VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P716/2021
Permit Application no. PA2000861	
CATCHWORDS	
Section 79 of the Planning and Environment Act 1987; Solar Energy Facilities Design and Development Guideline; Amendment VC161; Renewable Energy Facility; Solar Energy; Flooding; Landscaping; Agricultural land. 	

APPLICANT	Green Gold Energy Pty Ltd	
Responsible authority	Minister for Planning	
Referral Authorities	Secretary of Department of Environment, Land, Water & Planning
Goulburn Broken Catchment Management Authority
Goulburn-Murray Water	
RESPONDENTs	Geoff Hicks & Yelena Elliot
Braden Reghenzani & Others	
SUBJECT LAND	Naring Hall Road (Lot 2 on PS613623) NUMURKAH VIC 3636	
HEARING TYPE	Hearing	
DATE OF HEARING	11, 12, 13 & 28 October 2021 and 3 & 4 November 2021	
DATE OF ORDER	11 February 2022	
CITATION	Green Gold Energy Pty Ltd v Minister for Planning [2022] VCAT 118	

Order
Permit granted
1	In application P716/2021 the decision of the responsible authority is set aside.
2	In planning permit application PA2000861 a permit is granted and directed to be issued for the land at Naring Hall Road (Lot 2 on PS613623) NUMURKAH in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	Use and development of the land for a renewable energy facility (solar farm).
Claire Bennett
Presiding Member	Frank Dawson
Member			

Appearances
For Green Gold Energy Pty Ltd	John Cicero and Edward Mahony solicitors of Best Hooper assisted by Gary Steigenberger, Linfeng Deng and Darren Spriggs.
They relied on the expert evidence of:
•	John Glossop, town planner of Glossop Town Planning
•	Daryl Poole, agricultural scientist of RM Consulting Group
•	Mark Jempson, hydrologist of Venant Solutions	
For Minister for Planning 	Matthew Beazley, special counsel of Russell Kennedy.
They relied on the expert evidence of:
•	David Merrett, town planner of Spectrum Planning Solutions
•	Anthony Pitt, agricultural scientist of Ag-Challenge Consulting	
For Secretary of Department of Environment, Land, Water & Planning	Matthew Townsend of counsel instructed by Andrew Sherman, solicitor of Russell Kennedy.
They relied on the expert evidence of:
•	Dave Appels, economist of Frontier Economics	
For Goulburn Broken Catchment Management Authority	No appearance	
For Goulburn-Murray Water	No appearance	
For Geoff Hicks & Yelena Elliot	Geoff Hicks & Yelena Elliot 	
For Braden Reghenzani & Others	Braden Reghemzani 	
Information
Description of proposal	Use and development of the land for a renewable energy facility (solar energy facility). Approximately 13,680 photovoltaic panels mounted on single axis tracking arrays are proposed. It is forecast that the facility will have a capacity of 5 MW.  	
Nature of proceeding	Application under section 79 of the Planning and Environment Act 1987 – to review the failure to grant a permit within the prescribed time.	
Planning scheme	Moira Planning Scheme	
Zone and overlays	Farming Zone (FZ)
Floodway Overlay (FO) 
Specific Controls Overlay (SCO)	
Permit requirements	Clause 35.07-1: A permit is required to use the land in the Farming Zone for a Renewable Energy Facility. The use must meet the requirements of clause 53.13.
Clause 35.07-4:  A permit is required to construct a building or works associated with a use in Section 2 of clause 35.07-1.  
Clause 44.03-2 (RFO): A permit is required for buildings and works (including a fence).
Clause 72.04: A permit is required for earthworks on land affected by the Incorporated Document ‘Earthworks Controls in the Shire of Campaspe, City of Greater Shepparton and Moira Shire – August 2015’.	
		
Land description	The site is located approximately 5 kilometres north east of the Numurkah township at 584 Hendys Road, Numurkah. It is known as Lot 2 on Plan of Subdivision 613623. The site is irregular in shape, with a total area of approximately 21.68 hectares in area. The site fronts Naring Hall Road for about 450 metres along its southern boundary, with a depth of 414 metres along its western boundary and 554 metres along its eastern boundary.
The site was previously part of a dairy farm which included the parcel of the land to the east, which is known as Lot 1 on PS613623U (certificate of title volume 11115 folio 624).
The site is located in the Farming Zone and has been more recently used for winter fodder cropping and beef cattle grazing. The site has previously been used for agricultural purposes including periodic dryland grazing providing feed for nearby dairying operations. The site does not contain any existing dwellings or farm buildings. The site is mostly cleared of vegetation; however, it contains scattered trees and remnant vegetation. Vegetation is generally concentrated along the northern and southern property boundary with two clusters of vegetation in the middle of the site.
The site has been laser graded, with a fall from west to east for flood irrigation.	
Tribunal inspection (unaccompanied)	17 November 2021   	

Reasons
Procedural issues 
Hearing 
1	This matter commenced hearing on 11, 12 and 13 October 2021 but did not finish and so the hearing was continued on 28 October and 3 & 4 November 2021.  
Amended permit application
2	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application was amended as per the Tribunal orders dated 13 October 2021.
