	2 February 2024	
Permit granted
2	In application P1029/2023, the decision of the responsible authority is varied. 
3	In planning permit application PA2201955 a permit is granted and directed to be issued for the land at Lot 13 TP23981 Maffra-Briagolong Road & Maffra-Briagolong Road Reserve Maffra VIC 3860 in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	Construction of buildings and the construction and carrying out of works and the use of land for the purpose of a renewable energy facility in the Farming Zone
•	Display of a business identification sign in the Farming Zone
•	Removal of 3.97 hectares of native vegetation including four large trees

Rachel Naylor
Senior Member			

Table of Contents
Order
Appearances
Information
Reasons
Overview
Some preliminary and procedural issues
The Tribunal’s jurisdiction in this proceeding
Relevant and irrelevant considerations
Weight given to Andrew Paterson’s evidence statement
The giving of Mr Mullett’s evidence
Consideration of the merits of the proposal
Need for facility
Location of solar energy facility in light of future strategic planning
Impact on Aboriginal cultural heritage
Loss of agricultural land and impact on surrounding agricultural land
Visual impact of the proposal
What conditions are appropriate?
Conclusion
Appendix A – Permit Conditions
Conditions

Appearances
For applicant for review (Sophie Paterson)	Barnaby McIlrath, solicitor of PE Law

He called the following expert witnesses:
•	Mr Glenn Marriott, agricultural scientist of Ag-Challenge Consulting Pty Ltd gave agricultural evidence; and
•	Mr Tim Vernon of CDA Design Group gave landscape and visual amenity assessment evidence.

He also called the following lay witnesses:
•	Mr Andrew Paterson; and
•	Mr Russell Mullett, manager of the GunaiKurnai Land and Waters Aboriginal Corporation’s Registered Aboriginal Party	
For responsible authority (Minister for Planning)	Nicholas Crawford, solicitor of TP Legal	
For respondent permit applicant (BL Maffra Solar Nominees Pty Ltd)	Joanne Lardner of counsel instructed by S&K Planning Lawyers

She called the following expert witnesses:
•	Dr Michael Green of Eco Logical Australia Pty Ltd gave indigenous cultural heritage impact management evidence;
•	Mr James Shovelton, agricultural scientist of Meridian Agriculture gave agricultural evidence; and
•	Mr Peter Haack, landscape architect of Peter Haack Consulting gave landscaping and visual amenity assessment evidence.

Ms Lardner also relied on an affidavit by Megan Schroor, solicitor of S&K Planning Lawyer.  None of the other parties or the Tribunal wished to cross-examine Ms Schroor about the content of this affidavit.  Given this, the affidavit was tabled and relied upon and otherwise ‘taken as read’.    	
Information
Land description	The site has a rectangular shape with a 603.5m frontage to Maffra-Briagolong Road, a 907.3m depth and an area of 53.7 hectares.  The site is bisected by the Southern Rural Water (SRW) uncovered irrigation channel. 	

Title details extracted from paragraph 5 of the Minister’s submission
	
	The area of the site that is the subject of this proposal is on the west side of the SRW channel, covering about 12 hectares (refer to the blue area in the extract on the left from page 7 of Minister’s submission).	
Description of proposal	Use and development of a 4.99 megawatt (MW) solar energy facility, utility installation and ancillary infrastructure with the removal of native vegetation, the display of business identification signage and the creation and alteration of access to Maffra-Briagolong Road.
It will comprise a maximum of 12,000 photovoltaic (PV) modules on tilt trackers with a maximum tilt of 60 degrees (east to west) and resting angle of 0 degrees.  The substituted amended plans reduce the full tilt panel height from 5.147m to 2.964m.
The northern boundary has a 5m setback to new fencing surrounding the facility.  Landscaping is within this setback.  A 10m fire break that also contains a perimeter road is provided on the inside of the landscape strip.	
Plans before the Tribunal (being a mix of permit application plans, substituted amended plans and new plans)	Maffra Existing Site Conditions dated 29.03.23, Maffra Solar Farm Vegetation in Study Area dated 13.04.23, Maffra Site Context dated 01.02.24, Maffra Site Layout dated 01.02.24, Maffra Section Drawing dated 18.04.23, Elevations dated 20.10.22, Typical Access to Rural Properties July 2022, Tracker Elevation dated 01.02.24, SG4950HV-MV Elevation dated 24.06.22, BESS Elevation dated 23.06.22, BNRG Leeson Solar Farm – Site Signage Dimensions undated, Landscape Amelioration Plan dated 02.02.24, Plant Palette & Set-out dated 02.02.24 and Landscape Details dated 02.02.24	
Nature of proceeding	Application under section 82 of the Planning and Environment Act 1987 (Vic) – to review the decision to grant a permit.	
Planning scheme	Wellington Planning Scheme	
Zone and overlays

Extract from paragraph 17 of the Minister’s submission showing the BMO affected area on the site (red line)	The site
Farming Zone (FZ)
Part of the land is affected by a Bushfire Management Overlay (BMO) (Refer to the extract on the left)
Irrigation channel
Public Use Zone Schedule 1
Maffra-Briagolong Road
Transport Road Zone Category 2 (TRZ2)

The proposal is defined as a ‘renewable energy facility’ in the planning scheme.	
	
Extract from Planning Property Report at page 27 of Tribunal book 	
Permit requirements

* This permission is exempt from review by an objector under section 82 of the Planning and Environment Act 1987 (Vic) (P&E Act)	Clause 35.07-1  To use land for the purpose of a renewable energy facility in FZ
Clause 35.07-4  To construct a building and to construct or carry out works associated with a permit required land use in FZ (subject to exemptions that do not apply in this case)
Clauses 35.07-7 & 52.05-14  To display a business identification sign with total display area not exceeding 3 sqm in FZ
Clause 52.17-1  To remove 3.97 hectares of native vegetation including four large trees
*Clause 52.29-2  To create and alter access to a road in TRZ2	
Aspects of proposal exempt from planning permission	The Battery Energy Storage System (BESS) is exempt as a land use under clause 62.01 as it is connected to a section of the electricity distribution network operating with nominal voltage not exceeding 66,000 volts.  The associated buildings and works are also exempt under clause 62.02-1.
Directional signage is exempt.
Car parking is to be provided to the satisfaction of the Responsible Authority under clause 52.06-6.  The Minister for Planning is the Responsible Authority and is satisfied there is ample room for informal parking on the proposed roads, within the fire break buffers and in the area of the BESS and switch room.	

Reasons
Overview
1	Sophie Paterson (the Applicant) seeks a review of the decision by the Minister for Planning (the Minister) to grant a permit for the development and use of a solar energy facility on the land at Lot 13 TP23981 Maffra-Briagolong Road, Maffra (the/this site).  
2	The Applicant has a farming property that abuts the north, east and south boundaries of this site.  The Applicant opposes the proposed solar energy facility.  The Applicant has made submissions about the interpretation of policy and identifies the following key questions as being required to be addressed in this review application:
a) 	Is the proposal acceptable under the Farming Zone?
b) 	Does the proposal fail to respond adequately to policy for agriculture at clause 14?
c) 	Is the impact on the natural and cultural landscape acceptable?
d) 	Is the proposal compatible with the reasonable use and development of the Applicant’s land?
e) 	Would the proposal result in an unacceptable landscape context for the registered grinding grooves, having regard to clause 15.03 of the Scheme?
f) 	Does the proposal respond acceptably to policy for biodiversity at clause 12.01?
g) 	Is the site inappropriate due to its proximity to the Maffra township and future planned expansion of the town?
h) 	Does the proposal respond acceptably to the Solar Energy Facilities Development and Design Guidelines (October 2022)?
i) 	Is the proposal inappropriate energy supply infrastructure due to its location outside of planned Renewable Energy Zones?
j) 	Does the proposal represent net community benefit or integrated planning?
3	BL Maffra Solar Nominees Pty Ltd as trustee for BL Maffra Solar Trust (the Respondent) highlights this proposal will produce enough electricity to power the equivalent of about 1,500 to 2,500 Victorian homes per year on average (depending on conditions).  The Respondent orally submits the Tribunal has previously held in other solar energy facility cases that there is a balancing act required given there is support in the Victorian Planning Provisions for renewable energy including solar energy as well as for the protection of productive agricultural land.  However, the Respondent points out there is a dispute in this case about whether this site is productive agricultural land.  The Respondent submits the site is not currently productive and describes the proposed solar energy facility as being ‘a benign farming use’.  The Respondent submits the Applicant has raised several irrelevant matters and relies on evidence that is irrelevant (i.e. parts of Mr Paterson’s evidence) or extending beyond the area of expertise of the witness (i.e. parts of Mr Vernon’s evidence).  The Respondent submits its submissions, evidence and materials present support the grant of a permit for this proposal.  
4	Having considered the Applicant’s issues and key questions as well as the submissions and evidence presented by all parties, I have decided to grant a permit.  The reasons for my decision firstly outline some of the preliminary and procedural issues that arose during the hearing, including about the Tribunal’s jurisdiction and the relevance of some of the issues and evidence presented in this proceeding.  This part of the reasons for my decision is not to be taken to be a comprehensive record of all preliminary and procedural matters that arose during the hearing.  The matters that I have highlighted in this part are because they have some relevance to the way the key questions and submissions have been considered.  The reasons for my decision then consider the merits of the proposal in light of the concerns expressed by the Applicant.  
Some preliminary and procedural issues
The Tribunal’s jurisdiction in this proceeding
A section 82 application may have limited Tribunal’s jurisdiction
5	This is a section 82 application by an objector to review the Responsible Authority’s decision.  A section 82 application lodged with the Tribunal by an objector can mean that the Tribunal’s consideration of the planning application may be limited.  This occurs when a permit applicant has lodged an omnibus permit application that captures all the necessary planning permissions for a proposal, but some of those planning permissions are exempt from public notice, third party objection rights and/or review rights in the planning scheme.  What this can mean for the Tribunal’s consideration of a proposal and for the practicalities of an integrated omnibus permit application is explained in Dance v Colac Otway SC [2024] VCAT 443 (Dance).  To the extent that this proceeding has similarities in terms of there being limitations about the relevant considerations and the practicalities arising from an integrated omnibus permit application, I rely on the explanation given in Dance.  
6	In this proceeding:
a	I have an omnibus planning application that includes all the necessary planning permissions to enable this proposed land use and development to proceed.
b	The Minister issued a Notice of Decision to Grant a permit (NOD) for all the planning permissions on 21 July 2023.
c	One of the planning permissions is exempt from objector participation under the P&E Act, being the permission to create and alter access to Maffra-Briagolong Road under clause 52.29 of the planning scheme.
d	The NOD contains conditions 48 to 59 that were required by the Head, Transport for Victoria in response to referral of the planning application under clauses 52.29 and 66.03 of the planning scheme. 
e	The Respondent permit applicant has amended the permit application that I am considering as it has substituted some plans and added new plans.  To be clear, this amended version of the permit application does not apply to the part of the permit application that has planning permission granted under clause 52.29.  I note the description of the changes made to the permit application does not include any changes relevant to the access arrangements to/from the site from Maffra-Briagolong Road.  I also note the changes to the permit application do not create any consequential impacts for the proposal’s proposed access arrangements.  The Respondent permit applicant acknowledges that notations describing the access arrangements have fallen off the substituted amended plans and should be put back on as a permit condition.  
f	In these circumstances, I have decided to give weight to the Minister’s decision to grant permission under clause 52.29 as the amended proposal before me remains generally consistent with the permit application in regard to the provision of, and arrangements for, vehicle access to the proposed solar energy facility.
7	Later in these reasons I will make findings about an issue associated with the Head, Transport for Victoria’s permit conditions and the practicalities that will be necessary to address this.  
Amendment VC261 has removed objector review rights for renewable energy facilities
8	During the hearing, Amendment VC261 came into effect in the planning scheme on 4 April 2024.  It expanded the operation of the existing Development Facilitation Program planning provisions at clause 53.22 that fast-track the assessment of significant economic development by enabling applications for renewable energy facilities and associated utility installation to be assessed through this program.  These applications for renewable energy facilities are exempt from third party review rights.  The parties all agree this Amendment does not impact upon the Tribunal’s jurisdiction to determine this proceeding.  
Relevant and irrelevant considerations
9	As already mentioned, the Applicant’s submission refers to a range of issues including renewable energy policy, agriculture policy, climate change strategy, highest and best use of the site, Aboriginal cultural heritage, biodiversity policy, future expansion of Maffra township, etc.  
10	There was an absence of any real opposition to the Tribunal considering the range of issues or any particular issue identified by the Applicant in this case.  Rather, the Minister and the Respondent made submissions about which issues they considered to be relevant or irrelevant and the associated weight that should be afforded to them.  Hence, in this proceeding, the parties are content for the Tribunal to determine which issues are of greater weight, lesser weight or of no weight in terms in deciding whether a permit should be issued and what permit conditions should be imposed.
The Responsible Authority decides the relevance of issues
11	The Respondent and the Minister have each made submissions about the relevance or otherwise of parts of the Applicant’s submissions and evidence.  The number and variety of the issues raised by the Applicant could perhaps be perceived as ‘throwing the kitchen sink’ at this proposal.  However, there is nothing unusual about such an approach by an objector to a planning application.  The planning scheme, including its planning policy framework (PPF), is a very broad document seeking to capture ‘aspects of environmental, economic and social wellbeing affected by land use and development’.  Within this broad spectrum, an objector may wish to raise all manner of issues that they consider may have relevance to the potential impacts of, and the acceptability of a proposal.  Deciding on the relevance of the issues raised by objectors is a skill that town planners working for Responsible Authorities practice daily as they process and consider the merits of planning applications.  It is not unusual for issues raised by objectors to be categorised by the Responsible Authority in a range extending from being of no relevance to having a lot of relevance to the consideration of the merits of a planning application.  The relevance of issues in a planning application is never clear cut.  The relevance of issues will depend upon the nature of a particular proposal, the context of the particular site and its surrounds, and the content of the PPF.  
Relevance of Aboriginal cultural heritage planning policy
12	In response to the Aboriginal cultural heritage issue raised in this proceeding, all parties have made submissions about the merits of this issue.  Furthermore, the Applicant relies on evidence from Mr Mullett and the Respondent relies on evidence from Dr Green.  To be clear, there is no dispute between the parties that the Aboriginal cultural heritage issue raised by the Applicant and the relevant Aboriginal cultural heritage planning policy in the PPF should be considered by the Tribunal in this proceeding.  
The Minister’s submission about the relevance of Aboriginal cultural heritage policy
13	The Minister’s submission anticipates that the Tribunal might not hold the same view as the parties about the relevance of considering the Aboriginal cultural heritage planning policy.  The Minister’s submission contains a sub-section titled ‘Relevant and irrelevant considerations’ that urges the Tribunal to not entirely disregard Aboriginal heritage considerations raised in the context of this proceeding.  The Minister submits:  
147. 	The Responsible Authority is conscious of recent decisions of this Tribunal which have taken a relatively narrow approach to matters within the scope of relevant considerations, in the context of planning permit applications.43
148. 	The Responsible Authority is also conscious of a level of support for that kind of approach in the Supreme Court’s decision of Viva Energy v City of Greater Geelong Council [2023] VSC 586.
149. 	Despite those decisions, the Responsible Authority does not adopt that approach in this case. There are two limbs to this argument.
150. 	In terms of the first limb, as a matter of law, particularly statutory interpretation, the Responsible Authority does not consider it appropriate to construe the relevant permit triggers at play in this case – and most notably clause 35.07-1 and 35.07-4 – in such a way that is so narrow as to exclude any consideration of matters such as Aboriginal heritage.
151. 	Viva Energy can be distinguished from the present case because the only applicable permit trigger in that case (Design and Development Overlay: Schedule 18) had quite a confined focus, as opposed to the wide-ranging purposes of the zone provisions at play in the present case.
152. 	This submission is made in reliance on decisions such as Glen Eira CC v Gory44, Burns Bridge Service Pty Ltd v Greater Bendigo CC45 and Boroondara CC v 1045 Burke Road Pty Ltd46.
153. 	Accordingly, the Tribunal is urged not to entirely disregard considerations of Aboriginal heritage in the context of this Application for Review. The Tribunal is urged to receive and consider the evidence of both Mr Mullett and Dr Green.
…
156.	… Various applicable permit triggers (but most importantly clauses 35.07-1, 35.07-4 and 65.01), as well as ss 60(1) and 84B(1) of the P&E Act, effectively call up the whole of the Scheme’s policy content, as relevant, in the context of determining relevant permit applications. Clearly, the Scheme’s policy content includes some (albeit limited) provisions in relation to Aboriginal heritage, at clause 15.03-2S. …
…
160. 	It does not follow that the responsible authority (or the Tribunal on review) is required to expressly consider every policy of the Scheme, when determining such a permit application. Rather, it is submitted that the responsible authority, and Tribunal on review, are empowered to have regard to any of the numerous matters within the suite of the Scheme’s policy content, and to exercise judgement as to the extent to which those matters are relevant in planning terms (not legal terms), and which of them should be considered, having regard to the nature of the application at hand, and the weight to be given to them (if any).
161. 	That submission is supported by the findings of the Court of Appeal in Boroondara CC v 1045 Burke Road Pty Ltd [at 128]:
It follows that in giving weight to the matters which are required to be, or may be taken into account under planning schemes, it is principally for the decision-maker to determine which matters are of greater significance, and therefore should be given more weight, and which matters are of lesser or no significance, and should be given reduced or no weight in reaching the decision. Some matters listed in a planning control as matters for consideration may not be material in the individual case. In that event, the decision-maker having considered the matter may decide that the matter has no influence one way or the other in deciding whether a permit should be issued or whether conditions should be imposed.
162. 	The second ‘limb’ to this argument is entirely independent of the foregoing. It does not need to rely on those decisions of the Court, and it can be readily distinguished from each of Brunswick Investment, Clifftop at Hepburn and Booth. Rather it relies entirely on clause 53.13-3 of the Scheme, its reference to the SEF Guidelines, and the various references to Aboriginal heritage in those Guidelines47. It is true that those Guidelines require consideration of whether a ‘mandatory’ CHMP is required. However, they also include other provisions which enable consideration of Aboriginal heritage matters more broadly.
163. 	Overall, it is ultimately a question of weight rather than relevance, weight being a matter for the ultimate decision-maker. This is a question of planning discretion rather than legal interpretation. What weight should be given to this matter will depend upon the nature of the relevant evidence advanced in relation to the ground and the relationship between the matters raised in relation to this ground and the other relevant factors, having regard to integrated decision-making and net community benefit.

