RED DOT DECISION SUMMARY
The practice of VCAT is to designate cases of interest as ‘Red Dot Decisions’. A summary is published and the reasons why the decision is of interest or significance are identified. The full text of the decision follows. This Red Dot Summary does not form part of the decision or reasons for decision.

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P65/2020
Permit Application no. PA1700284	

in the matter of	Hopkins v Minister for Planning	
BEFORE	Geoffrey Code, Senior Member	

Nature of case	Wind energy facility (the ‘Alberton Wind Farm’)
Preliminary hearing to determine compliance with clause 52.32-3 Wellington Planning Scheme	
Location of passage of interest	[81]-[107]: Effect of non-compliance with clause 52.32-3
[108]-[169]: Whether non-compliance with clause 52.32-3 should be disregarded	
REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE 	
Legislation – interpretation or application of statutory provision	Clause 62 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998	
Planning scheme – interpretation or consideration of VPP provision	Clause 52.32-3: Requirement to provide evidence of the consent of an owner of an existing dwelling within one kilometre of a proposed turbine
Clauses 52.32-2: Whether effect of non-compliance with clause 52.32-3 is that use or development of a wind energy facility is prohibited	
Summary

Clause 52.32-3 requires a person who applies for permission to use and develop a wind energy facility to provide evidence of the consent of any owner of an existing dwelling that is within one kilometre of a proposed turbine.

Synergy Wind Pty Ltd gave the Minister for Planning evidence of the consent of such owners when it applied for permission in 2017 to use and develop the Alberton Wind Farm.  The Minister decided to grant a permit subject to conditions.

Objectors who applied to the Tribunal to review the Minister’s decision disputed that Synergy Wind Pty Ltd had complied with clause 52.32-3.

In a preliminary hearing, the Tribunal found there were three dwellings within one kilometre of a proposed turbine and that Synergy Wind Pty Ltd had not provided evidence of the consent of the owners of those dwellings.

The Tribunal found the effect of clause 52.32-2 was that if such evidence was not provided, the use and development for a wind energy facility is prohibited.

The Tribunal refused applications by Synergy Wind Pty Ltd that the Tribunal disregard the non-compliance with clause 52.32-3 and that the Tribunal amend the permit application to cure the non-compliance by relocating or deleting proposed turbines.  The Tribunal went on to set aside the Minister’s decision and to refuse to grant a permit.

The Tribunal’s decision is of interest because it:
(a)	confirms the important policy behind clause 52.32-3 and the legal effect of that sub-clause;
(b)	illustrates the potential difficulties for a permit applicant in identifying existing dwellings and the importance of rigour in such identification;
(c)	confirms the wide power of the Tribunal to disregard non-compliance with a ‘planning enactment’ (such as clause 52.32-3) under clause 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 and illustrates the caution with which that power will often be exercised; and
(d)	is another example of the Tribunal’s reluctance to amend a permit application under clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 outside of the requirements of the Tribunal’s practice note PNPE9.

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P65/2020
permit application no. PA1700284	

CATCHWORDS	
Section 82 of the Planning and Environment Act 1987;  Wellington Planning Scheme;  Wind energy facility;  Preliminary hearing;  Whether permit application includes evidence of consent of owners of all existing dwellings within one kilometre of a proposed wind turbine;  Whether any non-compliance should be disregarded;  Whether it would be in the interests of justice to disregard non-compliance	

APPLICANTs	Daniel Richard Hopkins
and the other persons listed in Appendix A	
responsible authority	Minister for Planning	
REFERRAL authorities	Department of Environment, Land, Water & Planning
VicRoads
West Gippsland Catchment Management Authority	
respondent	Synergy Wind Pty Ltd	
SUBJECT LAND	Land Between Hedley, Alberton and Yarram in South Gippsland	
WHERE HELD	Melbourne	
BEFORE	Geoffrey Code, Senior Member	
HEARING TYPE	Hearing	
DATE OF HEARING	28 & 29 September 2020	
DATE OF ORDER	7 October 2020	
CITATION	Hopkins v Minister for Planning (Red Dot) [2020] VCAT 1124	

Order
Declaration
1	I declare that permit application PA1700284 did not include the written consent of the owner of the existing dwellings at:
•	90 Dawsons Road, Alberton,
•	35 Dawsons Road, Alberton, and
•	Lot 7A Dawsons Road, Alberton,
that are located within one kilometre of a proposed turbine that forms part of a wind energy facility, as required by clause 52.32-3 of the Wellington Planning Scheme.
Application to disregard non-compliance refused
2	The respondent’s application that the non-compliance with clause 52.32-3 of the Wellington Planning Scheme be disregarded is refused.
Application to amend permit application refused
3	The respondent’s application that permit application PA1700284 be amended is refused.
Decision set aside
4	The responsible authority’s decision dated 22 December 2019 is set aside.  No permit is granted.
Hearing vacated
5	The merits hearing scheduled to commence on 12 April 2021 is vacated.  No attendance is required.