Confined matters
3	We note that, in the orders dated 6 August 2021, arising from the compulsory conference conducted on 23 July 2021 by Member Hadjigeorgiou, the parties to this proceeding agreed that the issues in relation to traffic and noise were not issues which are to be contested by any party at the hearing of this proceeding.
4	This was noted by the Tribunal at the beginning of the hearing and no parties raised issues in relation to traffic and noise.
What is this proceeding about?
5	This is an application brought by Green Gold Energy Pty Ltd (Green Gold Energy) under section 79 of the Planning and Environment Act 1987 (Act) to review the Minister for Planning’s (Minister’s) failure to grant a permit within the prescribed time for a Renewable Energy Facility (Solar Energy Facility) at Naring Hall Road (Lot 2 on PS613623) (the Land), Numurkah.

Figure 1	Site location
6	The proposed solar energy facility is on a site of approximately 21 hectares, with a capacity to produce 5 MW of electricity. The infrastructure consists of: 
o	Solar Arrays: Approximately 13,680 photovoltaic panels mounted on single axis tracking arrays.  
•	The panels will be arranged in 120 individual rows. 
•	The installed banks will have a maximum height of 3.993 m when the panels are at their steepest 60° incline, reducing to 2.079 m when the panels are horizontal. 
•	The panels will tilt to follow the sun’s trajectory, with the tracking angle ranging from +60° to -60°.
o	Electrical Infrastructure: A medium voltage power station invertor is sited on internal access tracks between the panel arrays within the centre of the site. 
•	The invertor station measures 2.5 m wide, 2.9 m high and 12.2 m deep. 
•	A high voltage switchboard enclosure will be located towards the southern boundary measuring 4.1 m wide, 2.9 m high and 2.7 m deep.
o	Grid Connection: Power is to be exported to the electricity network via an overhead powerline connection to the existing 22 kV powerline within the Naring Hall Road reserve.
o	Site Access and Internal Tracks: Two new access points are proposed on Naring Hall Road (along the southern property boundary).
•	Internal access tracks are generally 4 m wide gravel roads.
o	Native Vegetation Removal: There is no native vegetation removal proposed.
o	Landscaping: Boundary landscaping is proposed to obscure the facility along the southern, western, and eastern boundaries. 
•	A 3 m buffer for landscaping has been provided adjacent to the chainmesh fence. 
•	The proposed planting has a mature size of 1-5 m. 
•	The landscaping will screen the appearance of the solar arrays and the proposed fencing, reaching full maturity within 10 years.
o	Security Features: The facility has a 1.8 m high perimeter chain link security fencing and associated gates with a maximum height of up to 2.235 m high.
Positions of the parties
Minister for Planning
7	Whilst this is an application to review the Minister for Planning’s failure to grant a permit within the prescribed time, the Minister has since determined that if he had been in a position to decide on the Application, he would not support the Application on the following grounds:
Ground 1
1)	The proposed land use change will negatively impact the Goulburn Murray Irrigation District (GMID), being a declared irrigation district under Part 6A of the Water Act 1989, and is not consistent with the following provisions of the Moira Planning Scheme (Planning Scheme):
a) 	Key strategies outlined in clause 14.02-3S to:
i) 	Protect agricultural land serviced by irrigation infrastructure to ensure the future viability of an irrigation district.
ii) 	Ensure non-agricultural land use does not undermine the integrity of irrigation infrastructure and complements existing and future agricultural production.
iii) 	Ensure land use change within an irrigation district does not negate the potential opportunities for a rural water corporation to make adjustments to the footprint of an irrigation district that are identified under an approved plan or strategy.
b) 	The objective of clause 14.01-1S ‘to protect the state’s agricultural base by preserving productive farmland.’
c) 	Strategies contained in clause 14.01-2S, including to: ‘Support agricultural investment through the protection and enhancement of appropriate infrastructure.’
d) 	The strategy contained in clause 14.01-2R to: ‘Take advantage of locational opportunities, including separation from sensitive land uses and access to transport, power, water and communications infrastructure.’
e) 	The purpose of clause 35.07: ‘To encourage use and development of land based on comprehensive and sustainable land management practices and infrastructure provision.’
This is because the proposal will:
a) 	not contribute to the sustainable management of the GMID
b) 	unreasonably undermine the integrity of the irrigation infrastructure of channel 6/6 and the broader irrigation district
c) 	not complement existing and future agricultural production within the broader GMID and in the vicinity of the strategically significant channel 6/6 through the introduction of a long term non-agricultural use on the land
d) 	unreasonably impact on the potential for future investment in irrigation infrastructure which will in turn impact on the appropriate minimisation of water loss, and improved irrigation service efficiency to the farm gate and overall agricultural production.
Ground 2
2) 	The proposal is not consistent with the purpose of clause 53.13 of the Planning Scheme to facilitate the establishment and expansion of renewable energy facilities, in appropriate locations, with minimal impact on the amenity of the area and the following decision guidelines contained in clause 53.13:
a)	 Consideration of ‘[t]he impact of the proposal on strategically important agricultural land, particularly within irrigation districts.’
b) 	Consideration of the ‘Solar Energy Facilities Design and Development Guideline 2019’ (Guideline) regarding the development of solar farms within irrigation districts.