43 Brunswick Investment Project Pty Ltd v Moreland CC [2021] VCAT 1191; Clifftop at Hepburn Pty Ltd v Hepburn SC [2023] VCAT 201; Booth v Strathbogie SC [2023] VCAT 782.
44 [2001] VSC 306 at [3], [10] and [11].
45 [2005] VSC 422 at [24], [50] and [55].
46 [2015] VSCA 27 at [14], [69], [86], [97]-101], [118]-[130], [137]-[145].
47 A similar approach was accepted in Day v Minister for Planning [2023] VCAT 999.

14	Neither the Applicant nor the Respondent expressed any concern or made any submissions about the above quoted content of the Minister’s submission.  
Aboriginal cultural heritage consideration in the Solar Energy Facilities Design and Development Guideline 
15	The Minister’s ‘second limb’ submission relies on the Solar Energy Facilities Design and Development Guideline October 2022 (the Guidelines).  Clause 53.13-3 lists the decision guidelines the responsible authority ‘must consider as appropriate’ for a solar energy facility, including:
•	The Municipal Planning Strategy and the Planning Policy Framework
•	Solar Energy Facilities Design and Development Guideline (Department of Environment, Land, Water and Planning, October 2022).  
16	The Minister’s submission is correct that the Guidelines require Aboriginal cultural heritage to be considered.  The Minister submits the Guidelines require consideration about whether a Cultural Heritage Management Plan (CHMP) is required and ‘other provisions which enable consideration of Aboriginal heritage matters more broadly’.  I note the Guidelines contain the following:
i	Page 6 recommends engaging suitably qualified professionals to prepare a range of assessments to accompany an application.  It states that these assessments will generally include (amongst others) Aboriginal cultural heritage impacts (as applicable).  It states these assessments will inform the selection of a site and the preparation of the site analysis and design response.  
ii	Page 14 contains a section titled ‘Protecting cultural heritage’.  It acknowledges a solar energy facility can potentially impact Aboriginal cultural heritage and that clause 15.03-2S sets out the policy and objectives to protect and conserve places of Aboriginal cultural heritage significance.  It then specifically identifies that a CHMP may be required, and if so, a proponent must undertake this.  
iii	Page 36 describes the purpose of the design response of the proposed use and development.  This purpose is to address the assessment of a range of matters including the impacts on Aboriginal or non-Aboriginal cultural heritage.  This design response, including its assessment of the impact upon Aboriginal cultural heritage, is part of the Application requirements of clause 53.13-2.  
17	The Minister’s submission is correct that page 14 of the Guidelines refers specifically to whether there is a need for a CHMP.  This is understandable as a planning permit must not be granted if a mandatory CHMP is required and it has not been approved.  In this case, the permit applicant engaged suitably qualified professionals and the planning report that accompanied the permit application identifies that no mandatory CHMP is required.  The parties, Mr Mullett and Dr Green all agree that there is no mandatory CHMP required.  Therefore, it can be said that the requirement to consider Aboriginal cultural heritage as set out in the Guidelines has been acceptably dealt with because no mandatory CHMP is required.  Given the content of the Guidelines that I have outlined, I am not persuaded it contains ‘other provisions which enable consideration of Aboriginal heritage matters more broadly’ as is put forward in the Minister’s submission.
The role of Aboriginal cultural heritage policy in decision making
18	This brings me back to limb one of the Minister’s submissions.  It raises the question about what role planning policy plays in decision making?  The decisions referred to in footnote 43 of the earlier quote of the Minister’s submissions have all determined that particular policies are not relevant to the decision making being undertaken.  This is because of either the extent of jurisdiction (e.g. the limited section 82 jurisdiction already explained), the planning permissions required, and/or the content of the particular controls associated with those planning permissions.  In each of these decisions, the reasons depend on the circumstances of the particular proceeding.  Some of the reasons include:
a	There is no planning permission required under a particular control, so policies related to that control/issue are not relevant, and/or 
b	There are no references in the purpose or the decision guidelines of a particular control to the issue being raised, therefore planning policy sought to be relied upon about that issue is not relevant.
19	Applying this reasoning to the Aboriginal cultural heritage planning policy raises an interesting conundrum.  This is because Aboriginal cultural heritage is primarily regulated through other legislation.  As such, within the zones, parent overlay control provisions and particular provisions in the various Victorian planning schemes, there is most often no planning permission required to protect Aboriginal cultural heritage, and no purpose, objective or decision guideline that directly refers to the consideration of Aboriginal cultural heritage in deciding the merits of a planning application.  
20	This is the situation in this case having regard to the Farming Zone provisions.  The Farming Zone makes no specific mention of the need to consider the protection or conservation of places of Aboriginal cultural heritage significance.  None of the parties submitted otherwise.  So, does that mean the issue of the proximity of this site to an area of recognised Aboriginal cultural heritage significance and the potential impact of this proposal upon it is not a relevant consideration?  I have reached the conclusion that it is a relevant consideration in this case, and I will now explain why.
Reasons why Aboriginal cultural heritage policy is a relevant consideration
The structure and requirements of the Victoria Planning Provisions and the Wellington Planning Scheme about whether to consider a policy
21	Victoria’s planning system and particularly the format of the Victoria Planning Provisions (the VPPs) set up a pragmatic approach to considering planning applications.  A benefit of the VPPs is that they have created a consistent framework for all planning schemes across Victoria.  The principles of the VPPs include that they contain provisions focusing on land use and development and do not conflict with or duplicate other legislation and regulatory instruments, and that the ‘provisions ensure requirements have a clear policy basis and are planning outcome driven’.  The components of the VPPs include a planning policy framework, zones, overlay controls, particular provisions and general provisions.  All of these components exist in each of today’s individual Victorian planning schemes.  
22	The purposes of the Wellington Planning Scheme (the planning scheme) are explained at clause 01:
•	To provide a clear and consistent framework within which decisions about the use and development of land can be made.
•	To express state, regional, local and community expectations for areas and land uses.
•	To provide for the implementation of State, regional and local policies affecting land use and development.
•	To support responses to climate change.
23	The key messages in this clause relevant to this proceeding is to provide a clear and consistent framework for decision making and to provide for the implementation of planning policies affecting land use and development.  
24	Clause 71.02-2 of the planning scheme explains what the planning policy framework is and how it is to be used:
The Planning Policy Framework sets out the planning policies that form part of this planning scheme. It comprises Clauses 10 to 19.
A planning policy applies to all land subject to this planning scheme unless the policy specifies otherwise.
A planning policy provides guidance for decision making and can help the community to understand how the responsible authority will consider a proposal.
The consistent application of planning policy over time should achieve a desired outcome.
A planning authority must take into account the Planning Policy Framework when it prepares an amendment to this planning scheme.
A responsible authority must take into account and give effect to the Planning Policy Framework when it makes a decision under this planning scheme. This does not apply to policy guidelines and policy documents.
25	The key messages in this clause relevant in this proceeding are that:
•	A planning policy in clauses 10 to 19 applies to all land subject to the planning scheme unless the policy specifies otherwise (which means a policy could apply even when not specifically identified in, for example, the zone provisions including its purpose and decision guidelines). 
•	A Responsible Authority must take into account and give effect to the PPF when it makes a decision.  
26	Clause 71.02-3 explains how planning aims to achieve integrated decision making, with the oft quoted section of this clause being:
The Planning Policy Framework operates together with the remainder of the scheme to deliver integrated decision making. Planning and responsible authorities should endeavour to integrate the range of planning policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations. However, in bushfire affected areas, planning and responsible authorities must prioritise the protection of human life over all other policy considerations.
27	The key message in this quote is that Responsible Authorities are expected to endeavour to integrate the range of planning policies relevant to the issues to be determined.  I agree with the Minister’s submission that judgement needs to be exercised to determine:
•	the extent to which an issue that is raised is relevant in planning terms (e.g. considering matters such as the nature of the proposal, the planning permissions being sought, the context of the site and surrounds, and the PPF), and 
•	the weight to be given to the issue and, in turn, the associated relevant planning policies.
Recent changes in approach to the Victoria Planning Provisions have not changed the role of the PPF in the decision making process
28	Changes over the last few years to the VPPs have streamlined aspects of particular types of planning applications in terms of their decision making processes.  For example, VicSmart provisions for applications that can be processed simpler and faster as the relevant considerations are restricted, and codified design aspects of clauses 54 and 55 for single and multi-dwelling applications that also limit the relevant considerations.  
29	At the same time, over the last few years the PPF of each planning scheme has been updated to combine State and local planning policies under the relevant subject/issue.  So, other than for the streamlining that has occurred, the role of the PPF in much of the planning application decision making processes remains a fundamental component of the consideration of the merits of a proposal.  
30	Initially, the policy framework in the VPPs was divided into the State Planning Policy Framework (SPPF) and the Local Planning Policy Framework (LPPF).  The role and benefits of the SPPF were explained in the Final Report New Format Planning Schemes April 1999 (the Final Report).  This explanation remains relevant to the consideration of the PPF as it exists today, including the following:
… All decision-makers — responsible authorities and VCAT — will need to think strategically by assessing every proposal against relevant objectives.  …
…
The objectives are State-wide objectives, which recognise diversity across the State. Although all schemes must be consistent with all objectives, there is no expectation that all objectives will be met to an equal extent within any single municipality. For example, it is to be expected that the planning scheme of a suburb with an extensive industrial base will lean towards commercial and employment objectives, although environmental objectives such as air quality will also play a role. A country scheme will emphasise agricultural and tourism objectives, with a lesser role for urban growth objectives. A ‘growth’ suburb will emphasise planning for urban expansion and the provision of infrastructure and community facilities. The emphasis in the scheme is dependent on the nature of the municipality. In other words, horses for courses.
31	The Final Report also observes:
It will undoubtably take time for lingering perceptions to dissipate that … the VPPS are a ‘one-size fits all’ version of planning, allowing no room for response to local needs. This attitude is ill-conceived and ignores the first purpose of every zone and overlay …
32	The SPPF and now the PPF are clearly set up to enable policy objectives to be considered based on the particular nature of the municipality.  This particular nature can be informed by the Municipal Planning Strategy (the MPS) in the planning scheme.  Wellington Shire Council is a rural municipality containing urban centres (including Maffra) and rural areas with agriculture recognised as a major industry.  This municipality also has ‘an extensive and diverse cultural heritage’ with significant areas that have ‘important cultural heritage values’.  The MPS acknowledges:
Gunaikurnai people are the recognised traditional owners of land, with territory extending from coastal and inland areas through to the southern slopes of the Victorian Alps.
33	The Council’s strategic directions include ‘to promote the identification, protection and conservation of places of heritage significance and cultural value’.  Hence, within this municipality, the issue of Aboriginal cultural heritage is emphasised as it is specifically recognised, and its protection and conservation is promoted. 
Relevance of the PPF to the issues arising from the nature of the proposal, the context of the site and surrounds, and the objection received
34	When the new format VPP planning schemes were introduced over 25 years ago, emphasis was placed on the value to be gained from a planning policy framework that articulated both State Government and local Council objectives and outcomes.  It was observed that the VPPs were:
… intended to represent a shift away from the notions of ‘black letter law’ where schemes and terms within them must be interpreted according to a frame of reference divorced from the intended outcomes of Council. Instead, it is intended that schemes will be interpreted according to the objectives or desired outcomes that the planning authority wishes to see achieved.