Geoffrey Code
Senior Member			

Appearances
By videoconference

For Daniel Richard Hopkins	In person	
For Jennifer Anne Bland & Others	No appearance	
For Valda Susan Sedman & Others
and
For Jaqualene Schneider & Others	Mr Geoff Lake of Counsel, instructed by Mr Alex Kostas of McDonald Murholme Lawyers.
He called the following witnesses who gave sworn evidence and were examined:
•	Ms Kim Scott
•	Ms Valda Sedman
Ms Scott & Ms Sedman adopted unsigned affidavits as their written evidence.
Mr Lake tendered unsigned affidavits of:
•	Mr Richard Schneider
•	Mr Alan Stackhouse
•	Ms Jacqualene Schneider
Mr Lake tendered the affidavits affirmed on 7 September 2020 of:
•	Ms Natalie Saliakos
•	Mr Graeme James	
For Maree Avery & Others	No appearance	
For Graeme Robert James	In person	
For Andrew Lester	No appearance	
For Neil Percival Chandler & Others	Mr Neil Chandler	
For Robert John Davies & Others	Mr Robert Davies	
For Neil Roland Griffin	No appearance	
For Robert Douglas Wilson & Others	No appearance	
For Sarah Ann Gregory & Others	Ms Sarah Gregory	
For Larissa Ann Clark & Others	Ms Larissa Ann Clark	
For Andrew Macmeikan & Others	Mr Andrew Macmeikan	
For Penny & David Conn	No appearance	
For Glen Cameron Moore	No appearance	
For Sharon Dohnt & Others	No appearance	
For Minister for Planning	Ms Carley Robertson of Counsel, instructed by Hall & Willcox Lawyers	
For VicRoads	No appearance	
For Department of Environment, Land, Water & Planning	Mr Michael Juttner	
For West Gippsland Catchment Management Authority	No appearance	
For Synergy Wind Pty Ltd	Mr Barnaby Chessell of Counsel, instructed by Ms Michelle Keen of White & Case Lawyers
He called the following witnesses:
•	Ms Carolie Spitzner, project manager 2017 - 2019, Alberton Wind Farm, Synergy Wind Pty Ltd
•	Mr Bernard Stewart, principal town planner, Beveridge Williams Pty Ltd
Sworn affidavits signed by Ms Spitzner on 31 May 2020 and 16 September 2020 and a sworn affidavit signed by Mr Stewart on 1 June 2020 were tendered and adopted by those witnesses as their written evidence.	
Information
Brief description of proposal	The proposal is known as the ‘Alberton Wind Farm’.
It is characterised as a wind energy facility under the Wellington Planning Scheme.
The wind energy facility includes the use and development of 34 wind turbines, of which 30 will have a maximum height of 200 metres and 4 will have a maximum height of 180 metres.
The cost of development of the wind energy facility is stated to be $450 million.	
Nature of proceeding	Application under section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit 	
Planning scheme	Wellington Planning Scheme	
Zones and overlays
(according to the responsible authority’s officer’s report)	Most of the land is in the Farming Zone, but parts are in other zones.
Parts of the land are affected by the Environmental Significance Overlay, Design & Development Overlay, Heritage Overlay, State Resources Overlay, Bushfire Management Overlay, Floodway Overlay & Land Subject to Inundation Overlay.	
Permit requirements
(according to the responsible authority’s officer’s report)	Clauses 33.01-1, 35.07-1 & 36.03-1 (each for use of land for a wind energy facility)
Clauses 33.01-4, 35.07-4, 36.03-2, 42.01-2, 43.02-2, 44.03-2 &44.04-2 (each for development of land for a wind energy facility)
Clauses 42.01-2 & 52.17-1 (for removal of vegetation)
Clause 52.29-2 (to alter access to a Road Zone Category 1)
Clause 52.32-2 (to use and develop a wind energy facility)	
Date permit application received	15 September 2017	
Date permit application amended
(according to the responsible authority’s officer’s report)	3 August 2018	
Decision date	22 December 2019	
Background documents	Victoria, Department of Environment, Land, Water and Planning, Development of Wind Energy Facilities in Victoria: Policy and Planning Guidelines (March 2019)	
Land description	The land has a site area of about 3,200 ha.  It starts about 3 km south-west of Yarram, South Gippsland and extends south and then west to a point that is about 15 km south-west of Yarram.  The surrounding towns are Alberton, Port Albert and Port Welshpool.  A more particular description of the land is included in the notice of decision.	
Tribunal inspection	I did not need to inspect all or part of the subject land or of any of the other land referred to in these reasons to determine the matters in this preliminary hearing	