8	The Minister submits that the planning policy framework is clear and contains strong objectives to ensure that solar energy facilities do not undermine the integrity of the irrigation network within a declared irrigation district. This policy framework links to existing policy and legislation which is to be satisfied for any new solar energy facility. It is considered that the proposed solar energy facility may lead to the loss of productive, state significant agricultural land.
9	In his submission, Mr Beazley submits that there is a conflict between clause 14 to protect agriculture and clause 19 “promoting the facilitation of renewable energy facilities in appropriate locations”. He submits:
The Site is simply not in an appropriate location.
10	It is relevant to point out that there are a number of issues raised by the proposal that are not contested by the Minister. The issues accepted by the Minister as not in contention are recorded at Appendix B. 
External referrals
Goulburn-Murray Water
11	Goulburn-Murray Water (GMW) is a determining referral authority, but only for works triggered under clause 5 to the Incorporated Document at clause 81 ‘Earthworks Controls in the Shire of Campaspe, City of Greater Shepparton and Moira Shire – August 2015’ (clause 66.04 of the Scheme).
12	GMW provided feedback to the applicant with concerns about the proposal although its referral arose from earth works under the Incorporated Document and it had no objection to the permit being granted subject to two conditions.
1. 	All construction and ongoing activities must be in accordance with sediment control principles outlined in ‘Construction Techniques for Sediment Pollution Control’ (EPA, 1991).
2. 	All solar panels must be setback at least five metres from any easement, freehold, or reserve boundary (including the road reserve) containing any Goulburn-Murray Water infrastructure.
13	GMW is also considered an “internal referral authority” to DELWP in relation to the Solar Energy Facilities Design and Development Guideline (Guideline). We discuss this in more detail at paragraph 24 below.
Department of Environment, Land, Water and Planning
14	Pursuant to clause 66.02-12 of the Scheme, the Secretary to the Department of Environment, Land, Water and Planning (DELWP) administering the Water Act 1989 (Secretary) is a recommending referral authority as the proposal is located within an irrigation district declared under Part 6A of the Water Act 1989.
15	The Officer Assessment Report, prepared by DELWP for the Minister as the Responsible Authority, recommended that a permit be granted subject to suitable conditions.
16	The Secretary objected to the grant of the permit on the following basis:
The proposed site is serviced by a critical backbone component of the irrigation network (GMW backbone channel number 6/6), which has been recently modernised through significant public investment and is integral to GMW’s future asset management planning for the viability of the GMID. There are no opportunities to rationalise this irrigation infrastructure and, if this were to occur, 18 downstream irrigators who depend on the backbone channel would not maintain access to water services.
Withdrawal of serviced irrigated agricultural land on this site in the GMID would not support GMW Transformation and the Victorian Government’s policy commitments and planning controls for the protection of Victorian irrigation districts and communities consistent with clause 14.02-3S of the VPPs.
The proposed land use change is not consistent with the policy commitments and key strategies outlined in clause 14.02-3S of the VPPs to ‘protect agricultural land serviced by irrigation infrastructure to ensure the viability of an irrigation district; and ‘ensure non-agricultural land use does not undermine the integrity of irrigation infrastructure and complements existing and future agricultural production’.
17	DELWP submits that this application provides an unacceptable outcome in the context of the policy and statutory settings in the Scheme that seek to protect the irrigation network within declared irrigation districts. The DELWP submission is concerned with maintaining the effectiveness of the irrigation delivery infrastructure in the Goulburn-Murray Irrigation District (GMID), particularly the ‘backbone’ channels that are the ‘trunk’ of the irrigation system. In the case of the subject land, the backbone supply channel is 6/6, located approximately 500 metres (m) west of the subject land and connected via a pipeline.
18	In his submission on behalf of DELWP, Mr Townsend submits at paragraph 175:
Channel 6/6 has been modernised and is recognised as an important component of the future of the GMID as it has 18 downstream users, including the Numurkah township residents who are reliant on the channel. It is, therefore, important to optimise its use given its critical functions within the broader GMID.
19	At paragraphs 179-180, Mr Townsend continues:
Optimised use of infrastructure is not essential, but is nonetheless a key element of any management of an asset. The more optimally backbone channels are used, the more efficiently (economically and operationally) the system operates. This efficiency is integral to the long-term viability of the GMID as a whole.
The removal of irrigable land from backbone channels will have operational impacts relating to the optimisation of water delivery to land connected to the network. In particular, it will result in a distortion between the channel design and actual water needs which in turn impacts on the capacity sharing system of Delivery Share and pricing.
20	Mr Townsend also raises the issue of precedent, submitting at paragraph 181:
The removal of part of this production base to non-agricultural uses, no matter how insignificant that removal may seem, is an ongoing threat to the long-term viability of the district.
21	Taken together, submissions from the Minister and DELWP have the singular concern to maintain the integrity of irrigation infrastructure that benefits from modernisation expenditure.
Goulburn Broken Catchment Management Authority
22	The Goulburn Broken Catchment Management Authority (GBCMA) is a recommending referral authority as the proposal is partly within the Floodway Overlay and includes works triggered under clause 5 to the Incorporated Document at clause 81 ‘Earthworks Controls in the Shire of Campaspe, City of Greater Shepparton and Moira Shire – August 2015’ (clause 66.04 of the Scheme).