35	Now, many years later, town planners and particularly those undertaking decision making at Responsible Authorities cannot and do not under-emphasise the significance of the first purpose of every zone and overlay control in the planning scheme.  
To implement the Municipal Planning Strategy and the Planning Policy Framework.
36	The issues that a Responsible Authority needs to consider in any planning application will depend on the nature of the proposal, its physical context, the planning permissions being sought, and the matters that arise through the processing of the application including any objections.  As explained earlier, a Responsible Authority and, upon review, the Tribunal will categorise issues and the policies associated with these issues in a range from being of no relevance (e.g. where no planning permission is required relevant to a particular issue) to having a lot of relevance to the consideration of the merits of a planning application.  This responsibility is undertaken having regard to the purpose of the zone and overlay controls and the clause 65 decision guidelines as well as sections 60(1), 60(1)(A), 84B(1) and 84B(2) of the P&E Act that require consideration of (amongst others) the relevant planning scheme, the objectives of planning in Victoria, any significant social and environmental effects, and any other relevant matter.  
37	Depending upon the nature of the proposal and the context of the site and surrounds, it will always be possible for there to be contextual issues that arise that are not specifically identified by planning scheme provisions contained in the relevant zone or overlay controls.  In such circumstances, planning policy guidance can be invaluable in assisting permit applicants, objectors and decision makers about the relevance and weight to be afforded to an identified contextual issue.  
38	In this case, the site is located in a farming area and there is a recognised area of Aboriginal cultural heritage located approximately 440 metres northeast of the portion of the site’s northern boundary where this solar energy facility is proposed.  The Aboriginal cultural heritage policy at clause 15.03-2S sets out the objective and strategies to be achieved throughout Victoria.  The MPS specifically recognises Aboriginal cultural heritage and promotes its protection and conservation.  The parties recognise there are traditional owner values associated with this recognised area about 440 metres from this site, and that the broader surrounds warrant consideration under the Aboriginal cultural heritage planning policy at clause 15.03-2S.  Of particular relevance to this consideration is this clause’s objective ‘to ensure the protection and conservation of places of Aboriginal cultural heritage significance’, and the strategy ‘to provide for the protection and conservation of pre-contact and post-contact Aboriginal cultural heritage places’.  I agree with the parties that consideration of this policy is of relevance in this case.  This is so given the circumstances where there is no mandatory CHMP required, but it is known that the Registered Aboriginal Party (the RAP) considers the context of the recognised grinding groove area has significance within the broader landscape.  The RAP also considers there is a high likelihood that other archaeological surface or subsurface deposits are present in the landscape.  
39	For all of these reasons, I will consider the potential impact(s) of this proposal having regard to the Aboriginal cultural heritage planning policy.  
Weight given to Andrew Paterson’s evidence statement
40	The Applicant submitted a statement from Andrew Paterson, managing director of Tablelands Pastoral Pty Ltd and a farmer of the adjoining farmland surrounding this site.  Both the Minister and the Respondent oppose content contained in Mr Paterson’s statement.  They each sought a declaration from the Tribunal to exclude parts of the statement at the start of the hearing.  I decided to allow the evidence to be presented and cross-examined before deciding whether to make such a finding and before deciding what weight to place on this evidence.  
41	There was little cross-examination of Mr Paterson but that does not mean the evidence should be given weight.  As already explained, the Minister and the Respondent made submissions about the relevance and weight of the evidence before it was given.  In terms of the presentation of the statement, what is relevant is the importance of the content of the statement and whether cross-examination has added to its consideration.  Ultimately, it is a matter of weight to be given to the statement.  In short, I have taken account of Mr Paterson’s statement, but have decided to give some of it less weight.  
42	The Minister considers Mr Paterson’s statement contains an ‘enormous amount of hearsay’.  The Respondent agrees and submits parts of it are irrelevant or inadmissible.  I agree that there are parts of Mr Paterson’s statement that refer to conversations with others (hearsay).  For example, parts of the statement contain language such as ‘the landowner has advised me …’, ‘I have spoken to numerous landowners that have expressed opposition to this inappropriate development’, ‘I have recently been contacted by various local community members’, and ‘the traditional landowners and cultural heritage groups are very much against the development’.  I have not given any weight to these parts of the statement.  Referring to statements made by others is less reliable as it is second-hand evidence at best or possibly even further removed.  Also, there are no supporting records sitting behind this to substantiate the statements made.   
43	What I have given weight to are the parts of Mr Paterson’s statement that provide information and background about his adjoining farmland and its farming practices.  
44	Mr Paterson advises the farm known as the Boisdale Estate was incorporated into the Paterson Family’s Tablelands Pastoral Pty Ltd operations in 2005.  Mr Paterson explains the Boisdale Estate house is heritage listed (including in the planning scheme) and its significance includes its surrounding garden setting.  Mr Paterson states he is a third generation farmer with a focus on the beef and dairy industries.  Since 2005, the family has improved the Boisdale Estate’s productivity with investments in irrigation, pasture and water recovery infrastructure.  This has enabled the farm to produce high-quality grass-fed beef and quality pasture crops.  
45	Mr Paterson advises he is pursuing a planning application for farm stay accommodation to the north of this site (on the north side of the driveway that leads to the Boisdale house).  He also understands he is able to construct a dwelling, calf rearing facility and rural workers accommodation to the south of this site without any planning permission.  At the time of the hearing, material was provided of an application and documentation lodged with the Council.  However, no material was available of any planning or building approvals issued for these developments.  
46	Mr Paterson highlights the proximity of his farm and this site to the Macalister Irrigation District.  His statement describes the servicing of his farm by upgraded irrigation infrastructure undertaken since 2005.  He points out this site has convenient access to irrigation water and could also be irrigated  
The giving of Mr Mullett’s evidence 
47	At 11.05am on 14 March 2023, the Applicant emailed the Tribunal and the parties requesting that Mr Mullett present his evidence on Country during the hearing.  The email states in part:
… one of the applicant’s witnesses, Russell Mullett has requested that his evidence be presented on country during the hearing.  Mr Mullett advises that the Federal Court agreed that he could give evidence in support of the Gurnaikurnai native title claim on country.  Mr Mullett gave evidence for the native title claimant in that matter: Gunaikurnai People Native Title Claim Group v State of Victoria [2018] FCA 23.
…
48	This request was received less than two business days before the start of the hearing.  Hence, understandably, the Tribunal was not able to accommodate this request at such short notice.  
49	At the start of the hearing, the Tribunal discussed this request with the parties.  There is no detail in the Federal Court decision referred to as to how the evidence on Country was presented, including what support if any was necessary in terms of court staff and processes to enable this to occur.  The Applicant was unable to provide any more information about this.  
50	The Applicant suggested part of the hearing could be held at a Council venue as well as Mr Mullett giving evidence on Country so as to make best use of the allocated hearing time.  A Council venue is not suitable for a Tribunal hearing and giving evidence on a site can be challenging for a variety of reasons including the difficulties with the recording of the hearing.  The Tribunal has no concern with a request to present on Country evidence, but the lateness of the request simply made it unachievable as part of this already scheduled hearing.  The Tribunal suggested alternatives such as by way of a video link in the hearing.  However, that was not considered a practical alternative by the Applicant.  Ultimately, the Applicant decided that Mr Mullett would appear at 55 King Street, Melbourne to present his evidence.  
Consideration of the merits of the proposal
51	As explained in the Overview, the reasons for my decision have considered the merits of the proposal in light of the concerns expressed and the key questions identified by the Applicant.  The Applicant’s submission was lengthy and detailed.  These reasons do not purport to address every single nuance of the concerns and key questions raised.  Rather, the reasons address broader themes of the Applicant’s concerns.   
Need for facility
52	The Applicant questions the need for a solar energy facility in this location in Gippsland for several reasons including (in no particular order):
•	There are many more approvals issued for renewable energy facilities including solar farms than have been constructed.
•	A permit issued in 2018 for a solar farm of 30MW to the south of Brewers Hill Road (a road to the south of this site and closer to Maffra township).  It has not been constructed six years later.  The Applicant submits this calls into question the economics of a solar farm land use in this location, meaning that this land use may not be the highest and best use in economic terms.  
•	If the pace of growth in renewable energy generation capacity outpaces the demand for energy, there might be a few solar farms that are wound up and left to rust.  
•	Of the 1884MW of ‘under construction’ renewable energy and energy storage projects listed in the VRET Progress Report, six projects have generation capacity greater than 100MW accounting for 1499MW of generation compared with just 236MW associated with planned solar projects and 150MW for the Hazelwood battery storage project.  This proposal is small at 5MW generation capacity.
•	Rooftop solar is far more popular and seeing greater growth than small scale grid solar farms.
•	Changes in renewable technologies and economies mean that smaller farms represent a greater risk of stranded assets.  Rooftop solar, larger solar farms, wind farms and other emerging technologies like offshore wind will generate economies of scale that are likely to displace ‘boutique scale’ solar farms in future.
53	I agree with the Applicant that it is possible a permit granted for this proposal may never be acted upon.  Should this possibility mean that a permit should not issue?  The answer is no.  There is nothing in the P&E Act or Victoria’s planning schemes that require a responsible authority (and, upon review, the Tribunal) to reach a decision based upon the likelihood of a permit for a development and/or land use being acted upon.  
54	Town planning is all about planning for the future.  Planning applications propose to develop and/or use land in a way that does not currently exist.  Responsible Authorities assess planning applications anticipating what the future will be based on the available material.  They decide whether a particular proposal will produce acceptable outcomes in the future.  A planning permit creates the opportunity for a development and/or land use to occur.  But, just because a planning permit is issued, it does not mean that the approved development and/or land use will be established.  The Applicant is correct that other factors then come into play including the economic viability of a particular proposal.  There is nothing in the P&E Act or the planning scheme that require a decision maker to consider the economic viability of a proposal, or how many existing permits for the same type of development and/or land use have not been acted upon.  
55	Relevant case law indicates that a demonstrated need for a facility or land use may be a relevant factor in considering and making a decision.  But the lack of a need will rarely, if ever, be a ground for refusing to grant a planning permit.  The weight that might be placed on whether there is a need for a proposal will depend on its detail.
Need is a fundamental concept in town planning, because town planning is essentially concerned with shaping our physical environment to meet the social economic and environmental needs of the community. However in individual development applications the role of need is complex. At one end of the scale, there are ubiquitous land uses in relation to which the Tribunal has said that need is not a matter for the planning system, rather it is a matter for the competitive market place. On the other hand there are important community based uses where the Tribunal has found that the need for the use can outweigh other important, and ordinarily decisive, planning considerations. An often quoted example of this latter case is the helipad at the Alfred Hospital.
56	There is strong policy support for renewable energy facilities including solar energy facilities in the planning scheme.  There is nothing to suggest that solar energy facilities are of lesser value than other types of renewable energy facilities in the planning scheme.  
57	Overall, I am not persuaded that these matters are reasons why this proposal should be refused.
Location of solar energy facility in light of future strategic planning
58	The Applicant submits there are strategic planning reasons why this site is not a suitable location for this solar energy facility.  These reasons include the future growth of Maffra township, the proximity to and the future of the Macallister Irrigation District, and the creation of Renewable Energy Zones.  
Future growth of Maffra township
59	The site is located to the north of Maffra township as illustrated in the image below.  