Reasons
What is this proceeding about?
1	Synergy Wind Pty Ltd (in these reasons, Synergy Wind) applied to the Minister for Planning (the Minister) for permission under the Wellington Planning Scheme (the Scheme) to use and develop what has been described as the Alberton Wind Farm (the wind farm) in South Gippsland.
2	The Minister issued a notice of decision to grant a permit.  More than 100 individuals opposed to the wind farm have lodged 17 separate applications with the Tribunal seeking review of the Minister’s decision.
3	In this preliminary hearing, my task is to determine the following issues:
(a)	Whether the permit application was validly made, having regard to the requirements of clause 52.32-3 of the Scheme.
(b)	If Synergy Wind failed to comply with those requirements, whether the Tribunal should disregard that failure.
Summary of findings
6	Synergy Wind did not comply with the requirements of clause 52.32-3 and did not include the written consent of the owner of every existing dwelling within one kilometre of a proposed wind turbine in the wind farm.
7	Despite the non-compliance, the Tribunal has jurisdiction to determine the proceeding.
8	The effect of the non-compliance is that a permit may not be granted to use or develop the wind farm.
9	Synergy Wind has applied for an order that I disregard its failure to comply with the requirements of clause 52.32-3 so that the permit application may proceed to be determined on its merits in a merits hearing of the review application.
10	In support of its application for an order that I disregard its failure to comply with the requirements of clause 52.32-3, Synergy Wind has applied to amend the permit application to cure the non-compliance.
11	If I were to disregard the failure to comply with the requirements of clause 52.32-3, I must be satisfied that it would be in the interests of justice to do so.
12	My ultimate finding is that it would not be in the interests of justice to disregard the failure to comply with the requirements of clause 52.32-3.
13	Accordingly, the application is for a prohibited use and development.  I will set aside the Minister’s decision and no permit will be granted.
clause 52.32 requirements
14	For the purposes of this preliminary hearing, there are two relevant requirements in clause 52.32 of the Scheme.
15	The first requirement is clause 52.32-3.  It provides:
Turbine within one kilometre of a dwelling
An application that includes a proposed turbine within one kilometre of an existing dwelling must be accompanied by:
•	A plan showing all dwellings within one kilometre of a proposed turbine (measured from the centre of the tower at ground level).
•	Evidence of the written consent of any owner as at the date of that application of an existing dwelling located within one kilometre of a proposed turbine (measured form the centre of the tower at ground level) …
16	I will refer to this requirement as the consent requirement.
17	The second requirement sets out the consequences of non-compliance with the consent requirement.  Clause 52.32-2 relevantly provides:
The use and development of land for a Wind energy facility is prohibited at a location listed in the table to this clause unless the condition opposite the location specified in the table is met.
Table to Clause 52.32-2
Location	Condition	
On land where any turbine (measured from the centre of the tower at ground level) that forms part of the facility is located within one kilometre of an existing dwelling  ...	Must meet the requirements of clause 52.32-3.	
18	Synergy Wind submits it included the plan and the evidence of consent from the owners of 17 dwellings existing on the date the application was lodged with the Minister.  The Minister was satisfied the consent requirement was met but, according to the submissions on behalf of the Minister, the Minister largely relied on the accuracy of Synergy Wind’s plan and evidence.
19	The third and fifteenth applicants contend the consent requirement was not met.  I will refer to the third and fifteenth applicants as the applicants in these reasons because they have advanced the contentions and the other applicants (with the exception of Mr James) were content to take no active part in the preliminary hearing.
What is the date of the application?
20	The consent requirement refers to an existing dwelling as at the date of the application.  I have listed in the Information section of these reasons that Synergy Wind lodged the application on 15 September 2017.  There is no doubt the consent requirement applies to an existing dwelling on that date.
21	However, I have also listed that the Minister amended the application at Synergy Wind’s request on 3 August 2018 before public notice of the application was given.  The amendment is referred to in the officer’s report prepared for the Minister’s consideration.
22	A potential issue therefore arises as to whether the consent requirement had to be again met on 3 August 2018.  If an application is amended before notice is given, ‘the amended application is to be taken … to have been received on the day that the applicant agreed to the amendment’.
23	On the other hand, Synergy Wind drew my attention to Cumming v Minister for Planning in which the Supreme Court stated that the application requirements (including the submission of a pre-construction noise assessment) in clause 52.32-4 did not apply to an application made before the requirement was introduced.
24	I do not consider myself bound by that decision for two reasons.  First, the case did not involve an amendment to an application before notice.  It involved the introduction of the requirement after the application was lodged and before it was decided and whether the requirement applied to the application.  Second, it applied to a different application requirement under clause 52.32-4 and was not an application requirement given any effect under the clause 52.32-2 condition (in the manner of the consent requirement).
25	After hearing the parties on what was included in the amendment, I also have doubts that the amendment is properly characterised as an amendment.  Nothing about the proposal for which permission was sought was changed in any material way.  Based on the submissions I heard and having regard to my reasoning in 3 Dickens Street Pty Ltd v Boroondara CC, the so-called amendment could have been fairly characterised as additional information and would not have been characterised as an amendment.
26	I do not need to make a finding about whether the consent requirement applied afresh on the date the application was amended.  This is because the parties agree that none of the so-called amendments materially altered the location of any of the 34 proposed wind turbines and there was no change to the number and location of existing dwellings within one kilometre of any one of those turbines between the two dates.  Accordingly, the parties agreed that the issue does not arise.
Is the consent requirement met?
27	In part, this can be disposed of quickly because Synergy Wind concedes the consent requirement has not been met for a dwelling at 90 Dawsons Road, Alberton.  
28	In part, it cannot be disposed of quickly because the applicants also contend it is also not met in relation to four other dwellings at 35 Dawsons Road, Alberton; Lot 7A Dawsons Road, Alberton; 110 Bird Road South, Hedley & 299 Ti Tree Road, Alberton.  Synergy Wind opposes that contention.
29	The Minister’s position is, in effect, to abide by my findings on those dwellings.
30	Significant time at the hearing was taken in hearing evidence and submissions on these other dwellings.  I will not refer to the whole of this material.
Dwelling at 90 Dawsons Road, Alberton
31	Synergy Wind contends it was unable to obtain the consent of the owner of the dwelling on this land before the permit application was lodged and so decided to relocate turbine 27 (being the turbine closest to this dwelling) to a point outside one kilometre of the dwelling.
32	Based on steps Mr James took to challenge the accuracy of the relocation, Synergy Wind now agrees that the distance between the relevant point of turbine 27 to the nearest point of the dwelling is 996 metres.  Accordingly, it concedes the requirement is not met.
Dwelling at 35 Dawsons Road, Alberton
33	The sworn evidence of the current owner of the land, Ms Scott, is that in 2016 she bought the land on which the dwelling is located.  She agrees the dwelling was likely to have been constructed as a dairy about 60 years ago.  Her evidence is that a previous owner converted the dairy to a dwelling around 1985 and used it as a ‘weekender’ for about 30 years before her occupation.