23	GBCMA had no objection to the grant of a permit subject to the following condition:
The finished floor level of the proposed housings of electrical equipment including switchboards, inverters, and the like, must be constructed at least 300 millimetres above the 1% AEP flood level of 108.41 metres AHD, i.e. 108.71 metres AHD.
Internal referrals
Goulburn-Murray Water
24	GMW is also considered by DELWP to be an ‘internal referral authority’ for solar energy facility proposals in irrigated districts. 
25	The Guideline requires the proponent to engage the relevant rural water corporation and DELWP early in the site selection to determine the appropriateness of the location. The Guideline specifies GMW as the relevant rural water corporation for the Goulburn Murray Irrigation District. 
26	GMW provided early advice to the proponent and DELWP in the form of Pre-Permit Preliminary Assessment – Solar Farms in Irrigation Districts (Pre-Permit Assessment) as follows:
i	Pre-Permit Preliminary Assessment dated 26 February 2020
ii	Pre-Permit Preliminary Assessment dated 16 March 2020
27	The original permit application was lodged in April 2020.
28	Further to this, GMW then provided an ‘internal reference document’ to DELWP titled RWC Advice to DELWP Water and Catchments Group in Relation to Application for a Planning Permit for a Solar Energy Facility (RWC advice to DELWP) dated 22 May 2020. We understand that the applicant was not aware of this document until it was tabled during the hearing
29	GMW’s relevant initial advice to Green Gold Energy dated 26 February 2020 and 16 March 2020 was that:
•	GMW’s investment in modernised irrigation infrastructure for the ongoing viability of the irrigation district will continue to be realised; and 
•	they did not consider the change in land use at this location would fragment the irrigation network in anyway which would close off any future opportunities to make irrigation footprint adjustments.
30	However, GMW’s final advice to DELWP dated 22 May 2020 (which was not provided to the proponent until during the hearing) was that:
The application should not be supported on the basis that the property is serviced by modernised irrigation infrastructure and any opportunities to rationalise GMW assets have been realised under NVIRP. The proposal to change the use of the land from agricultural to a solar farm for the next 30 years provides no further opportunity to optimise the irrigation network or the viability of the irrigation district in line with our asset management strategy.
This application does not align with the Victorian Government policies and planning amendments to deliver the policy objectives and strategies to manage and protect irrigated areas under VPP Clause 14.02-3S for the Protection of Declared Irrigation as follows:
•	The change of land use does not provide GMW with any opportunities to enable or facilitate an infrastructure asset response to improve the viability of the irrigation area and address the agricultural needs of the community.
•	The proposal to transform agricultural land serviced by modernised irrigation infrastructure to a solar facility, fails to protect agricultural land and ensure the viability of the irrigation district.
•	The proposed solar facility contributes to the cumulative effect of removal of land from agricultural use and contributes to the diminished agricultural productivity of the land and undermines the value of public investment in the irrigation network.
•	Based on the long term occupancy of the solar farm any opportunities for GMW to facilitate or implement irrigation footprint adjustments identified in relation to the land under any future proposed plan or strategy may be minimalised.
•	Works were carried out to minimise water loss and improve irrigation service efficiency under NVIRP. The proposal negates this investment to the extent that it takes serviced land out of production.
We do not support this solar facility because it is in a key location in the irrigation district on a backbone channel. The precedent created by approval of this project adds to cumulative threat to the loss of further productive agricultural land. This effect ultimately affects the viability of the irrigation system and undermines the Government’s policy drivers which seek to protect high value irrigated agriculture.
31	DELWP submits that this change in position is due to the changes heralded by VC161, and the changes should be viewed as a “progression”.
32	All the documents contain six questions, and a comment is provided in response to each question. The parties agreed that all six questions are similar and that, though Questions 4, 5 and 6 have additional wording in the latest version, the questions are substantially the same and are based on the requirements of the Guideline.
33	Some of the comments provided in response to the questions are the same in each document. The comments associated with Questions 2, 3 and 4 are substantially the same. However, the comments provided in response to Questions 1, 5 and 6 are different in each version. A summary of these differences is provided below. 
Question 1
34	Question 1 states:
1. 	a) 	Are there irrigators downstream of the proposed site 
(if yes, how many)?
b) 	Do these downstream irrigators depend on irrigation assets (including channels or infrastructure) on the proposed site?
c) 	Will these downstream irrigators be impacted if the irrigation assets on the site were impacted (i.e. removed)?
d) 	What will this impact be?
35	In the advice dated 26 February 2020, the comment provided in response to Question 1 was:
…There are many downstream users off this channel, including the Numurkah Town Offtake downstream. However, access to water from outlet MV6071 is via a private pipeline within a private easement through the neighbouring property being Lot 2 on PS603624. As the pipeline only services Sortino’s properties (Lot 1 & 2 on PS613623), there are no other downstream customers…
(Tribunal emphasis)
36	In the advice dated 16 March 2020 and 22 May 2020, the comment provided in response to Question 1 was:
…There are 18 downstream customers (serviced from 32 outlets) on the channel, including the Numurkah Town Offtake…18 downstream irrigators, including the Numurkah Township residents depend on the channel for supply of irrigation and town water…Downstream customers depend on the backbone channel and no opportunity exists for rationalisation of the infrastructure at this site…Downstream customers would not maintain access to water services if the channel infrastructure were rationalised…
(Tribunal emphasis)
Question 5
37	Question 5 states:
5.	Whether or not the overall change in land use at the site aligns with a rural water corporation’s asset management planning strategy for the viability of the irrigation district.