Extract of site location from paragraph 5 of the Minister’s submission

60	The Maffra Structure Plan (April 2022) (Structure Plan) was adopted by the Council on 17 May 2022.  The Council’s website explains the structure plan provides a long-term strategic vision to guide the future growth of the town over the next 20 years in appropriate locations, including future residential land use and development.  
61	The Applicant points out:
•	The site is in close proximity (about 150 metres) of the nominated town boundary in the structure plan (see extract below).  
•	There is a proposed expansion of rural living development on the west (opposite) side of Maffra-Briagolong Road and an investigation area a little to the south of this site (as shown in the extract below).  
•	The proposed BESS will be set back about 200-250 metres from the northern edge of the Rural Living Zone.  
62	The BESS is exempt from planning permission, so its location and proximity to surrounding land/land uses is not a reason why this proposal should be refused.  
63	The land to the southwest of this site is already zoned Rural Living as is evident on the zoning plan included in page 8 of this decision.  Hence the proposed area of expansion is only a small part of the area of rural residential nominated in the orange colour at the northern end of the structure plan, as shown below.  

Extract of northern end of the Maffra Structure Plan
64	The Applicant questions whether approving a renewable energy facility on this site is sacrificing proper and orderly strategic planning for the future urban edge of Maffra.  The Applicant points out the Guidelines state that ideally a facility should be located ‘a sufficient distance from existing urban areas or designated urban growth areas’.  There is no explanation in the Guidelines as to what constitutes a ‘sufficient distance’, so the Applicant says this vests the decision maker with a broad discretion and it is unsound to rely on the existing timber plantation between the proposal and Maffra-Briagolong Road that can be removed to justify this proposal.  The Applicant submits in this case the future expansion of a town should be a flashing amber light to the Tribunal, warranting the question of whether there should be further strategic work done before one could be satisfied this is an acceptable land use.  
65	I am not persuaded the strategic directions for urban growth in the Structure Plan warrant refusal of this proposal.  
66	The future investigation area further to the south of this site is described in the Growth Directions Plan on page 30 as having ‘long-term potential for rezoning’.  It is not an area that is earmarked specifically as a designated urban growth area.  Nor is it specifically described as being to accommodate future residential growth in this Structure Plan.  
67	Page 29 of the Structure Plan nominates the northeast corner of the township area (opposite part of this site) as a rural residential area.  It is identified for a future Rural Living Zone with a ‘schedule subject to further investigation’.  The Structure Plan also acknowledges the need for infrastructure as part of any future development in this area, including foreshadowing the introduction of a Development Plan Overlay.  Hence, the extent and nature of development in this northeast corner of the township area remains uncertain, as does the timing given the identification of infrastructure requirements as part of any future development.  
68	Furthermore, there are other areas in Maffra, including to the south of Sandy Creek Road and closer to the town centre, where further residential development is encouraged as well.  These areas are closer to the town centre and presumably have better existing infrastructure than the area opposite this site.  In the Structure Plan, the northeast corner of the township area is a small part of a much larger vision for greater residential development throughout the township.  This is evident in many figures in the Structure Plan, as is the fact that the majority of the projected future works do not extend north of Sandy Creek Road.  Given this, I am not persuaded this proposal will be affected by, or will detrimentally impact upon, the strategic planning for any future rural residential development on the opposite side of Maffra-Briagolong Road.  
Future of Macalister Irrigation District
69	Southern Rural Water’s website describes the Macalister Irrigation District as:
The largest irrigation area south of the Great Dividing Range, the Macalister Irrigation District (MID) is located in central Gippsland, south-east of Melbourne, and takes its name from the Macalister River, the main source of the district’s irrigation water.
The MID extends around the river for 53,000 ha from Lake Glenmaggie to near Sale. Approximately 33,500 ha is currently used for irrigation, and of this 90% is under pasture.
and
The irrigation season runs from 15 August to 15 May, although if supply and weather conditions are favourable, early starts and extensions beyond the scheduled close down are arranged.
70	The extent of the declared irrigation district of MID was a subject discussed a Practice Day Hearing held on 1 March 2023 in regard to this issue in this proceeding.  Correspondence tabled at that hearing from the Department of Energy, Environment and Climate Action and Southern Rural Water advised this site is not included in the declared irrigation district, and a detailed map of the whole of the declared district was provided.  I have extracted a small portion of this detailed map to illustrate the location of the site relative to the declared district areas.  This extract is on the following page.
71	The parties during my hearing accepted that this site is outside of the declared district areas of MID.  The parties also acknowledge that the MID boundary has not been amended since 2005.  

Tribunal extract.  The site is highlighted by the yellow circle.  The solid green lines illustrate the declared district areas.  The solid green lines to the east and west of this site represent an area (including Maffra township) that is outside of the declared district areas.  

72	The Applicant submits this site ‘is a good candidate to be brought within the declared district in the future as it is on the edge of the MID and has an irrigation channel’.  The Applicant relies on clause 14.02-3S that outlines an objective and strategies to protect declared irrigation districts.  The Applicant also relies on the fact that the Guidelines acknowledge the need to plan for changes to the boundaries of declared irrigation districts, including:
The Victorian Government is committed to ensuring that the siting of solar energy facilities aligns with rural water corporation assets and future planning, enabling optimal use of resources and assets within irrigation districts for the purpose of agricultural production and allowing for future strategic adjustments of the irrigation district footprint where sustainable.  
73	The Applicant referred to ‘strategic documents’ that are indicative of investigations that have or are occurring about the extent of the MID such as:
•	The Central and Gippsland Sustainable Water Strategy 2022 that has a plan to investigate opportunities to develop new irrigation areas in the Avon and Macalister systems; and
•	The Southern Victoria Irrigation Development Project Phase 3: Consolidated Final Report (Southern Rural Water) September 2021 that explores options for irrigation development in two study areas including the Avon River near Llowalong (northeast of Maffra).  The Applicant submits the study area is mapped as abutting the MID.  
74	The Guidelines do want locations in a declared district that is serviced by irrigation infrastructure to be avoided.  The fact is this site is not located within a declared district and is not serviced by irrigation infrastructure.  
75	The Guidelines also want the siting of solar energy facilities to align with future planning of water assets by allowing for future strategic adjustments to an irrigation district footprint.  There are no strategic documents or other material before the Tribunal that demonstrates any clear strategic intent for this site to be included as part of any adjustment to the irrigation district footprint.  The parties and various witnesses have been in contact with Southern Rural Water (SRW) and some documentation has been tabled from SRW in this hearing.  None of this documentation demonstrates or even suggests any future intention for this site to be included in the MID.  Whilst it appears a connection to irrigation infrastructure may be possible for this site, no such application has been made at this time.  All of these circumstances mean this site is not in an area that a solar energy facility needs to avoid locating in.  Hence, this is not a reason why this proposal should be refused.  
Future Renewable Energy Zones
76	The Applicant submits Renewable Energy Zones (REZs) are the future of where it is orderly and efficient to promote renewable energy investment.  The Applicant contends the future locations of REZs do not include Gippsland and suggests the sunnier parts of Victoria further to the north are optimal areas for solar energy.  The Applicant relies on Figure 1 in the Victorian Renewable Energy Zones Development Plan Directions Paper February 2021 (refer to the extract below) to support this submission, including that there are limited areas in Gippsland identified in this figure.  

Extract from page 4 of Victorian Renewable Energy Zones Development Plan Directions Paper

77	As the Applicant considers this site is not in a location likely to be nominated as one of the REZs, the Applicant submits this is indicative of this proposal not being acceptably located.  
78	Figure 1 (above) is a bubble diagram and is not conclusive about what locations may be declared as REZs.  This diagram is in a directions paper that is about explaining the road ahead to the determination and establishment of such areas.  
79	The Department of Energy, Environment and Climate Action website explains what renewable energy zones are:
Renewable energy zones will be areas of the state that not only have abundant renewable energy resources, such as wind and sun, but are also appropriate for development from a land use and environmental perspective.

80	The Applicant referred to the National Electricity (Victoria) Amendment (VicGrid) Bill 2024 that amends the National Electricity (Victoria) Act 2005.  At the time of the hearing, this Bill had been read for the second time on 6 March 2024.  This has now come into operation.   This means section 53 of the National Electricity (Victoria) Act 2005 now contains the functions of the CEO VicGrid, including recommending areas to be considered for declaration as REZs. 
81	The Applicant highlights that clause 19.01-2S seeks to support the provision and use of renewable energy in a manner that ensures appropriate siting and design considerations are met.  It also includes a strategy to set aside suitable land for renewable energy infrastructure, which perhaps could be interpreted to include REZs.  Having said this, at the present time in Victoria’s planning schemes, there is no specific acknowledgement or mention of REZs.  It is not known what REZs may mean for planning decision-making of all types of applications (including solar energy facilities) within and outside of such areas.  
82	I am not persuaded that the future creation of REZs to facilitate renewable energy in Victoria is sufficient reason to refuse this proposal.  
Impact on Aboriginal cultural heritage
Overview
83	The key issue of concern regarding Aboriginal cultural heritage is the potential for this proposal to diminish the spiritual and cultural context of this area.  
84	The Aboriginal cultural heritage planning policy objective is:
To ensure the protection and conservation of places of Aboriginal cultural heritage significance.
85	There is no definition of cultural heritage significance in the planning scheme or the P&E Act.  Aboriginal cultural heritage is defined in the Aboriginal Heritage Act 2006 (Vic) (the AH Act) as meaning:
Aboriginal places, Aboriginal objects and Aboriginal ancestral remains
86	The reasons for this concern identify that there are differences between the physical cultural heritage significance and the spiritual and cultural heritage significance of this area.  I hear these concerns expressed by Mr Mullett about this proposal diminishing the context of the spiritual and cultural significance of this area.  However, the Wellington Planning Scheme does not provide a particular process to address this through this planning application.  This is particularly so as there is no mandatory CHMP required under the AH Act. 
Registered Aboriginal cultural heritage
87	Mr Paterson says his farm has ‘Gippsland’s best example of first nations indigenous Gunaikurnai axe grinding stones and axe heads which are 25,000 years old’.  Mr Mullett considers grinding grooves sites are rare cultural sites, a high percentage of which are located on farm land exposed on the surface.  This area on the Paterson’s farm is fenced off from the surrounding paddocks, a measure that the Registered Aboriginal Party (the RAP) is appreciative of.  Dr Green considers the fenced off area is larger than the extent of culturally sensitive land specified in the AH regulations.  
88	The grounds relied upon in this review application include that the proximity of this proposal to the grinding stones fails to provide an acceptable response to its natural and cultural heritage context.  The Applicant is concerned this Aboriginal heritage place deserves ‘a more respectful setting than being in the proverbial shadow of a solar farm’.  
89	The Applicant called Mr Mullett to give evidence in support of this concern.  Mr Mullett is the Manager of the GunaiKurnai Land and Waters Aboriginal Corporation’s (the Corporation) RAP.  He describes this cultural heritage place as the ‘Boisdale Axe Grinding Grooves’ (the grinding grooves).  This is a registered place on the Victorian Aboriginal Heritage Register as set out in the AH Act.  
90	Dr Greene describes this registered place as having both tangible and intangible cultural values.  He explains:
From an archaeological perspective, the place is an axe-grinding groove site that is a physical manifestation of human behaviour that was repeated over (potentially) thousands of years, with generations of Aboriginal people returning to this one location to sharpen their ground-edge stone tools. From an intangible perspective, the place represents a long-term and continuing connection with Country that Aboriginal Traditional Owners recognise and value.
91	Dr Green’s evidence statement includes Figure 1 illustrating the location of this registered place relative to this site that contains this proposal (refer to the extract on the following page).  There is about 440 metres between the registered place and the location of the solar energy facility on this site.  Mr Mullett’s evidence statement also contains a map of the location of the registered Aboriginal heritage place and the surrounding land of cultural heritage sensitivity, which is a distance of 50 metres surrounding the registered place as specified in regulation 25(2) of the Aboriginal Heritage Regulations 2018 (Vic) (the AH Regulations).  As the proposal is located about 440 metres away and well outside of the 50 metre radius of the registered place, the proposal is not located on land that is of cultural heritage sensitivity as specified in the AH Regulations.  This means no mandatory CHMP is required.   