34	While she agrees that she bought the land to graze cattle and that she regularly stays overnight elsewhere with a family member, her evidence is that she stays overnight in the dwelling on average 3 or 4 nights per week while working on the land 6 or 7 days per week on average.
35	The dwelling is 452 metres from turbine 33 and also within 757 metres of turbine 32 and 761 metres of turbine 27.
36	Synergy Wind contends the dwelling was not an existing dwelling for three reasons.
37	First, it contends the dwelling was not lawful as there is no record of a required planning permit for its construction (ie conversion).  Synergy Wind contends an existing dwelling for the purposes of the consent requirement must be lawful.
38	While I would need to consider carefully if the dwelling had been unlawfully constructed immediately before 17 September 2017 as a sham to engage the consent requirement, the evidence is it was a dwelling well before that date.  Synergy Wind relies on the evidence of Mr Stewart who states the land is in a Farming Zone under the Scheme and, as the land is only 7.2 ha, planning permission was required to construct a dwelling.
39	Synergy Wind also relies on Mr Stewart’s evidence that he obtained email advice from the Wellington Shire Council (the Council) on 8 September 2017 and 5 March 2019 that the Council has no record of a either ‘a dwelling’ or ‘planning or building approval for a dwelling’.
40	Synergy Wind’s evidence that prima facie the dwelling is unlawful does not discharge its onus.  
41	There is inadequate evidence about whether permission was required when the conversion occurred.  Reliance on current requirements for permission is insufficient.  
42	The Council’s email responses are inconclusive.  They are contradicted by Mr James’ evidence that the Council gave him oral advice on 5 August 2020 that it had located a permit issued in 2004 to retrospectively convert the building to a dwelling.  The Council also gave Mr James on 21 August 2020 a copy of a spreadsheet of planning permissions that referred to ‘permit 111/2004’ issued for ‘construction of a dwelling’ on the land.
43	Second, Synergy Wind relies on Mr Stewart’s evidence that he obtained imagery of the dwelling when the land was sold in 2016 which, in his opinion, ‘does not appear to include a permanent habitable structure’.  It also relies on Ms Spitzner’s evidence that she observed the buildings on the land from Dawsons Road in late 2015 and early 2016 and concluded the building was ‘dilapidated’ and ‘unfit’ to live in.  This evidence is not probative.
44	Ultimately Synergy Wind did not seriously dispute that the building included on 15 September 2017 the four physical elements required by the Scheme for a dwelling.  Based on Ms Scott’s evidence, I find those elements existed.
45	Third, Synergy Wind also contends the land was being used for grazing (not residential use) and it was not being used as a self-contained dwelling.  Ms Scott’s evidence does not support this contention.  Ms Scott’s evidence was not shaken by cross examination.  Even if the primary purpose of the use of land is agriculture, this does mean a dwelling on that land cannot be also used for a dwelling.  For example, a typical  ‘farm house’ is usually also used for the purpose of a dwelling.
46	In conclusion, 35 Dawsons Road, Alberton was an existing dwelling and is located within one kilometre of proposed turbines 27, 32 & 33 and Synergy Wind did not submit evidence of the consent of Ms Scott with its permit application.
Dwelling at Lot 7A Dawsons Road, Alberton
47	The applicants rely on the statement of Alan Stackhouse.  Mr Stackhouse’s late father is the one of the current joint proprietors of the land.  Mr Stackhouse states there is a ‘small prefabricated house’ on the land and he included photographs of the exterior and interior taken by Mr James after the permit application was lodged.
48	The photographs show a simple cabin-like structure about 10 metres long and three metres wide with a water tank nearby.  It includes a small covered entry.  They also show that although the building has just one living and sleeping area for two single beds (in what might be described as a bedsitter format), it has the four required physical elements of a dwelling.
49	Mr Stackhouse states the photographs are consistent with his recollections of earlier visits to the building.  Mr James’ evidence is that he observed those elements on his visit.  Having regard to the likely date of the interior and its fixtures, I find the four elements would have existed as at 15 September 2017.
50	Mr Stackhouse goes on to state that his father lived regularly at the dwelling as his principal place of residence from around 2010 until his death on 24 August 2019.
51	Synergy Wind contends the dwelling was not lawful as there is no record of a required planning permit for its construction.  It relies on Mr Stewart’s evidence of email advice he obtained from the Council on 5 March 2019 that the Council’s only planning and building approval record reveals a ‘building approval for a shed’.  It relies on Mr Stewart’s opinion that the lot is 9.7 ha and that in the Farming Zone permission is required to construct a dwelling on a lot less than 40 ha.
52	Synergy Wind’s evidence that prima facie the dwelling is unlawful does not discharge its onus.  Synergy Wind did not produce any evidence about when the building was constructed on the land or what was the relevant parcel (and its size) on that date.  Therefore, Synergy Wind’s submission that planning permission was required is inconclusive.
53	There is inadequate evidence about whether permission was required when the conversion occurred.  It is inadequate to refer to current requirements for permission.  The brief reference by the Council to a building approval is inconclusive.
54	Finally, Synergy Wind also relies on Mr Stewart’s opinion that, following inspection of aerial imagery, the building is small and ‘it is not apparent that it is connected to electricity supply’.  There is no reason why a small ‘bedsitter’ building of about 30 m2 floor area cannot be a dwelling.  The existence or otherwise of mains power connection is not relevant to whether a building is a dwelling.
55	In conclusion, I find the dwelling is an existing dwelling.  The dwelling is 707 metres from proposed turbine 33 and Synergy Wind did not submit evidence of the consent of the owner of the dwelling with the permit application.
Dwelling at 299 Ti Tree Road, Alberton
56	The applicants rely on Ms & Mr Schneider’s statements and Mr James’s affidavit.  It is not in dispute that Ms & Mr Schneider owned the land on 15 September 2017.
57	Ms Schneider’s statement states she and Mr Schneider were living nearby at 307 Ti Tree Road before and on 15 September 2017.  In accordance with planning permission they say they obtained in 2009 (and extended in 2014) to construct a dwelling at 299 Ti Tree Road, they constructed a building relocated from Berwick in February 2015 on that land.  They say it was intended to be a family home for them and their two children.
58	The contemporaneous photographs of the exterior of the building show what appears to be a typical two or three bedroom cabin-style home, with external stained pine boards, a low gradient steel roof, and a verandah on two sides.  Synergy Wind does not dispute that, on 15 September 2017, the building contained the four physical elements of a dwelling.
59	Synergy Wind relies on Mr Stewart’s evidence and Ms Schneider’s statement in its contention that the dwelling was not an existing dwelling because it was not used as a self contained residence on 15 September 2017.
60	Ms & Mr Schneider state they were not aware of the wind farm before the permit application was lodged with the Minister.  They state they brought the dwelling to the Department of Environment, Land, Water and Planning’s (the Department) attention shortly afterwards on or around 18 September 2017.  The Department then contacted Synergy Energy for more information and Mr Stewart was then asked by Synergy Wind to visit the land.  
61	On 20 September 2018, Mr Stewart visited the land with the purpose of getting GPS coordinates so that the distance from the nearest point of the dwelling to the nearest proposed turbine could be accurately measured.  With Ms Schneider’s permission, he inspected the inside of the dwelling.  
62	Mr Stewart took and exhibited two photographs of the kitchen and bathroom showing, in his opinion, no occupation of the dwelling, in part due to extensive droppings from birds that had entered the building.  He also saw no evidence of a septic tank or other wastewater treatment facility which led him to believe the kitchen sink, bathroom and toilet were not in operation which would make occupation difficult, if not unlawful.