38	In the advice dated 26 February 2020 and 16 March 2020, the comment provided in response to Question 5 was:
It is understood that only Lot 2 on PS613623 is part of the solar farm proposal and the landowner intends to retain Lot 1 on PS613623 and remain a serviced property for irrigation purposes. GMW has been advised the landowner intends to transfer all delivery shares to Lot 1. By limiting the solar farm development to Lot 2 and retaining the balance of the land for irrigation, the service point in question will continue to be utilised and GMW’s investment in modernised irrigation infrastructure for the ongoing viability of the irrigation district will continue to the realised. However, for this to occur, Lot 1 requires physical and legal access to water via Lot 2. Should Lot 2 be transferred to new ownership, an easement in favour of Lot 1 would need to be created.
(Tribunal emphasis)
39	In the advice dated 22 May 2020, the comment provided in response to Question 1 was:
Works were carried out in accordance with the relevant NVIRP agreement to modernise and improve the irrigation system servicing the property. Accordingly the proposal to utilise the land for the purposes of a solar farm does not align with GMW’s asset management planning strategy for the viability of the irrigation district as envisaged by NVIRP. The solar farm proposal is for Lot 2 on PS613623. The proponent advised GMW that the landowner intends to transfer all delivery shares to Lot 1 PS613623 and retain this portion of the site and the meter outlet for irrigation purposes. For this to occur, Lot 1 requires physical and legal access to water via Lot 2. Should Lot 2 be transferred to new ownership, an easement in favour of Lot 1 would need to be created to continue servicing the property and be a viable part of the irrigation district. The application outlines that the transfer of Lot 2 to Green Gold includes the granting of an easement for water supply in favour of Lot 1.
(Tribunal emphasis)
Question 6
40	Question 6 states:
6.	Whether the change in land use closes off any future opportunities for a rural water corporation to make irrigation footprint adjustments identified under a plan or strategy.
41	In the advice dated 26 February 2020 and 16 March 2020, the comment provided in response to Question 5 was:
The proposed solar farm is surrounded by irrigated land. It is not considered the change in land use at this location would fragment the irrigation network in anyway which would close off any future opportunities to make irrigation footprint adjustments. However, should considerations outlined above within question 5 not be implemented, a parcel of land could be created (Lot 1) which has no legal access to water supply and effectively alienated from the irrigation network.
(Tribunal emphasis)
42	In the advice dated 22 May 2020, the comment provided in response to Question 1 was:
The occupation of the land for a solar farm over the next 30 years does not provide GMW with any opportunities to enable or facilitate irrigation footprint adjustments in relation to the land which may be identified under any future plan or strategy to optimise the irrigation district. Furthermore, should considerations outlined above (criteria 5) not be implemented in relation to Lot 1, an additional parcel of land could become alienated from the irrigation footprint.
(Tribunal emphasis)
Final Comment
43	Further, the final document provides an additional section which was not provided in the previous versions, as follows: 
Final rural water corporation assessment of whether the application should be supported, based on the pre-application preliminary assessment provided, any further information provided above and the strategic irrigation infrastructure policy considerations
Comment:
The application should not be supported on the basis that the property is serviced by modernised irrigation infrastructure and any opportunities to rationalise GMW assets have been realised under NVIRP. The proposal to change the use of the land from agricultural to a solar farm for the next 30 years provides no further opportunity to optimise the irrigation network or the viability of the irrigation district in line with our asset management strategy.
This application does not align with the Victorian Government policies and planning amendments to deliver the policy objectives and strategies to manage and protect irrigated areas under VPP Clause 14.02-3S for the Protection of Declared Irrigation as follows:
•	The change of land use does not provide GMW with any opportunities to enable or facilitate an infrastructure asset response to improve the viability of the irrigation area and address the agricultural needs of the community.
•	The proposal to transform agricultural land serviced by modernised irrigation infrastructure to a solar facility, fails to protect agricultural land and ensure the viability of the irrigation district.
•	The proposed solar facility contributes to the cumulative effect of removal of land from agricultural use and contributes to the diminished agricultural productivity of the land and undermines the value of public investment in the irrigation network.
•	Based on the long term occupancy of the solar farm any opportunities for GMW to facilitate or implement irrigation footprint adjustments identified in relation to the land under any future proposed plan or strategy may be minimalised.
•	Works were carried out to minimise water loss and improve irrigation service efficiency under NVIRP. The proposal negates this investment to the extent that it takes serviced land out of production.
We do not support this solar facility because it is in a key location in the irrigation district on a backbone channel. The precedent created by approval of this project adds to cumulative threat to the loss of further productive agricultural land. This effect ultimately affects the viability of the irrigation system and undermines the Government’s policy drivers which seek to protect high value irrigated agriculture.