Extract from Dr Green’s Figure 1.  8222-0003 identifies the registered Aboriginal heritage place.  The red rectangle identifies the site.

RAP involvement with this proposal
92	Mr Mullett advises he was not aware of this proposal until late 2023 when he was contacted by the Applicant.  However, he acknowledges the emails contained in Ms Schroor’s affidavit indicate he was contacted as far back as September 2022 advising of the intention to lodge this planning application.  Mr Mullett explains he deals with all CHMP processes and so, understandably, his priorities mean statutory processes such as approving CHMPs can take precedence over notifications about forthcoming planning applications to be lodged.  
93	Mr Mullett also acknowledges the GunaiKurnai Land and Waters Aboriginal Corporation (the Corporation) was aware of this proposal.  The Corporation has other staff working in a panel that deal with notifications about proposed solar energy facilities.  This is explained further in Ms Schroor’s affidavit with copies of documentation received from the Corporation.  The Corporation does not object to this planning application.  It has suggested some actions (which are discussed further below).  Mr Mullett acknowledges that the Corporation has never sought to be a party to this proceeding.  
The spiritual and cultural significance of the area
94	It is the Traditional Owners of Country that are able to speak about the spiritual and cultural significance of this area.  So, despite the concern expressed by the Applicant and the opinion expressed by Mr Vernon, any concern about such an impact is a matter for the Traditional Owners.  The relevant importance of the RAP identifying such significance has been recognised by the Tribunal previously.  Mr Mullett’s statement concludes:
The proposed solar farm would diminish the context in which the grinding grooves are retained and experienced by traditional owners and other visitors.  
95	To assist in an appreciation of the outlook from the grinding grooves, I have extracted (below) a photograph from the grinding grooves contained in Mr Vernon’s evidence and (on the following page) the original photo from Mr Haack’s evidence of the photomontage view VP1 looking towards the location of the proposal from the grinding grooves.  

Extract from page 6 of Mr Vernon’s evidence statement

Extract from page 56 of Mr Haack’s evidence statement of the original photo taken from VP1 

96	Orally, Mr Mullett describes this area as ‘really significant’.  The grinding grooves are the registered physical element of significance, but Mr Mullett explains the RAP considers this area is more significant than just that physical element.  He explains the grinding grooves do not sit in isolation from the surrounding landscape.  Grinding grooves may be small physically, but it is a place that has been visited many times over many thousands of years, so that sort of visitation has a context of what Mr Mullett describes as a ‘cultural landscape’.  He points out the open country including red gum forest and native grasslands.  As the land is being farmed, Mr Mullett explains that what is left is a more contextual value of context, location, archaeological deposits and cultural significance that is highly significance.  He considers that significance cannot be distinguished from one side of the fenced registered place to the other.  
97	Orally, Mr Mullett explains the significance of the context is as a cultural landscape because the old ancestors are still there.  He acknowledges this can be described as intangible heritage significance in the AH Act, albeit it is a label that he finds objectionable.  Mr Mullett explains there is no definition or definitive difference between cultural heritage and cultural belief systems and indigenous traditional belief systems.  He considers what it is is labels placed on these systems in order to be accepted legally.  
98	In terms of the cultural belief systems, Mr Mullett explains that Aboriginal ghosts live in the landscape of this area.  They are associated with these old places because their spirits are still there.  This means there are certain cultural practices that are traditional customs about being safe on Country.  Mr Mullett says ‘our spirits are still there, and if we are not listening and are disrespectful, bad things happen.  That is still a strong belief system in our community.’  
99	Aboriginal intangible heritage is explained at section 79B(1) of the AH Act:
For the purposes of this Act, Aboriginal intangible heritage means any knowledge of or expression of Aboriginal tradition, other than Aboriginal cultural heritage, and includes oral traditions, performing arts, stories, rituals, festivals, social practices, craft, visual arts, and environmental and ecological knowledge, but does not include anything that is widely known to the public.
100	The Respondent points out this explanation does not specifically refer to the surrounding landscape, but acknowledges this explanation is not an exhaustive definition.  
101	The AH Act provides for a register of intangible heritage and Mr Mullett advises the grinding grooves and their surrounds are not included on that register.  
102	An important aspect to understanding Aboriginal intangible heritage is the need to garner that information from Traditional Owners including the Elders.  As such, Dr Green is unable to comment on this in this case as that information is not known.  Dr Green orally referred to Mr Mullet’s description of ‘a cultural landscape’ as ‘his assertion’.  Dr Green does not mean that in a derogatory way.  He points out Mr Mullett’s description is as one member of that traditional community.  Dr Green points out it is not necessarily indicative of the Traditional Owners as a whole.  Hence, I have deduced from both witnesses that, at this point in time, the intangible cultural heritage in terms of the cultural practices and traditional customs that Mr Mullett refers to needs a greater level of engagement with Traditional Owners for it to be properly understood so that it can be appropriately managed and protected.  
103	As such, I make no findings about the cultural heritage values attributable to this area or about the impact of this proposal on this potential significance.   
Recognising and protecting the cultural beliefs, practices and customs
The Corporation’s actions for this proposal
104	The Corporation’s actions for this proposal are contained in a document that refers to a number of permit applications for renewables.  The start of this document makes the following observation:
We want to highlight that developers should be meaningfully engaging with traditional owners, and that it isn’t just about tangible cultural heritage, and that any opportunity to recognise traditional owners and heal country should be on the table if possible.
105	The Corporation’s actions for this proposal that are relevant to the issue of cultural heritage include the following:
1. Suggest they undertake a voluntary CHMP to manage risk to aboriginal heritage; and ensure no delays in the case of Aboriginal material being uncovered during development.
…
3. Application references engagement with GLaWAC; but doesn’t have any assessment of traditional owner values or heritage content. A voluntary CHMP will identify risks/impacts to aboriginal heritage and ensure due consideration of this is undertaken as part of the development.
4. Application documentation doesn't adequately recognise Traditional Owners, the Gunaikurnai Nation and particularly that the project is on Brayakaulung Country.
A voluntary CHMP
106	Mr Mullett acknowledges a voluntary CHMP could be undertaken.  Similarly, Dr Green has recommended to the Respondent that one way to address concerns regarding the potential for this proposal to impact on Aboriginal cultural heritage would be to undertake a voluntary CHMP.  He says this could include consideration of potential impacts to intangible heritage identified as being associated with the land by the GunaiKurnai Traditional Owners and this would involve direct consultation with those Traditional Owners.  
107	The Applicant questioned Dr Green about his recommendation for a voluntary CHMP, particularly when the Minister can require a mandatory CHMP.  Dr Green explains that he considers the potential impacts from this proposal are only low to moderate, and he has only raised the potential from ‘low’ to ‘low to moderate’ because of potential intangible cultural heritage values.  Dr Green points out considering potential impacts to intangible heritage is not necessarily better served through a CHMP.  He explains he has not had any experience of considering intangible heritage in the CHMPs that he has been involved in.  Rather, he has had experience with this through two conservation management plans for Aboriginal cultural heritage landscapes.  They contained development and management recommendations including the preparation of a CHMP.  
108	What this all means in this case is that it is up to the Respondent to decide whether to engage with the Traditional Owners and, if so, how it wishes to do so.  A voluntary CHMP is an option, but it may not be the only option.  
No legal barrier to the grant of a permit
109	In this case there is no prerequisite for intangible heritage values to be dealt with before a permit is granted.  
110	No mandatory CHMP is required for this solar energy facility.  
111	A permit can be granted even if a voluntary CHMP is being prepared and not yet finalised for this proposal.
112	A permit can also be granted even if there is no voluntary CHMP.  
113	It is not for this Tribunal or a Responsible Authority to consider and determine the merits of a proposal based on Aboriginal intangible heritage.  The consideration of this can only be achieved by engaging with the Traditional Owners.  
114	For these reasons, there is no legal barrier to the grant of a permit for this proposal.  
115	Furthermore, in the circumstance where there is other legislation protecting Aboriginal cultural heritage both in terms of the tangible and intangible heritage values, I am not persuaded that it is appropriate for a planning permit to manage and protect such cultural heritage values.  
Conclusion
116	For all of these reasons, whilst I accept there are intangible cultural values associated with this area including what Mr Mullett explained as cultural practices that are traditional customs about being safe on Country, I am not persuaded this proposal should be refused.  
Loss of agricultural land and impact on surrounding agricultural land 
117	The Applicant submits this proposal will displace the use of the land for irrigated agriculture for as long as the solar energy facility is operational.  Whether this site may be irrigated in the future is unknown.  I agree with this submission insofar as it relates to the loss of agricultural use of the western portion of the site where this facility is proposed.  That is the decision that needs to be made – whether the loss of this agricultural land is acceptable and whether the impact of the proposal on surrounding agricultural land is also acceptable.  
118	The Applicant and Mr Paterson submit this site could be consolidated into the Paterson farm and irrigation expanded onto this site.  I have not given any weight to this as that is not the proposal before me.  The proposal is for part of this site to be developed and used as a solar energy facility with the remainder of the site and particularly its eastern part continuing to be available for agricultural use.  This is the basis of my consideration of the concerns expressed about loss of agricultural land and impact on surrounding agricultural land.  
119	The Applicant submits this site is productive agricultural land at present.  The Respondent disputes this, submitting the part of the site this proposal is utilising is not high quality or strategically important agricultural land.  
120	There is nothing in the planning scheme that specifically identifies the area surrounding this site as being strategically important agricultural land.  
121	I agree with the Respondent that my consideration should begin with the existing condition of the site.  I also agree with the Respondent’s submission that the evidence statements of Mr Shovelton and Mr Marriott identify limitations in the existing condition of the site including poor fertility, poor pasture composition, poor internal drainage, poor soil structure and being acidic at the surface and sodic in the subsoil.  Whilst their evidence and some of the cross-examination explored what they each consider necessary to improve the quality of the soil and maximise the productivity of the site, I agree with the Respondent that my consideration should focus on the existing conditions than on possible future outcomes that have no certainty.  
122	Regardless of the soil limitations identified by the witnesses, none of the parties dispute that the landowner of this site has grazed cattle on it, and that this agricultural activity can continue, particularly on the eastern portion of this site.  The Respondent submits 70% of the site remains to be utilised for agricultural purposes.  As such, the extent of loss of agricultural land is minimised.  The Respondent also submits that this proposal does not preclude water from the SRW channel or from a bore being able to be provided to this site, so this proposal does not interfere with the available irrigation opportunities.  
123	The Respondent encouraged me to find that the solar energy facility is of a ‘benign nature’ in a Farming Zone as was found in Croke v Moira SC (Croke).  I agree with this finding in the context of the material before me as the development and land use proposed has no unacceptable impacts other than the loss of some agricultural land for the duration of the land use (however long that may be).  I also agree with the finding in Croke that the loss of agricultural land is an inevitable consequence of the encouragement for renewable energy facilities.  I reiterate that, in this case, the loss of agricultural land has been limited to about 12 hectares on a site of 53.7 hectares.  This is an acceptable planning outcome.  
124	The Applicant submits the proposal will preclude the Paterson farm from consolidating itself with this site.  The Respondent points out this opportunity remains for the balance of this site, and it is an opportunity that has existed for the last two decades (since the Paterson family purchased their farm).  
125	The Applicant submits this proposal will impact on the operation of their farm, particularly as they recently lodged a planning application with the Council for group accommodation near the shearing shed (refer to location 7 on the extract below of the master plan lodged with this application).  This master plan includes on the southern half of the land a calf rearing facility supported by a caretaker dwelling and rural worker accommodation (refer to location 9 below).  The Applicant explains the Paterson farm comprises 300 hectares, and some of this accommodation could be built without needing planning approval.  The Paterson farm is large, and this creates its own opportunity for any accommodation buildings to be relocated further away from this proposal if the Applicant wishes to.  I am not persuaded the proposal will limit the operation or expansion of the Paterson farm, including if it contains a greater amount of accommodation.