63	Mr Stewart went on to make inquiries of the Council about the issue of an occupancy permit and he was told that, as at 23 August 2018, no such permit had been issued.
64	Ms Schneider’s statement confirms her recollection that the first evening her family slept in the building was in February 2018.  After an occupancy permit was issued on 5 February 2019, she stated the building began to be continuously occupied by the Schneider family in April 2019.
65	At the hearing, the applicants submitted that on 15 September 2017 the Schneiders intended to use the building as a dwelling.  Having regard to use being defined in the Planning and Environment Act 1987 (the PE Act) (and, hence, in the Scheme) as to include proposed use, evidence of proposed use of a building for a dwelling is sufficient to constitute use for a dwelling.  
66	There is nothing gleaned from the purpose of clause 52.32-3 that would support the meaning of ‘an existing dwelling’ to include a building partly or wholly constructed for the purposes of a dwelling but not yet used for that purpose on the date a permit application is lodged.
67	The building was not a dwelling on 15 September 2017 because it did not begin to be used as a self contained residence until April 2019.
68	The Schneiders’ current dwelling is 769 metres from proposed turbine 27 and 970 metres from proposed turbine 22.
69	The Schneiders might consider themselves unfortunate that their dwelling was not an existing dwelling for the purposes of clause 52.32-3 and that Synergy Wind was not required to obtain their consent to the two proposed turbines being located within one kilometre of the dwelling.  They do not have what has therefore been described as veto right for the location of these two turbines.  However, that is the effect of clause 52.32 and I must give proper and lawful effect of the clause.
Dwelling at 110 Birds Road South, Hedley
70	The applicants rely on the statement and evidence of Ms Sedman and the affidavit of Mr James.  Ms Sedman is a co-owner of this land.  The land has an area exceeding 40 ha.
71	Ms Sedman’s evidence is that there is a dwelling on the land that is hidden in deep bush and has been used as a ‘retreat’ or ‘holiday house’ for members of her family and their friends for many generations of her family.  She states she and her family have lived and stayed overnight in the dwelling for about one week per month on average for many years.  With larger family gatherings, children sleep in tents near the dwelling.
72	The photographs in Ms Sedman’s statement appear to show the dwelling containing a living area and a bedroom and a food preparation area.  There is an outside (ie uncovered) sink next to a water tank for washing dishes and hands etc.  There is an outside shower also next to the water tank around which a small privacy tent is placed when the dwelling is in use.  There is an outside toilet (described as a ‘eco’ or composting toilet) not attached to a wastewater facility such as a septic tank and the toilet is in a small enclosed and covered structure about 20 metres from the dwelling.
73	It is not in dispute that the dwelling is regularly used as a holiday home.  Synergy Wind disputes it is a dwelling as defined in the Scheme because it is not used as a self-contained dwelling and does not contain a kitchen sink, a bath or shower or a toilet with a wash basin.
74	I find the building is not a dwelling as defined in the Scheme.  It does not contain a kitchen sink.  Ms Sedman’s evidence is that a portable container in the shape of a sink is filled with water obtained from the outside tank and carried inside to wash dishes and the sullage is back carried outside for disposal on the land.  In my opinion, a kitchen sink for the purposes of the definition must be a sink connected to running water and must have a plug and outlet.
75	As well, the outside shower is rudimentary, uncovered by a roof and is not a shower in a self-contained residence.
76	Whether the building is a dwelling therefore does not turn on whether it contains a ‘toilet and wash basin’.  The toilet raises some problematic issues.  The fact the toilet is not within (or under the roof of) the holiday home is not determinative.  In many older dwellings, a toilet is external to the dwelling, often off a rear verandah.  For the purposes of the definition, a toilet would need to be in a building with a roof.  The toilet on the land fits that description.
77	The remaining problem is that there must be wash basin in or near the toilet.  There is no evidence the toilet includes a wash basin.  The evidence is that people need to walk back to the building and wash their hands in the external sink next to the water tank.  Consequently, I doubt this is a toilet for the purpose of the definition but, as I have said, it is unnecessary to make a finding about that.
78	The building is 350 metres from proposed turbine 2.  However, as the building is not a dwelling, it is not an existing dwelling and Synergy Wind was not required to obtain Ms Sedman’s consent.
79	In conclusion, the building on the land is within one kilometre of proposed turbine 2 but it is not an existing dwelling and Synergy Wind has not failed to comply with the consent requirement.
Conclusion
80	The dwellings at 90 Dawsons Road, 35 Dawsons Road and Lot 7A Dawsons Road are existing dwellings within one kilometre of a proposed turbine for the purposes of the consent requirement and Synergy Wind failed to include the consent of the owners of those dwellings.
consequences of non-compliance
81	Based on the submissions of the parties, two issues arise from a finding of non-compliance with the consent requirement.
Jurisdiction
82	The applicants rely on a jurisdiction objection.  They contend that if the consent requirement is not met, the Minister did not have jurisdiction to determine the application at first instance.  They contend the permit application was not a valid permit application and the Tribunal should simply strike out the application for review because of that invalidity.
83	This objection can be promptly disposed of.  The Tribunal is seized with jurisdiction in a review application under the PE Act even if the Minister, as the primary decision maker, did not have the power to make the primary decision.
84	The applicants err in their submission that I should simply strike out the permit application.  I cannot strike out the permit application.  I could strike out the review application but that is of no assistance to the applicants because it would mean the Minister’s decision to grant a permit would be unchallenged and a permit would issue.
What is prohibited under clause 52.32-2?
85	The applicants and the Minister submit that if the compliance requirement is not met, the use and development of land for a wind energy facility is prohibited and no permit may be granted.  They submit this is the normal effect of failing to meet a mandatory condition for a permissible use.
86	I have already set out clause 52.32-2.  It provides the use and development for a Wind energy facility is prohibited at a location listed in the table to the clause if the compliance requirement is not met, as I have found.  The table states the location is:
On land where any turbine (measured from the centre of the tower at ground level) that forms part of the facility is located within one kilometre of an existing dwelling.
87	I have highlighted the reference to ‘location’ because Synergy Wind submits the prohibition does not apply to the whole of the subject land but only to ‘the location’ or that part of the subject land in which the compliance requirement is not met.  
88	Synergy Wind submits that the table states ‘the location’ is land within one kilometre of an existing dwelling, being 90 Dawsons Road.  This is a very small part of the subject land being a few square metres near that dwelling.
89	Synergy Wind submits the default position of permission being necessary (and able to be granted) applies to any land that does not fall within a specified location.  In this way, Synergy Wind submits clause 52.32-2 does not disturb the purpose of the clause of providing an owner of land containing an existing dwelling within one kilometre of a proposed turbine with a power of veto over the location of that turbine.