44	Our findings in relation to GMW’s preliminary advice and internal referral advice can be found later in our reasons, at paragraph 70.
Objections
45	The Officer Assessment Report noted that nine objections were received.
46	The issues raised in the objections are set out below:
•	Devaluation of nearby residential properties
•	Loss of productive agricultural land
•	Loss of views enjoyed from neighbouring properties
•	Tree removal
•	Heat and glare
•	Smell
•	Visual impacts
•	Drainage, stormwater, and runoff impacts including debris getting caught in the proposed fencing
•	Noise
•	Construction traffic impacts on the unsealed Naring Hall Road, which locals rely on and which already has problems with potholes
•	Proximity to residential properties
•	Plentiful other locations that are better suited to renewable energy locations
•	Financial benefits solely to applicant with no benefits to local community or neighbours/profits will go offshore
•	Waste of irrigation facilities
•	Glint and glare impacts on neighbouring properties
•	Bushfire risk
•	Lifespan of the site and end of life plan
47	These were also matters that were raised by the neighbours Geoff Hicks & Yelena Elliot at 21 O’Kanes Road Numurkah 3636, and Braden Reghenzani & Others at 354 Allerts Road Katunga 3640, who were respondents to this proceeding. 
48	In addition, Braden and Erin Reghenzani raise concerns about the impacts to the views of their “dream home on an acreage where the views are those of the ‘dream country lifestyle’”. 
49	Tahlia Fry & Jack Greenway of 592 Naring Hall Road Numurkah, neighbours immediately to the west of the site, also make references to their “dream lifestyle farming property” and their concerns that this solar farm will have a detrimental impact on the value of their home, with their main statement of grounds being depreciation of house and land value.
Other Submissions to the Minister
50	The Minister also received submissions from Moira Shire Council (Council), the Country Fire Authority (CFA) and Goulburn Valley Water (GVW).
51	Council provided responses on 1 June 2020 and 5 March 2021 to the application and confirmed that it has no objection to the proposal subject to conditions and a note as follows:
•	An agreement to ensure the care and maintenance of the council’s road network
•	The standard and location of vehicle crossing points
•	The endorsement of a construction site management plan (including various requirements)
•	Damage to council assets being repaired at the cost of the applicant
•	Vehicle access and egress being in a forward direction
•	Loading and unloading of vehicles being undertaken within the curtilage of the site
•	The standard and timing of accessways and manoeuvring areas being constructed
•	Contaminants not being permitted to enter the stormwater drainage system
•	No discharge of concentrated drainage into the adjoining road drains or culverts
•	There being no cut off of natural drainage from adjacent properties as a result of the works.
52	The note is to remind the applicant that, prior to works commencing on public land or roads, they must obtain consent to work within a road reserve.
53	The CFA provided a response on 8 February 2021 and did not offer a view on the application however it recommended conditions to be included if a permit was to be granted relating to:
•	A risk management plan
•	Access
•	Fuel/vegetation management
•	Siting, operation and management
•	Emergency management plan and the provision of emergency Information
54	GVW provided a response on 25 January 2021 and did not object to the grant of a permit.
Applicant
55	The applicant submits that the proposed solar energy facility has strategic planning policy support at both a State and Local level and that:
a	it promotes the provision of solar energy facilities in line with the Government’s commitment to renewable energy targets within an established energy network, identified on the Australian Energy Market Operator (AEMO) Energy Grid Map; 
b	it is consistent with the strategic intent and purpose of the Farming Zone (FZ);
c	it meets the objectives and standards of clause 19.01-2S: Renewable energy and the decision guidelines set out at clause 53.13 (Renewable Energy Facility – other than a wind energy facility) of the Scheme;
d	both of the lots in the proposed subdivision are capable of treating and retaining all wastewater in accordance with SEPP Waters as required by the TZ; and
e	the proposal represents, on balance, a planning outcome that is acceptable in the interests of achieving a net community benefit.
56	In addition to the applicant’s submissions concerning the attributes of the subject site for a solar energy facility, the applicant maintains there are ‘practical limitations’ on the Minister and DELWP to reject the proposed solar energy facility at the proposed location. At paragraph 21 of his submission, Mr Cicero submits;
..the opportunity to curb, or even discourage, the use of land within the irrigation district for non-irrigation uses was lost when the government deregulated the water industry so that water entitlements were no longer bundled with landholdings.
57	To illustrate his point, Mr Cicero submits at paragraph 23 of his submission:
There is a practical disconnect between the grounds relied upon by the Minister of Planning and the on-the-ground-realities which exist, that being:
• 	The subject site is not currently used for an agricultural purpose;
• 	Delivery shares are not connected to the subject site.
(In accordance with agreement the channel through neighbouring property (lot 2 on PS603624) was decommissioned and private pipeline installed within a private easement to supply water to the land in question (lot 2 on PS613623) and also lot 1 on PS613623.)
• 	The delivery shares allocated to Lot 1 remain unaffected by the proposal. This means:
–	Lot 1 can still use its delivery shares to gain access to the irrigation infrastructure. The physical layout of the subject site enables this as the drainage network along its western and northern boundaries remains.