Extract from the Applicant’s master plan for the Paterson farm.  
Note: the review site is the lot with the words ‘stratford town supply channel’ running through it.  

Visual impact of the proposal
The Applicant’s concern
126	The Applicant is concerned about the impact of the proposal on their landscape and outlook.  The Applicant relies on the evidence of Mr Vernon that the Paterson land has ‘particular natural, cultural and heritage values that are at odds with the imposition of a large scale built form element on elevated land’.  
127	The parties all agree that the key visual impact to consider is the visibility of the solar energy facility from the Paterson driveway.  The Applicant submits the proposal ‘will be a constant reminder of the built form change thrust upon’ them as they enter and leave their property.  
Relevant considerations in the planning scheme
128	Clause 53.13-2 of the planning scheme requires a renewable energy facility applicant to include accurate visual simulations illustrating the development in the context of the surrounding land and from key public view points.  The decision guidelines at clause 53.13-3 include considering:
•	The impact of the proposal on significant views, including visual corridors and sightlines.  
129	So, the planning scheme focus for a visual analysis is upon key public views and significant views including visual corridors and sightlines.  None of the parties or the witnesses suggest that there are public views of relevance in this case.  In regard to significant views, I have taken the liberty of including the Applicant’s concern about cultural and heritage values into this category.  In this case, that may partially relate to the grinding grooves Aboriginal cultural heritage and I rely on the findings I have already made about this issue.  The Applicant advises that the Boisdale house/homestead and gardens are opened to the public on occasion and, if the group accommodation is constructed, the public access along the driveway will increase.  The application requirements for a solar energy facility do include illustrating the development in the context of the surrounding land.  This may bring the Paterson farm and its driveway into consideration.  As already mentioned, there is agreement in this proceeding that the key visual impact to consider is the visibility of the proposal from this driveway.  
Relevant considerations in the Guidelines
130	The Guidelines observe that:
The visual impact of a solar energy facility and its associated infrastructure can impact its immediate location and have a causal effect on a broader setting.
131	The Guidelines identify a range of matters that the visual impact of a solar facility relates to, including the following that are of relevance in this case:
•	The sensitivity of the landscape and its ability to absorb change
•	The size, height, scale, spacing, colour and surface reflectivity of the facility’s components
•	The excessive removal, or planting of inappropriate species of vegetation
•	The location and scale of other ancillary uses, buildings and works including transmission lines, battery storage units and associated access roads
Visual simulations
132	A visual impact assessment was submitted as part of the planning application.  At that time, the maximum height of the panel profile (full tilt) was 5.147 metres.  The assessment concluded that the visual impacts were low to no impact for public road users and dwellings within two kilometres of the proposal.  This assessment did not specifically consider the Paterson’s driveway. 
133	Mr Haack’s evidence statement includes photomontages of the amended proposal that is before the Tribunal, which has reduced the maximum height of the panel profile (full tilt) to 2.964 metres.  The three montages are from the Paterson farm.  Two (VP2 and VP3) are from the driveway and one (VP1) is from the grinding grooves location.  Mr Haack’s evidence also assesses three locations along Maffra-Briagolong Road.  
134	Mr Vernon did not prepare any visual simulations.  
135	During the hearing, the focus of consideration was upon Mr Haack’s photomontage views and particularly the two from the Paterson driveway.  I have placed weight on this material in considering this concern.  
Visual analysis
Existing landscape
136	Mr Vernon describes the existing landscape appreciated from the Paterson farm as being of open grazing land with background vegetation.  He considers this ‘viewshed is uninterrupted by the visual clutter of intrusive built elements’.  He acknowledges the photographs in his evidence statement do illustrate from various points that there is an existing telecommunications tower also within this background.  
137	Mr Vernon’s evidence points out differences in the topography of the land.  Specifically, part of the Paterson driveway and surrounding land is elevated about 10 metres above the site, enabling views across it.  This is illustrated in the following extracted images.  

Extract from figure 18 of Mr Vernon’s evidence statement.  The 70/red elevated land has the white driveway underneath it. 	
Extract from figure 10 of Mr Haack’s evidence statement.  Photomontage locations VP2 and VP3 are located along the 70/red elevated section of the driveway.	

138	This is shown in the extracts on the following page.  Mr Vernon describes the ‘sense of arrival along the main entry driveway’ as an open panoramic viewshed including overlooking this site.  Mr Haack disagrees because of the driveway heads north, away from this site.  I agree with Mr Haack that it is the view exiting along the driveway where the existing landscape/viewshed will change.  The elevated driveway views are illustrated in the photomontage locations VP2 and VP3 in Mr Haack’s evidence statement (extracts are contained in the following pages).  
Views from Maffra-Briagolong Road
139	Mr Vernon acknowledges the proposal is generally obscured along Maffra-Briagolong Road but he is concerned about the width of the frontage of the proposal to Maffra-Briagolong Road.  He considers the proposal will be visible from the road looking in a southeasterly direction.  Mr Haack agrees this is the most visible publicly accessible location.  I agree with the analysis contained in the original application and Mr Haack’s evidence that the views from Maffra-Briagolong Road are fleeting as there is roadside vegetation with breaks in it.  Mr Haack also points out the field of vision is limited because a driver would be focussing on the road itself.  
140	Mr Vernon is concerned about the possibility of the plantation vegetation on the east side of Maffra-Briagolong Road being removed and exposing the proposal to the public realm.  I accept Mr Haack’s evidence that visual assessment methodologies typically define local roads as being of low visual sensitivity.  As such, no amelioration is required of the proposal’s visibility now or in the possible future if the plantation vegetation is removed.  If future residential development occurs on the opposite side of the road, the existence of the permit for this solar energy facility or its actual construction will no doubt enable any master planning on the west side of the road to incorporate some screening landscaping or other screening measures such as solid fencing if considered necessary.  
Views from Paterson driveway
141	Mr Haack explains that higher visual sensitivity uses are primarily confined to residences and their immediately surrounding outdoor living space.  In contrast, agricultural production areas such as paddocks and local roads are typically defined as being of low visual sensitivity.  Mr Haack’s evidence is that, typically, views from driveways to houses are not assessed in a visual analysis. 
142	The solar panels are not particularly high and have a low profile.  Mr Haack describes them as a dark recessive colour and as non-reflective as possible.  Mr Vernon considers the two metre high chain mesh fence around the proposal is not of a rural height and presents clutter to this rural setting.  However, this fencing is highly transparent and will have limited visibility from locations that are about 480 metres away at VP2 and about 380 metres away at VP3.  

View of proposed development in photomontage VP2

View of proposed development in photomontage VP3

143	There is no doubt that the proposal will be visible when exiting the Paterson farm along its driveway.  Mr Vernon considers this is a ‘visual clutter of intrusive built elements’.  I am not persuaded of this and find that the visual presentation is low scale and only a part of a broader view both in panorama width of view and in the existing separation and landscape of paddocks already between the proposal and this driveway.  
Landscaping and bushfire risk
144	Mr Haack’s evidence includes the preparation of a landscape plan to meet the requirements of condition 4 contained in the Notice of Decision to Grant a Permit.  This landscape plan includes a five metre wide strip of buffer planting along the length of the northern boundary.  Mr Haack explains this was included specifically to limit the visibility from the Paterson’s property.  His photomontages predict the visual contribution of this landscaping in 5 and 10 years time, with the visibility of the proposal from the Paterson driveway reducing significantly over that time.  
145	Mr Vernon accepts the proposed species in this buffer are suitable for the area and with appropriate maintenance should reach a size to effectively screen the proposal in about 7-10 years.  However, until then he points out the proposal will be exposed, and Mr Vernon submits when established it will be a defined and linear edge condition that will be incongruous with the existing open rural landscape.  I do not share Mr Vernon’s concerns.  First, it is inevitable with the planting of vegetation that it will take some years to achieve the desired screening.  Second, a defined and linear edge condition in this landscape already exists.  It is common for there to be roadside vegetation that creates a visual buffer, and that already exists here.  Having regard to VP2 and VP3, the views of the proposal are limited and acceptable.  With landscaping in the future in VP2 and VP3, the views will be of background vegetation, as is already found in the existing landscape.  
146	The Applicant expressed concern about the potential fire hazard created by the inclusion of the landscaping in an area that includes land contained in a Bushfire Management Overlay.  The Country Fire Authority has requested permit conditions that require submission of and endorsement of:
•	A Risk Management Plan that identifies the risks and hazards at the facility, and
•	An Emergency Management Plan and Fire Management Plan.  
147	If there are any bushfire risks of concern to the CFA, I am satisfied that this can be resolved through compliance with these permit conditions.  
148	For these reasons, the visual impact on the Paterson farm is acceptable.  
What conditions are appropriate?
149	Having considered the concerns expressed, I have reached the decision that a permit should issue.  This brings me to what conditions should be included in this permit.  The Minister provided draft permit conditions that accord with those contained in the Notice of Decision to Grant a Permit (NOD).  These permit conditions were discussed at the end of the hearing with both the Applicant and the Respondent providing their own version and suggestions.  The Respondent’s version was used as a basis for this discussion.  I granted leave for the Minister to respond to these after the hearing, and for the other parties to then respond if they wished.  
150	I have considered the submissions made about permit conditions and prepared acceptable conditions accordingly.  I do not intend to go through the submissions about these conditions in detail.  However, I do wish to provide some reasons regarding four issues related to the permit conditions.  They are the need for conditions for a glint and glare assessment, a rehabilitation plan or environmental management plan, the potential discrepancy between the Head, Transport for Victoria (TfV) conditions and this proposal, and the permit expiry.  This latter issue may require the Respondent and the Minister to consider the need for changes to the TfV conditions through a separate process.  This is necessary because the Tribunal does not have jurisdiction for the planning permission under clause 52.29, and hence these conditions for the reasons explained at the start of these reasons.  
Glint and glare assessment
151	The Minister and the Respondent reached a settlement at a compulsory conference regarding an application to review some of the conditions contained in the NOD.  This settlement was tabled at this hearing as the two parties agreed that should a permit be granted in this proceeding the agreed conditions in Appendix A would form part of the draft conditions circulated.  One of those conditions relates to glint and glare:  
Glint and Glare
13.	The use and development approved under this permit must be managed so that the amenity of the area is not detrimentally affected by glare from the solar energy facility to the satisfaction of the responsible authority.
152	I questioned the content of this condition as it does not refer to glint and there is no reference to the glint and glare assessment submitted with the permit application.  In the Respondent’s draft permit conditions, the condition is proposed to be amended to include ‘glint or glare’.  The Applicant wants glint or reflection to the driveway assessed.  I am not persuaded this is appropriate as the Guidelines require an assessment of roads, not driveways, so I have not included this.  Other solar energy facility permits granted by the Tribunal often require the glint and glare assessments to be endorsed and form part of the permit.  I have amended the condition to require this.  
Rehabilitation plan or Environmental management plan
153	The permit application indicates the ‘life’ of this solar energy facility is at least 30 years as there will be a 30 year lease and the possibility of a further term.  The Applicant is concerned that the proposal does not include a rehabilitation plan or environmental management plan.  This Applicant submits this is contrary to the application requirements of clause 53.13, and it is not clear that the responsible authority is permitted to lawfully waive this requirement.  The Applicant requests a bond be required for the rehabilitation works, which is opposed by the Respondent and the Minister. 
154	Clause 53.13-2 states that an application must be accompanied by various information ‘as appropriate’.  The last item of information listed is:
•	An environmental management plan including a construction management plan, any rehabilitation and monitoring.  
155	The fact that these plans may not have formed part of the permit application is a matter for the Responsible Authority to decide as to whether this is ‘appropriate’.  It would appear from the other solar energy facility Tribunal decisions tabled that it is common for such plans to be required as a condition of the planning permission granted.  There is some sense in this as the level of detail required in an environmental management plan is best prepared when the overall layout and construction details have been granted planning permission.  
156	The Guidelines contain a section titled ‘Decommissioning’ that acknowledges the operational lifespan of a solar energy facility typically ranges from 20-30 years.  It states decommissioning requires care to ensure the land is returned to its original condition.  It also states consideration should be given to (amongst others):
•	who will be responsible for decommissioning the facility
•	 at what stage the responsible authority will be advised the facility will be decommissioned
•	the processes, plans and procedures for removing all built form and for restoring the land to its pre-developed or natural state
•	the timeline for the decommissioning work.
157	The Minister has imposed conditions requiring:
•	The Minister and the Council to be notified within three months once the facility permanently ceases operation.  
•	Once the BESS facility permanently ceases operation, all infrastructure, equipment, buildings, structures and works must be removed and the site must be rehabilitated and reinstated to the condition it was in prior to the commencement of the development to allow it to be used for agricultural purposes (or any proposed alternative use).  
•	A Decommissioning Management Plan (DMP) to be prepared and endorsed.
•	The decommissioning works to be completed no later than 12 months after the DMP is endorsed.  
158	In light of this, the question is should a bond be required?  
159	In the decisions for solar energy facilities issued by the Tribunal, no bond has been required.  Rather, the decisions by the Tribunal to grant planning permission have included conditions requiring decommissioning and rehabilitation plans to be submitted, approved and implemented within specified time frames.  It is inherent in these planning permissions that the decommissioning will be undertaken.  This makes sense because it is an obligation in the permit conditions.  It could be said therefore that the decommissioning is expected regardless of the cost.  
160	In ESCO Pacific Pty Ltd v Wangaratta RCC [2019] VCAT 219, the Tribunal expressed concern about lawfully imposing a bond as there is no such requirement set out in the P&E Act or the relevant planning scheme provisions.  I share this concern.  The ‘Decommissioning’ section of the Guidelines require consideration of the matters generally imposed in the permits issued by the Tribunal, but there remains no mention or suggestion of a requirement for a bond.  
161	For these reasons, I have not imposed a condition for a rehabilitation bond.   
Need for vehicle access to remainder of this site for agricultural use
162	The Respondent’s submission is that the secondary emergency access point in the southwest corner of the site will also provide farm access to those parts of the site which do not form part of this proposal.  With this access those parts of the site can continue to be used for agricultural purposes, including grazing cattle.  
163	The substituted amended plans and new plans before the Tribunal are not clear about this.  Neither are the original permit application plans.  
164	The Maffra Existing Site Conditions plan by BNRG dated 29/03/2023 has a notation of ‘grazing’ on the east side of the SRW channel and a marked ‘existing crossover’ over the channel as well as an ‘existing gate’ at the southwest of the site’s road frontage (refer to the extract below).  