90	Synergy Wind submits the drafters of clause 52.32-2 did not intend to apply the normal provision contended by the applicants and the Minister.  It submits the drafters used the phrases ‘at a location’ and ‘the location’ because they did not intend the prohibition to apply across the whole of the subject land.
91	Having regard to my finding about existing dwellings, I must modify and extend Synergy Wind’s submission to the effect that any prohibition should apply only to locations within one kilometre of the three existing dwellings, not just the dwelling at 90 Dawsons Road. 
92	The practical effect of Synergy Wind’s submission is that it would be open to Synergy Wind to apply to the Tribunal to amend the permit application to excise the relevant locations from the permit application to make clear that no permission was being sought to use or develop land for a wind energy facility in those locations.
93	The parties were not able to take me to any Court or Tribunal authority on the meaning and effect of ‘location’ within clause 52.32-2.
94	The original two kilometre rule was introduced in 2011.  The explanatory report for the relevant amendment does not assist.  It does not refer to the intended effect of ‘location’ and whether a permit application is prohibited in whole or in part if there is a proposed turbine in the area affected by the application that is within two kilometres of an existing dwelling.
95	The one kilometre rule was introduced in 2015.  The explanatory report for the relevant amendment also does not assist for the same reasons.
96	While the matter is not free of doubt, in my opinion the drafters of the relevant amendments did not intend the narrower interpretation contended by Synergy Wind.
97	While I have tried to give effect to the ‘location’ provisions of clause 52.32-2, I find ‘location’ does not add anything of significance to the clause and it should read as if ‘location’ meant ‘land’.  This better accords with the opening word in the table.  If the drafters of the clause had intended ‘location’ to mean ‘part of the land in the application’, they could have drafted the clause accordingly.
98	It is relevant that clause 52.32-2 prohibits both use and development only if there is proposed ‘development’ of a turbine within one kilometre of an existing dwelling.  Even if Synergy Wind’s contentions are correct (which I do not find), I could not see how the default position of permission being required for ‘use’ could also be displaced.
99	From a policy viewpoint, the clause needs to be construed against a backdrop of amendments to clause 52.32 that have added to application requirements over the past decade.
100	I find it difficult to accept that the effect of clause 52.32 could be to allow an applicant to carelessly prepare an application with regard to the consent requirement.  A carelessly prepared application would shift the onus of proof from an applicant to an owner of an established dwelling.
101	Even if the owner of an existing dwelling could satisfy the Minister as first instance decision maker (or the Tribunal, on review) there was non-compliance, an applicant would have a path to escape a mandatory refusal by either filing a post-application consent or applying for an amendment to effectively disengage the consent requirement by relocation of a proposed turbine.
102	I do not see any intention in the Scheme as a whole to either reduce the required rigour in complying with the consent requirement or to shift the burden of identifying existing dwellings and submitting consent (or relocating turbines) from a permit applicant to an owner of an existing dwelling.  Such an intention would be contrary to the public interest in providing certainty that no turbine in a wind energy facility could be located within one kilometre of an existing dwelling.
103	The Minister drew my attention to the Department’s Advisory Note 47 that was published when the original two kilometre consent requirement was introduced in 2011.  It explained that ‘[e]vidence of written consent is required to change a proposal from being prohibited to being discretionary under the planning scheme’.
104	The Minister also drew my attention to Development of Wind Energy Facilities in Victoria: Policy and Planning Guidelines for the development of wind energy facilities.  The Guidelines are background or reference documents that a decision maker must consider, as appropriate, in deciding an application.  The Guidelines state:
The application is prohibited by the planning scheme where evidence of written consent is not provided.
An application is prohibited if the written consent of dwelling owners within one kilometre is not provided.
105	While the passages in these two documents support the submissions of the Minister and the applicants, I give them little weight in construing the consent requirement.  The passages are not expressly Government policy and therefore unable to be considered as policy.  They are documents that are advisory and/or guidelines.  It is unclear they were prepared at the same time as the consent requirement.  It is well established that a document prepared after a statutory provision is introduced that refers to the meaning of a provision must be given little weight in construing the provision.
106	I make a final observation that I would need to disregard non-compliance with the consent requirement whether I accepted the Minister’s and applicants’ broad construction or Synergy Wind’s narrow construction.
107	In conclusion, the effect of Synergy Wind’s non-compliance with the consent requirement is that, pursuant to clause 52.32-2, the whole of the use and development in the permit application is prohibited.
should non-compliance be disregarded?
108	Synergy Wind has applied for an order under clause 62 of schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) that I disregard the non-compliance with the consent requirement.
109	The effect of the order Synergy Wind seeks is to ensure that proposed turbine 27 is not prohibited and that turbine 27 can be considered on its merits at a future Tribunal hearing.
110	Synergy Wind’s application does not propose that the merits of proposed turbine 27 be considered in its location in the permit application but in a location outside the one kilometre distance from the dwelling at 90 Dawsons Road.
111	Synergy Wind states this can achieved by ‘micro-siting’ proposed turbine 27 to the north by ‘about 5 to 10 metres’ so that it is located more than one kilometre from the dwelling at 90 Dawsons Road.  In an absolute sense, I agree with Synergy Wind that the non-compliance is de minimus.
112	In support of this application, Synergy Wind also applies for an order under clause 64 of schedule 1 of the VCAT Act that I amend the permit application to relocate proposed turbine 27 in the proposed manner.
113	Having regard to my findings about the dwellings at 35 Dawsons Road and Lot 7A Dawsons Road, Synergy Wind’s application must be modified and extended to include:
•	An order that I disregard non-compliance under clause 62 with the consent requirement for existing dwellings at 90 Dawsons Road, 35 Dawsons Road and Lot 7A Dawsons Road (the three dwellings).
•	An order that the permit application be amended under clause 64 to relocate turbines 27, 32 & 33 so that they are not located within one kilometre of the three dwellings.
114	I will consider Synergy Wind’s application on this modified and extended basis.
115	The applicants and Minister oppose Synergy Wind’s application.
116	Requirements under a planning scheme may take a variety of forms.  Common ones are requirements that must be met in a permit application, requirements that apply to a particular use or development, and requirements that a particular use or development is prohibited, sometimes in specified circumstances.  The relevant scheme might make it clear the requirements are discretionary either generally or in specified circumstances.
117	I refer to this to characterise the consent requirement in this proceeding as a mandatory requirement the non-compliance with which renders prohibited a wind energy facility.  It is therefore at the more serious end of the non-compliance spectrum.  Synergy Wind likened the consent requirement to the requirement that was disregarded in Castik Investments Pty Ltd v Stonnington CC.  The requirement in that case was dissimilar as it was a discretionary requirement about information (in that case, a ‘site analysis’) that must accompany an application (in that case, for permission to construct dwellings).
118	I am bound by the authority of the Court of Appeal in Harvey v Mutsaers that the Tribunal has the power to disregard any failure to comply with a requirement under the PE Act or planning scheme regardless of effect.