58	In the context of the above statement concerning Lot 1 to the east of the subject land, Mr Cicero also notes:
an easement is in the process of being registered on the land to reflect this drainage right and enable this lot owner to utilize its water entitlement and the Applicant for Review would accept an appropriate condition in relation to this.
What are the key issues?
59	Central to the concerns raised is the alleged inconsistency between the proposed solar energy facility and the intention of the Scheme to protect agricultural land, especially where they are proposed in the GMID. 
60	Having considered the submissions and the evidence presented to us, and having inspected the review site and the surrounding area more generally, we consider that the primary issues we must decide in this matter can be categorised as follows:  
•	Has there been a change in planning policy regarding Renewable Energy Facilities with Amendment VC161?
•	Is the proposal acceptable having regard to the zoning of the land and the applicable policy framework, including the planning policy provisions for the protection of agricultural land and the strategic support for renewable energy production?
•	Is the proposal acceptable having regard to the site’s physical context including flood risk, drainage and bushfire management impacts?
•	Is the proposal’s visual amenity impact acceptable?
61	We consider these issues below.
Amendment VC161
62	Amendment VC161 amended the Victorian Planning Provisions (VPP’s) and all planning schemes on 17 September 2019 to introduce new requirements for renewable energy facilities (other than a wind energy facility) and a State planning policy for the protection of declared irrigation districts. 
63	Drawing on the Explanatory Report for VC161, the following table summarises the changes to the planning scheme provisions.
Clause	Topic	Provision	
14.02-3S 	Water	State planning policy for the protection of irrigation districts declared under Part 6A of the Water Act 1989.	
19.01-2S	Renewable energy	Specifies the Solar Energy Facilities Design and Development Guideline (DELWP, August 2019) as a policy document.	
53.13	Renewable energy facility (other than a wind energy facility)	Renewable Energy Facility (other than a Wind Energy Facility). General requirements and decision guidelines. Includes transitional provisions for clauses 19.01-2S and 53.13 applicable to applications to use or develop land for a renewable energy facility (other than a wind energy facility) lodged before the approval date of Amendment VC161.	
62.01	Uses not requiring a permit	Clarifies that the buildings and works exemption introduced in Amendment VC157 for power lines and electrical sub-stations also extends to the use of land. 	
66.02	Use and development referrals	Introduces a referral requirement for applications for renewable energy facilities within irrigation districts declared under Part 6A of the Water Act 1989. 	
72.01	Responsible authority for this planning scheme	Specifies the Minister for Planning as the responsible authority in relation to the use and development of land for a: 
  renewable energy facility with an installed capacity of 1 megawatt or greater 
  utility installation used to store, transmit or distribute electricity generated by a renewable energy facility with an installed capacity of 1 megawatt or greater 
except for current applications or permits issued. 	
73.03	Land use terms	Introduces the land use term ‘solar energy facility’ (nested term under ‘renewable energy facility’) and a corresponding definition.	
73.04	Nesting diagrams	To reflect the amendment to clause 73.03.	
64	According to the Explanatory statement for VC161, the amendment implements a commitment by the Victorian Government to support renewable energy developments “by introducing a consistent and transparent planning framework for renewable energy facilities across Victoria”.
65	To our observation, three key aspects VC161 identified in the Explanatory Report are:
i	The introduction of the Guideline “as a decision guideline for planning applications for renewable energy facilities (other than wind energy facilities)”.
ii	Specifying the Minister for Planning as the responsible authority for renewable energy facilities and associated utility infrastructure.
iii	New State policy provisions for irrigation districts, whereby:
…the Secretary of the department administering the Water Act 1989 as a recommending referral authority for renewable energy facilities within irrigation districts, to ensure the siting and design of these facilities does not impact on the agricultural use and productivity of declared irrigation areas.
66	The proposal in this proceeding has been brought to the Tribunal pursuant to Section 79 of the Planning and Environment Act 1987, which states:
An applicant for a permit may apply to the Tribunal for review of the failure of the responsible authority to grant the permit within the prescribed time.
67	VC161 is applicable to this application and is assessed accordingly.
68	Within Amendment VC161 we see the introduction of policy for the protection of declared irrigation districts in accordance with clause 14.02-3S and the incorporation of the Guideline with clause 19.01-2S. 
69	The circumstance of this application for a renewable energy facility within an irrigation district calls for an assessment of the proposal against both these sets of the provisions. These provisions are not mutually exclusive because the Guideline does not preclude the consideration of solar energy facilities within irrigation districts. It requires balancing the protection of irrigated agricultural land with the provisions supporting renewable energy proposals.
Tribunal’s findings on GMW’s advice
70	Relevant to the provisions introduced by VC161, specifically the Guideline requirement for applicants to seek advice from DELWP and the relevant rural water authority, are the preliminary advice and internal referral advice of GWM. As flagged earlier, we include below our comments in relation to GMW’s advice. 
71	DELWP submits that the change in position from the Pre-Permit Preliminary Assessments that were provided to the applicant and DELWP on 26 February 2020 and 16 March 2020 and the further advice dated 22 May 2020 (which was only provided to DELWP) is due to the changes heralded by VC161, and the changes should be viewed as a “progression”. Given that this is the first application to have dealt with the changes and whilst they are not the formal expression of DELWP, they can assist in understanding how DELWP reached their position. 