Extract from the Maffra Existing Site Conditions plan on Tribunal book page 145

165	However, these details are not all carried through into the Maffra Site Context plan or the Maffra Site Layout plan of the original permit application plans, or into the Maffra Site Context plan or the Maffra Site Layout plan of the Tribunal’s substituted plans.  
166	The Maffra Site Context plan and the Maffra Site Layout plan in the original permit application plans describe the southern gate to Maffra-Briagolong Road as ‘secondary’ with another notation at the southwest corner of the proposed facility’s road of ‘secondary emergency access’ (as shown on the extract on the following page).

Extract from the Maffra Site Layout plan at Tribunal book page 148

167	This lack of clarity in the plans is of concern.  It is important that the opportunity for access to the balance of the site remains for the benefit of continued or new agricultural land uses.  TfV’s conditions also appear at odds with retaining this opportunity as some of the conditions in the NOD state:
48. 	The main site access from the Maffra-Briagolong Road must be constructed generally in accordance with Standard Drawing GD4010 suitable for a 26m B-double with a minimum 25m asphalt surface, including drainage pipes and drivable end walls.
49. 	The emergency access from the Maffra-Briagolong Road must be constructed generally in accordance with standard drawing GD4010 suitable for an 8.8m service vehicle with a minimum 19m asphalt surface, including drainage pipes and drivable end walls.
51. 	The emergency access must be controlled by lockable gates for the purposes of emergency use only. 
168	Conditions 48 and 49 appear to be referring to notations in the Maffra Site Layout plan about the main and emergency access points.  Condition 51 appears not to contemplate vehicle use of the southern end of the proposal for any purpose other than emergency access.  
169	Clearly the notations on the Maffra Site Context plan and the Maffra Site Layout plan have fallen off the substituted amended plans.  Therefore, it was agreed in the hearing that I should impose conditions to reinstate these on the plans.  I have also decided to include a condition for additional notations that make it clear that the existing site conditions of a crossing over the SRW channel remains as well as agricultural vehicle access to the property from the southern gate to Maffra-Briagolong Road.  The Applicant questioned whether there is consent for a crossing over the SRW channel.  That is a matter for the Respondent to resolve.  No doubt there has been access, even informal access, across the channel to date, so it is an expectation in these permit conditions that that opportunity will remain and the eastern part of the site will not be landlocked.  
170	As the planning permission under clause 52.29 is not before the Tribunal, this issue may create a practical difficulty for this omnibus planning application as was explained in Dance.  I have decided not to issue an interim decision (as was done in Dance) as it is only one planning permission that is otherwise not affected by the balance of the considerations in this decision.  
171	It will be up to the Respondent to decide if there is any conflict between the planning permissions granted by the Tribunal for this amended proposal and the Minister’s decision to grant permission under clause 52.29.  If the Tribunal’s conditions are in conflict with the TfV conditions, then the Respondent will need to seek to amend the TfV conditions contained in the clause 52.29 planning permission granted by the Minister.  
Permit expiry
172	The Applicant’s version of the draft conditions seeks an expiry linked to whether the permit holder receives a written offer to connect from the operator of the electricity distribution network, as well as two years to start the development and three years to complete the development.  I agree with the objections to this condition from the Respondent and the Minister.  The standard approach is to provide an expiry linked to the permissions being received, e.g. development and land use.  The Minister and the Respondent reached an agreement in the section 80 conditions review application for the expiry for development to be three years to start and six years to complete.  Given the complexity of the permission received with approvals required from various authorities for this proposal to proceed, I accept with the timeframes agreed by the Minister and the Respondent.  
Conclusion
173	For the reasons given, the decision of the responsible authority is varied.  A permit is granted subject to conditions.

Rachel Naylor
Senior Member			

Appendix A – Permit Conditions

Permit Application No	PA2201955	
Land	Lot 13 TP23981 Maffra-Briagolong Road & Maffra-Briagolong Road Reserve
MAFFRA VIC 3860	

What the permit allowS	
•		Construction of buildings and the construction and carrying out of works and the use of part of the land for the purpose of a renewable energy facility (solar energy facility) in the Farming Zone
•		Display of a business identification sign in the Farming Zone
•		Removal of 3.97 hectares of native vegetation including four large trees
in accordance with the endorsed plans.	

Conditions
Compliance with documents approved under this permit
1	At all times what the permit allows must be carried out in accordance with the requirements of any document approved under this permit to the satisfaction of the responsible authority.
Amended Plans
2	Before the use and development starts, including bulk excavation and site preparation works, plans must be approved and endorsed by the responsible authority. The plans must be prepared to the satisfaction of the responsible authority, be drawn to scale with dimensions, be generally in accordance with the following plans
Sheet Name	Prepared by	Dated	
Maffra Existing Site Conditions	BNRG	29 March 2023	
Maffra Solar Farm Vegetation in Study Area	NGH	13 April 2023	
Maffra Site Context	BNRG	2 February 2024	
Maffra Site Layout	BNRG	2 February 2024	
Maffra Section Drawing	BNRG	18 April 2023	
Elevations	BNRG	20 October 2022	
Typical Access to Rural Properties	VicRoads 	July 2022	
Tracker Elevation	BNRG	2 February 2024	
SG4950HV-MV Elevation	BNRG	24 June 2022	
BESS Elevation	BNRG	23 June 2022	
BNRG Leeson Solar Farm – Site Signage Dimensions	BNRG	undated	