119	The power is not limited to overcoming technical or procedural non-compliances.  Its purpose is to enable the Tribunal to determine a planning dispute in accordance with its substantive merits.  I would adopt the views expressed in other cases that the Tribunal should be cautious in disregarding a non-compliance and in my opinion should be very cautious in disregarding a non-compliance with a substantive mandatory requirement.
120	The power of the Tribunal is discretionary and the express statutory limitation on the exercise of that discretion is that the Tribunal must be satisfied it is ‘in the interests of justice’ to disregard the non-compliance.
121	The decision in this preliminary hearing accordingly turns on whether it is in the interests of justice to disregard Synergy Wind’s failure to provide the consents of the owners of the three dwellings.
122	In Stanley Pastoral Pty Ltd v Indigo SC, the Tribunal stated the ‘interests of justice’ is not defined in the VCAT Act.
123	Disregarding non-compliance will avoid the costs and delay to all parties of preparing, considering and deciding a fresh permit application.  However, I agree with the Tribunal in Stanley Pastoral that the interests of justice connote more than expediency.  The relevant matters to consider will vary according to the circumstance of a particular case.  The matters set out in Stanley Pastoral are a useful guide.  The parties adopted most of them in their detailed submissions.
124	Some factors tend to support disregarding non-compliance and some tend to oppose.  I must balance those factors in finding if it ultimately is in the interests of justice to disregard non-compliance.  I now set out my findings on the relevant factors.
Explanation for the non-compliance
125	Synergy Wind explains that the error in measuring the distance between the dwelling at 90 Dawsons Road as inadvertent.  This explanation is insufficient having regard to the mandatory nature of the consent requirement and its existence (in some form) since 2011, and to the investment cost of the wind farm, and the six or so years that have passed since it was mooted.
126	While not conceding any non-compliance, Synergy Wind explains that any non-compliance in relation to an existing dwelling at both 35 & Lot 7A Dawsons Road follows it making all reasonable inquiries and finding there was no existing dwelling on that land within one kilometre of proposed turbines 27, 32 & 33.
127	The reasonable steps that Synergy Wind relies on include inquiries of neighbours (including those who had agreed to host proposed turbines), inspection of aerial photography, inspections from the public realm at ground level, inquiries of the Council, and some correspondence to owners.
128	Synergy Wind also submits all owners of land in the vicinity of a proposed turbine should have been aware of the wind farm because of publicity about it in newspapers and on Synergy Wind’s website, erection of anemometers in some locations for several months, invitations to owners and occupiers to attend information meetings, and consideration of feedback forms from owners and occupiers who attended such meetings.  Synergy Wind also relied on the fact that the giving of notice of the permit application was out of its control and relied on data sourced by the Council.
129	I acknowledge that locating an existing dwelling is not a straightforward task having regard to various factors including difficult access, the limits to aerial photography, gathering facts to help determine whether the building is a dwelling as defined, and reliance on sometimes unreliable municipal data.
130	However, Synergy Wind’s efforts were not reasonable and its explanation is therefore inadequate.  Synergy Wind needed to do more to locate existing dwellings within one kilometre of proposed turbines.  In a real way, the future of the permit application depended on the thoroughness of the investigation.  It was unreasonable to:
•	rely on information from neighbours, some of whom were conflicted as turbine hosts and whose interests were served by advice to Synergy Wind that there was not an existing dwelling on a neighbour’s land;
•	rely on municipal data when that data was scant, unreliable and no probative for various reasons;
•	rely on an owner volunteering information on whether there was a dwelling on their land when the owner had no duty to disclose or be aware of the significance of a disclosure;
•	rely on a failure by an owner to not respond to written inquiries posted to the land without making adequate inquiries as to whether mail could be delivered to the land; and 
•	draw firm conclusions about the use of buildings from aerial photography or public realm views.
131	Reliance on the notice of the permit application being outside its control is not relevant because the necessary inquiries needed to be made and completed before the application was finalised and lodged.
132	This factor does not favour disregarding non-compliance.
Conduct
133	This factor essentially covers the same ground as the explanation ground that I have just dealt with.  Synergy Wind submits its conduct was reasonable and sufficient because it took all reasonable steps to determine existing dwellings within one kilometre of a proposed turbine.
134	Synergy Wind submits Ms Scott did not disclose a dwelling on her land at an information meeting or in a feedback form she completed, did not respond to mail posted to her land and did not object to the grant of a permit and is not a party to the proceeding.  I find nothing unreasonable in Ms Scott’s conduct.  Her evidence is that there was no mail box on her land at the time Synergy Wind wrote to her.
135	Synergy Wind submits Mr & Ms Schneider ought to have known about the proposal because they were living nearby in Dawson Road (in a dwelling not within one kilometre of a turbine), should have noticed the anemometer erected nearby months before the permit application was lodged, and their neighbours knew of the proposal and ought to have informed them.  None of these factors impugn Mr & Ms Schneider’s conduct and lead to any obligation on them to inform Synergy Wind about the dwelling.
136	Synergy Wind contends Ms Sedman spoke to Mr Stewart, as Synergy Wind’s representative, at an information meeting and she did not tell Mr Stewart about a dwelling on her land and only referred to her family regularly ‘camping’ on the land.  Synergy Wind also contends Ms Sedman stated she was negotiating to sell the land at the time of that meeting and that a prospective purchaser had expressed interest in constructing a ‘dream home’ on the land.
137	None of this conduct by these three owners mitigates or excuses Synergy Wind’s failure to identify the three dwellings as existing dwellings.
138	The applicants contend I should consider Synergy Wind’s conduct not only in relation to events leading to non-compliance with the consent requirement, but in relation to the consultation with the community generally with the wind farm overall.  The applicants relied on Mr James’ evidence about what he described as, in effect, a haphazard and non-transparent way in which owners and occupiers of land within 5 kilometres of a proposed turbine were informed or consulted about the proposal before the permit application was lodged.
139	In my opinion, the conduct of Synergy Wind that does not directly relate to complying with the consent requirement is not relevant to the application to disregard non-compliance.
140	Overall, this factor does not favour disregarding non-compliance.
Prejudice
141	There will be prejudice to Synergy Wind if the non-compliance is not disregarded because the consequences will be that the use and development in the permit application is prohibited and a permit must be refused and the scheduled merits hearing next year vacated.
142	Synergy Wind will incur costs and delay if it makes a fresh application.  As additional dwellings may have become established between 15 September 2017 and the date a new permit application is lodged, complying with the consent requirement may mean that some proposed turbines may have to be deleted or relocated and this is a prejudice.
143	The prejudice is mitigated to the extent Synergy Wind can instruct existing consultants to update former advice or reports to support a new application.  Synergy Wind would not be required to commission new reports from scratch from different consultants.
144	If compliance is disregarded, there will be prejudice to the owners of the three existing dwellings from a loss of a veto right, unless (as Synergy Wind seeks) the permit application is also amended to either delete the three relevant proposed turbines or relocate them so that they are more than one kilometre from each dwelling.  I will come back to the amendment shortly.
145	The prejudice must be assessed in the context of a loss of a veto right.  The relocation of a proposed turbine may still result in prejudice in a merits sense, but the owner would be in the same position as other owners and able to participate in a merits hearing.  Accordingly, provided an amendment to the permit application was made, there is limited prejudice to the owners of the three dwellings.
146	The applicants submitted I should take into account the prejudice to Ms Sedman and Mr & Ms Schneider if compliance is disregarded.  They will not suffer any relevant prejudice.  They will be in the same position in the sense they remain parties and able to participate in a merits hearing.  Any relevant prejudice to Mr & Ms Schneider has already been mitigated by permit conditions specific to their dwelling in the notice of decision.
147	This factor, on balance, tends to favour disregarding non-compliance.
Rights and privileges
148	It is relevant to consider the nature and merits of the permit application and whether circumstances have changed so that, but for disregarding non-compliance, a party may lose the benefit of a right or privilege.
149	The owners of the three dwellings would not lose a right or privilege if Synergy Wind’s application to disregard non-compliance was refused.
150	If the consent requirement remained in force and Synergy Wind made a fresh application for a permit, the owners of the three dwellings would be in the same position, provided the dwellings remained existing dwellings.  Mr & Ms Schneider would potentially gain a privilege or benefit if their dwelling is characterised as an existing dwelling at the date of any future application.  Ms Sedman’s position would not change unless she could establish that her building is an existing dwelling at the date of any future application.
151	If the application to disregard non-compliance is refused, Synergy Wind could lose the benefit of the potential right or privilege to have its permit application determined on its merits.  I am not convinced this is a right or privilege.  Synergy Wind does not lose any ability to seek and obtain permission.  That ability is not a right or privilege.  The ultimate decision on the merits was and remain dependent on the state of the law when the final decision on review is made.
152	The factor is neutral in relation to disregarding non-compliance.
Importance of the consent requirement
153	This factor encourages consideration of the importance of the requirement that has not been complied with (ie the consent requirement) in the overall legal framework and established practices about disregarding compliance with it.
154	It need hardly be said that the consent requirement is of very significant importance under the Scheme and to the overall regulatory requirement for a wind energy facility.  Its purpose is to provide an owner of an existing dwelling that is within one kilometre of a proposed turbine with a veto right over the location of that turbine.
155	The parties were unable to identify any application to disregard compliance with the consent requirement in a previous case.  There is no established practice.
156	I have already characterised the compliance requirement as a substantive mandatory requirement that determines whether a proposed turbine could be developed and whether a permit to use or develop a wind energy facility can be granted.
157	I would be cautious in disregarding any requirement but I would be very cautious in disregarding a substantive mandatory requirement.  I am not aware of the Tribunal ever disregarding a requirement under a planning enactment that had a similar effect of disregarding a prohibition on the use or development of land.
158	I acknowledge Synergy Wind’s application to mitigate the effect of disregarding compliance by also applying to amend the permit application to cure the non-compliance by removing or relocating any offending turbines.  However, there are complexities with its application to amend the permit application that I will refer to next in these reasons.
159	This factor does not favour disregarding non-compliance.
Reliance on amendment of the permit application
160	Synergy Wind appears to accept that its application that non-compliance with the consent requirement be disregarded has little prospect for success without steps being taken to mitigate the prejudice to the owner of the three existing dwellings.
161	Synergy Wind’s first suggestion was to accept a condition, if a permit were to be ultimately granted following a full merits hearing, that required turbine 27 to be relocated so that it was more than one kilometre from the dwelling at 90 Dawsons Road.
162	This suggestion has no merit.  I am unable to impose such a condition at a preliminary hearing.  It could only be imposed by the Tribunal constituted to determine the merits of the permit application.  It is vague and would not assist with proper assessment in the merits hearing.
163	Synergy Wind’s ultimate application was to apply under clause 64 of schedule 1 of the VCAT Act to amend the permit application.  It initially sought an amendment to relocate turbine 27 about ‘5 to 10 metres’ to the north so that it was more than one kilometre from the dwelling at 90 Dawsons Road.  Later in the hearing, it stated it would not oppose the amendment extending as far as deleting proposed turbines 27, 32 & 33 if I considered that necessary to support an order to disregard compliance with the consent requirement.
164	At the hearing I pressed Synergy Wind to provide more detail on the nature and form of the amendment it sought.  Synergy Wind submits it would be sufficient if the amendment contained relatively few words to the effect that the specified turbines are removed from the permit application.
165	I do not support the making of such an amendment.  It is an amendment made ‘on the run’.  There was no form of the amendment in Synergy Wind’s pre-filed submissions.  The other parties did not have a proper opportunity to make submissions about it at the hearing given its rudimentary form.  I am unsure of the consequences and impact on the balance of the proposal and its proper assessment.
166	Importantly, the Tribunal requires a permit applicant that proposes to amend a permit after an objector lodges an application to review a decision to grant a permit to follow the procedures set out in the relevant practice note.  Synergy Wind complied with none of the practice note requirements and made no application for relief from any of its requirements.  Absent detailed requirements for Synergy Wind to prepare amended plans and supporting material for a future merits hearing under a specified timetable, the amendment would cause uncertainty for such a hearing.
167	This factor does not favour disregarding non-compliance.
Fairness and equity
168	It follows from my assessment of the above factors that, on balance, it would not be fair or equitable to disregard non-compliance with the consent requirement.
169	The predicament of non-compliance arises from Synergy Wind’s conduct that is more than mere inadvertence and its grounds are insufficient for disregarding complying with a requirement that is mandatory and, if not complied with, results in prohibition of the use or development.
Conclusion
170	For the above reasons, I will declare the consent requirement has not been complied with and I will refuse the applications to disregard non-compliance and to amend the permit application.
171	The permit application is unable to proceed to a merits hearing because a permit cannot be granted under clause 52.32-2.  I will therefore set aside the Minister’s decision and no permit must be granted.

Geoffrey Code
Senior Member			

Appendix A
Applicants

First applicant	Daniel Richard Hopkins	
Second applicants	Jennifer Anne Bland & Others	
Third applicants	Valda Susan Sedman & Others	
Fourth applicants	Maree Avery & Others	
Fifth applicant	Graeme Robert James	
Sixth applicant	Andrew Lester	
Seventh applicants	Neil Percival Chandler & Others	
Eighth applicants	Robert John Davies & Others	
Ninth applicant	Neil Roland Griffin	
Tenth applicants	Robert Douglas Wilson & Others	
Eleventh applicants	Sarah Ann Gregory & Others	
Twelfth applicants	Larissa Ann Clark & Others	
Thirteenth applicants	Andrew Macmeikan & Others	
Fourteenth applicants	Penny & David Conn	
Fifteenth applicants	Jaqualene Schneider & Others	
Sixteenth applicant	Glen Cameron Moore	
Seventeenth applicants	Sharon Dohnt & Others