but amended to show the following details:
(a)	Setbacks to all site boundaries. 
(b)	The colours and finishes of all buildings (including the BESS units, switchroom, inverter and storage shed) must be in a matt, green/grey non-reflective finish matched, where possible, to colours present within the surrounding landscape to minimise visual impact. 
(c)	Fully dimensioned roadworks to Maffra-Briagolong Road including proposed crossovers and access tracks servicing the subject site. 
(d)	Detailed plans of any power lines and other grid connection works. 
(e)	Identification of patch vegetation and trees to be removed in accordance with the relevant Department of Energy, Environment and Climate Action conditions.
(f)	Notations on the plan titled Maffra Site Context plan regarding the secondary emergency access and secondary existing gate with grazing on the east side of the channel as shown on the Maffra Site Context plan dated 28 March 2023.
(g)	Notations on the plan titled Maffra Site Layout plan regarding the secondary emergency access and secondary existing gate with grazing on the east side of the channel as shown on the Maffra Site Layout plan dated 18 April 2023.
(h)	Additional notations on the Maffra Site Context plan and the Maffra Site Layout plan illustrating the existing site conditions of a crossing over the SRW channel remains as well as agricultural vehicle access to the property from the southern gate to Maffra-Briagolong Road as generally shown on the Maffra Existing Site Conditions plan dated 29 March 2023.
(i)	Any landscaping in accordance with the relevant Landscape Plan condition. 
(j)	Any changes required in accordance with the relevant Traffic Management Plan condition. 
(k)	Any changes required in accordance with the relevant Wellington Shire Council conditions.
(l)	Any changes required in accordance with the Department of Energy, Environment and Climate Action conditions.
(m)	Any changes required in accordance with the Head, Transport for Victoria conditions. 
(n)	Any changes required in accordance with Country Fire Authority conditions.  
Layout not altered
3	The use and development must be generally in accordance with all plans and documents approved and endorsed under this permit. The endorsed plans must not be altered or modified without the prior written consent of the responsible authority.  
4	Once the development permitted has started, it must be continued and completed to the satisfaction of the responsible authority.
Landscaping
5	Concurrent with the approval of plans under condition 2 of this permit, a Landscaping Plan must be submitted to and approved by the responsible authority. The landscape plan must be generally in accordance with the Landscape Amelioration Plan Maffra Solar Farm, Plant Palette & Set-Out Maffra Solar Farm plan and Details Maffra Solar Farm plan prepared by Peter Haack Consulting and 2 February 2024 and must include the following:
(a)	Details of all landscaping and vegetation (including species, density, height at time of planting and maturity, and separation in both plan and elevation) including screen planting.  
(b)	Details of all ground surface finishes including internal access tracks, pathways, laydown areas, and driveways including how these areas will be maintained at a reasonable level. 
(c)	A timetable for implementation of landscape works.  
(d)	A maintenance and monitoring program to ensure the ongoing health of landscape works.
6	The landscaping works must be carried out and completed in accordance with the landscaping plan to the satisfaction of the responsible authority within the timeframe indicated in that plan.
7	Once the landscaping is carried out, it must be maintained in good health for the operational life of the facility, including the replacement of any dead or diseased plants to the satisfaction of the responsible authority.   
Construction Environmental Management Plan 
8	Before the use and development starts, excluding site preparation works, a Construction Environment Management Plan must be submitted to and approved by the responsible authority in consultation with the Department of Energy, Environment and Climate Action (DEECA). The plans must be prepared to the satisfaction of the responsible authority and be generally in accordance with the plans endorsed under condition 2. The Construction Environment Management Plan must include: 
(a)	A description of: 
i	the measures to be implemented to protect the native vegetation to be retained during construction works (such measures must include the erection of a native vegetation protection fence around the tree protection zone of all native trees to be retained),
ii	the person/s responsible for implementation and compliance.
(b)	A requirement that all tree protection zones comply with AS 4970-2009 Protection of Trees on Development Sites, to the satisfaction of the responsible authority.
(c)	Procedures to manage noise emissions and vibration generally in accordance with the requirements of the Noise Control Guidelines (EPA Publication 1254) and the Environmental Guidelines for major construction sites (EPA Publication 480).
(d)	Measures to control overland flow, erosion, sediment and sediment laden water run-off including design detail of any structures.
(e)	Procedures to manage dust emissions to manage amenity impacts on surrounding properties. 
(f)	Where equipment, machinery and material are to be stored/ stockpiled.
(g)	Prescription that no stockpiles or storage of material are to be stored on the gas pipeline easement of the site at any time. 
(h)	Proposed monitoring and reporting systems.
(i)	Land rehabilitation techniques including revegetation and weed control.
(j)	Proposed monitoring and reporting systems.
(k)	Vehicle and equipment hygiene measures to prevent the spread of weeds and pathogens to and from the site.
(l)	Procedures to remove temporary works, plant, equipment, buildings and staging areas, and reinstate the affected parts of the land, and to rehabilitate construction zones with appropriate species (i.e. pasture), when construction is complete.
Operational Noise
9	Before the use of the land starts, excluding site preparation works, an updated acoustic report must be submitted to and approved by the responsible authority. The acoustic report must be prepared to the satisfaction of the responsible authority, be generally in accordance with the Acoustic Report prepared by Renzo Tonin & Associates, dated 31 October 2022, and amended to include recommendations for mitigation measures that will be implemented to achieve compliance with Environment Protection Authority (EPA) Publication 1826.4 should the land identified within the Maffra Structure Plan (April 2022) as future ‘rural residential’ which is to the west of the subject land of this permit be developed for residential purposes. 
10	At the time the future ‘rural residential’ land is developed with any dwellings, all necessary mitigation measures to ensure the use of the land complies with the Environmental Protection Authority’s Noise limit and assessment protocol for the control of noise from commercial, industrial and trade premises and entertainment venues (Noise Protocol) (as documented in EPA Publication 1826.4) or any other applicable noise limit in force at the time, must be implemented to the satisfaction of the responsible authority. Any noise mitigation measures required under this permit must be implemented after a dwelling has been constructed and no later than within 6 months of the occupation of the newly constructed dwelling. 
11	The use of the land must at all times comply with the Environmental Protection Authority’s Noise limit and assessment protocol for the control of noise from commercial, industrial and trade premises and entertainment venues (Noise Protocol) (as documented in EPA Publication 1826.4).  
12	All measures relied on to achieve compliance with the Noise Protocol must be shown on the plans endorsed and implemented to the satisfaction of the responsible authority.  
13	The acoustic report approved under condition 9 must be made available to the public when requested. 
Glint and Glare
14	Concurrent with submission of plans for endorsement under condition 2, a report addressing any impacts of glint and glare associated with the solar energy facility is to be prepared by a suitably qualified consultant. This report is to be generally in accordance with the Glint and Glare Assessment prepared by Moir Landscape Architecture dated 28 October 2022 and updated to accord with the plans for endorsement under condition 2.  The Glint and Glare Assessment must be submitted to the Responsible Authority. When approved the Glint and Glare Report will be endorsed and will then form part of the permit
Traffic Management Plan 
15	Before the use and development starts, including site preparation works, a Traffic Management Plan (TMP) must be submitted to and approved by the responsible authority.  The TMP must:  
(a)	Include measures to be taken to manage traffic impacts associated with the construction of the facility, including powerlines.  
(b)	Specify designated transportation routes that will be used to access the site during construction of the facility, including powerlines, including the amount and type of vehicles required.  
(c)	Include a program to inspect, maintain and repair public roads used by construction traffic.  
(d)	Include details of any proposed modifications or upgrades to existing roads that will be required before, during and after construction of the Solar energy facility and Utility installation.  
(e)	Address potential environmental and social impacts associated with the traffic generated by construction of the Solar energy facility and Utility installations, including potential coordination with public transport routes.  
(f)	Be prepared by a suitably qualified independent civil or traffic engineer.  
(g)	Be approved by the relevant road management authority (or authorities) prior to submission.  
Retained Vegetation
16	Before the use and development of the site, including site preparation works starts, a plan must be submitted and approved by the responsible authority. The plan must identify:
(a)	All native vegetation to be retained onsite.  
(b)	Tree Protection Zones (TPZ) must be established around the retained vegetation, visibly marked, and maintained to ensure minimal disturbance during various stages of construction and during operation of the project.  
AS-4970-2009-Protection of Trees on Development Sites should be used as a guideline when planning all works.  
Control of Lighting  
17	All lighting installed and operated at the site must comply with Australian Standard 4282 Control of the obtrusive effects of outdoor lighting. 
 Emergency Services  
18	Before development starts, the permit holder must provide spatial information data to Land Use Victoria via email Vicmap.help@delwp.vic.gov.au to be used to direct emergency services to and within the site. This information must be in the ESRI Shapefile or Geodatabase .gdb format, GDA94 or GDA2020 datum and include:   
(a)	The location and boundaries of the solar farm extents polygon(s).   
(b)	All access entry points onto private property.  
(c)	All Internal roads.  
(d)	The locations of site compound, substations, batteries, and maintenance facilities.   
19	If there are any subsequent changes to infrastructure location, internal roads or access points during construction, or after completion of construction, updated data must be provided to Land Use Victoria via email Vicmap.help@delwp.vic.gov.au within 30 days of the change, to enable details of any changes to the solar energy facility to be known to emergency services dispatchers.  
Signage  
20	Business identification signage must not exceed 3 square metres in overall area.  
21	The signs, including their structure and advertising material as shown on the endorsed plan, must at all times be maintained in good order and condition, to the satisfaction of the responsible authority. 
22	The location, size, material of construction, colours, wording and degree of illumination of the signs shown on the approved plans must not be altered or modified without the prior written consent of the responsible authority. 
23	The sign(s) must not be illuminated by external or internal light. The responsible authority may consent in writing to vary this requirement.
24	When decommissioned all signs must be removed from the site.  
Decommissioning  
25	Once the facility permanently ceases operation, the Minister for Planning and Wellington Shire Council must be notified within three months. 
26	Once the land use permanently ceases, all infrastructure, equipment, buildings, structures and works must be removed, and the site or the relevant part of the site must be rehabilitated and reinstated to the condition it was in prior to the commencement of development to allow it to be used for agricultural purposes (or any proposed alternative use). This includes, but is not limited to, all battery storage containers, inverters/transformer containers, control building, substation, switchyard, and above and below ground electrical infrastructure and equipment.  
27	If the landowner requests, items of infrastructure or other works (such as access tracks or the control building) that are suitable for the ongoing agricultural use of the land (or proposed alternative use) may be retained, subject to the written consent of the responsible authority.   
28	Within three months of the facility permanently ceasing operation, a Decommissioning Management Plan (DMP) prepared by a suitably qualified and experienced person must be submitted to, approved and endorsed by the responsible authority. Once endorsed, the DMP will form part of the permit. The DMP must include, as a minimum:   
(a)	Who will be responsible for decommissioning the facility
(b)	Identification of infrastructure, equipment, buildings and structures to be removed
(c)	The processes, plans and procedures for removal of all identified under item (b) and for restoring the land to its pre-developed state  
(d)	The timeline for the decommissioning work.
29	A Decommissioning Traffic Management Plan (DTMP) must be submitted to, approved and endorsed by the Minister for Planning prior to decommissioning works starting. The DTMP must be approved by the relevant road management authority (or authorities) prior to submission to the Minister for Planning for endorsement. The DTMP must specify measures to manage traffic impacts associated with removing the infrastructure, equipment, buildings and structures from the site, to the satisfaction of the responsible authority.  
30	All decommissioning works identified in the DMP be completed to the satisfaction of the Minister for Planning as soon as practicable, but no later than 12 months after the cessation of the land use or such other period as is approved by the responsible authority.  
31	The endorsed DMP must be implemented to the satisfaction of the responsible authority.  
WELLINGTON SHIRE COUNCIL 
Stormwater Assessment
32	Before the use and development starts, excluding site preparation works, a Stormwater Assessment must be submitted and approved by the responsible authority in consultation with Wellington Shire Council. The Stormwater Assessment must include:
(a)	An assessment of stormwater surface runoff.
(b)	Provision of appropriate detention in accordance with the Wellington Shire Council Infrastructure Design Manual. 
33	All wastewaters must be directed to an approved onsite wastewater system and must be retained within the property boundaries. 
COUNTRY FIRE AUTHORITY (CFA) 
Amended Plans 
34	Before plans are endorsed under condition 2, in consultation with the CFA, a Risk Management Plan must be submitted to and approved by the responsible authority. The Risk Management Plan must be prepared in accordance with the CFA Guidelines, and: 
(a)	Describe the risks and hazards at the facility to and from the battery energy storage system and related infrastructure. 
(b)	Include a dedicated fire water supply for the battery energy storage system of a quantity no less that 288kL, or greater as determined under the provisions of CFA’s Guidelines:
i	Provided otherwise in accordance with the CFA Guidelines and AS 2419.1-2005: Fire hydrant installations. 
ii	Located at the main entrance to the facility. 
iii	Commissioned prior to the arrival of the battery energy storage system enclosures/containers at the facility.
(c)	Specify the separation distance, based on radiant heat flux (output) as an ignition source, between: 
i	Adjacent battery containers/enclosures. 
ii	Battery containers/enclosures and related battery infrastructure, buildings/structures, solar panel infrastructure, and vegetation. 
(d)	List and describe all other controls for the management of on and off-site hazards and risks at the facility (including all proposed battery energy storage system safety and protective systems). 
(e)	Provide an evidence-based determination of the effectiveness of the risk controls against the identified hazards, including justification for the omission of any battery safety and protective system/s. 
(f)	Be peer-reviewed by a suitably qualified, independent third party. 
(g)	Form the basis for the design of the facility. 
35	Access roads to and within the facility must comply with CFA’s Design Requirements - Vehicle Access and Water Supply Requirements in Residential Developments (2022). https://www.cfa.vic.gov.au/ArticleDocuments/405/Vehicle%20access%20and%20water%20supply%20guidelines%20in%20residential%20developments%20(Red%20Book)%20v1.0.pdf or any other design requirements the CFA may introduce in relation to vehicle access and water supply for renewable energy facilities.
36	Before plans are endorsed under condition 2, an Emergency Management Plan (EMP) and Fire Management Plan (FMP) must be submitted to and approved by the responsible authority. The EMP and FMP must be prepared in consultation with the CFA and be in accordance with the CFA Guidelines. 
37	Before the use commences, all fire protection measures shown on the endorsed plans (including separation distances, emergency vehicle access, firefighting water supply and equipment, and fire breaks) must be implemented. The fire protection measures must be maintained on a continuing basis for the life of the permit, to the satisfaction of the responsible authority.
DEPARTMENT OF ENERGY, ENVIRONMENT AND CLIMATE ACTION (DEECA)
Notification of permit conditions
38	Before works start, the permit holder must advise all persons undertaking the vegetation removal or works on site of all relevant permit conditions and associated statutory requirements or approvals.
Endorsed plans
39	The DELWP Native Vegetation Removal Report (ID: NGH_2023_007, dated 30/03/2023) must be endorsed and form part of this permit
Amended plans
40	Before any native vegetation removal begins, Maffra Solar Farm Vegetation in the Study Area (NGH 2023) must be amended where necessary and submitted to and approved by the responsible authority. When approved, the responsible authority will endorse the plans, which will then form part of this permit. The plan must be updated to include:
(a)	Identification of patch vegetation to be removed under this permit
(b)	Identification of trees to be removed under this permit
Protection of native vegetation and/or trees to be retained 
41	All trees and native vegetation patches not included in the Native Vegetation Removal Report must be retained and protected.
42	Before works start, a native vegetation protection fence must be erected around all trees and native vegetation patches to be retained. 
This fence must be erected around the patch of native vegetation, groupings of native scattered trees and each scattered tree that cannot be fenced in a group at a distance of 15 metres from the retained native vegetation. 
The vegetation protection fence must be constructed of star pickets, chain mesh or similar to the satisfaction of the responsible authority. 
The fence must include a notice advising on the purpose of the Tree/ Vegetation Protection Zone. 
The native vegetation protection fence must remain in place and be maintained until all works are completed to the satisfaction of the responsible authority.
43	Except with the written consent of the responsible authority, within the area of native vegetation to be retained and any tree or vegetation protection zone associated with the permitted use and/or development, the following is prohibited:
(a)	vehicular or pedestrian access during the construction period unless the access is required to undertake an action required in this permit such as placement of habitat logs, installation of nest boxes and 
(b)	trenching or soil excavation
(c)	storage or dumping of any soils, materials, equipment, vehicles, machinery or waste products
(d)	entry and exit pits for the provision of underground services
(e)	any other actions or activities that may result in adverse impacts to retained native vegetation.
Native vegetation permitted to be removed, destroyed or lopped
44	The native vegetation permitted to be removed, destroyed or lopped under this permit is 3.758 hectares of native vegetation, within Location category 2 and is comprised of:
(a)	3.516 hectares of patch vegetation; and
(b)	4 scattered large trees.
Native vegetation offsets
45	To offset the removal of 3.758 hectares of native vegetation, the permit holder must secure the following native vegetation offset in accordance with Guidelines for the removal, destruction or lopping of native vegetation (DELWP 2017):
(a)	a general offset of 1.323 general habitat units:
i	located within the West Gippsland Catchment Management boundary or Wellington Shire municipal area.
ii	with a minimum strategic biodiversity value of at least 0.402. 
iii	the offset secured must provide protection of at least 4 large trees.
46	Before any native vegetation is removed, evidence that the required offset has been secured must be provided to the satisfaction of the responsible authority. This evidence must be one or both of the following:
(a)	an established first party offset site including a security agreement signed by both parties, and a management plan detailing the 10-year management actions and ongoing management of the site, and/or
(b)	credit extract(s) allocated to the permit from the Native Vegetation Credit Register.
Offset evidence
47	A copy of the offset evidence will be endorsed by the responsible authority and form part of this permit. Within 30 days of endorsement of the offset evidence, a copy of the endorsed offset evidence must be provided to Planning & Approvals at the Department of Energy, Environment and Climate Action Planning Gippsland regional office via Gippsland.Planning@delwp.vic.gov.au
Expiry – Development and Use
48	This permit will expire if one of the following circumstances applies:
(a)	The development is not started within 3 years of the issued date of this permit.
(b)	The development is not completed within 6 years of the issued date of this permit.
(c)	The use does not start within 2 years of completion of the development.
In accordance with Section 69 of the Planning and Environment Act 1987, an application may be submitted to the Responsible Authority for an extension of the periods referred to in this condition

– End of conditions –