72	To the extent that the first referral didn’t necessarily appreciate the significance of the changes that had been introduced by reference to VC161, DELWP say it is fair that we should give greatest weight to the ultimate version, dated 22 May 2020.  
73	Further, DELWP consider there is no need for the Tribunal to question GMW about the change in position because DELWP is the recommending referral authority and, in this instance, GMW is only an internal referral authority to DELWP. This point was agreed by both The Minister and the applicant.
74	However, the applicant did not agree that greater weight be given to the 22 May 2020 version of the GMW advice. The applicant submits that there has been a fundamental shift in position in the two months from March to May of 2020 and seek that equal weight be given to all three versions. The applicant says the versions from February and March of 2020 are significant because GMW had two chances to say the proposal is in an inappropriate location before the applicant submitted the original permit application. GMW did not take up this opportunity. It wasn’t until after the original permit application was submitted, in April 2020, that the position of GMW changed and was reflected in the advice provided to DELWP in May 2020.
75	We note that, whilst the documents were prepared at different times and in the context of an evolving policy context, they were prepared by the same author.
76	We consider GMW’s initial advice useful because it specifies that;
•	by limiting the solar farm development to Lot 2 and retaining the balance of the land for irrigation, the service point in question will continue to be utilised and GMW’s investment in modernised irrigation infrastructure for the ongoing viability of the irrigation district will continue to be realised; and 
•	it would not close off any future opportunities to make irrigation footprint adjustments.
77	Conversely, the reasons for refusal in the ultimate 22 May 2020 version make only general references to the requirements of the Guideline with no specific reasons given as to how the application would:
•	not align with GMW’s asset management planning strategy for the viability of the irrigation district; or 
•	provide no further opportunity to optimise the irrigation network or the viability of the irrigation district.
78	It is because of the specificity in the initial advice that we consider the initial advice should be given weight. We have some sympathy for the applicant’s contention that GMW had two separate opportunities to advise the applicant that the proposal was in an inappropriate location. 
79	However, we do acknowledge the concern expressed by GMW in their ultimate advice that “the precedent created by approval of this project adds to cumulative threat to the loss of further productive agricultural land” and that “this effect ultimately affects the viability of the irrigation system and undermines the Government’s policy drivers which seek to protect high value irrigated agriculture”. In response to this concern, we say the renewable energy facility application before us in this proceeding needs to be considered on its own unique merits and assessed against the applicable policy framework, including the Guideline.
80	It is for these reasons that, in this case, we regard the specificity of the initial advice from GMW is relevant and should be given weight.
Planning Policy Considerations
81	The Land is located in the FZ of the Moira Planning Scheme (Scheme) and is subject to the Floodway Overlay (FO) and the Specific Controls Overlay (SCO).
82	The proposed subdivision requires planning permission under the FZ and FO.
83	The planning policies that we consider relevant to this proposal are:
•	Clause 14.01-1S ‘Protection of Agricultural Land’
•	Clause 14.02-3S ‘Protection of Declared Irrigation Districts’
•	Clause 19.01-2S ‘Renewable energy’
•	Clause 53.13 ‘Renewable Energy Facility (Other Than Wind Energy Facility)’
•	The Guideline
84	These policies are discussed as they relate to the proposal below.
Overview
85	The Scheme contains policies and controls that deal with solar energy facilities. These may be found in the relevant zone and overlays along with the planning policies in the Scheme and any other relevant provisions.
86	In this case, the land on which a solar energy facility is proposed is in a declared irrigation district. The Scheme requires consideration of a referenced policy document, being the Guideline. The Guideline has been adopted for the purposes of section 60(1A)(g) of the Act and are referenced as a policy document to consider as relevant at clause 19.01-2S Renewable energy and clause 53.13-3 Decision guidelines. We discuss the Guideline below and assess the permit application against the Guideline.
87	The Guideline requires the proponent to engage the relevant rural water corporation and DELWP early in the site selection to determine the appropriateness of the location. The Guideline specifies GMW as the relevant rural water corporation for the Goulburn Murray Irrigation District. 
88	In the context of the location of the proposed solar energy facility in an irrigation district, State policy at clause 14.02-3S  (Protection of declared irrigation districts) is also a key consideration. Our assessment of the permit application proposal is assessed against the objective and strategies of this provision.
89	We understand that climate change and water sales are generating change in the irrigation districts, including the GMID. This change is dynamic, with irrigation water rights moving both ways, in and out of each district. We also understand that the irrigation modernisation program improves water delivery efficiency. In that context, it is sensible for the areas that benefit from renewed infrastructure to be managed in a way that maintains the operational integrity of the system. 
90	We consider the policy statement at clause 14.02-3S and the content of the Guideline as it relates in particular to:
•	Identifying suitable locations (page 10);
•	Avoiding the loss of high-value agricultural land (page 15); and
•	Solar energy facilities in irrigated districts (page 16); 
are helpful in setting out the issues that we need to address to assess the merit of locating a solar energy facility in an irrigation district. 
Overview of Solar Energy Facilities Design and Development Guideline 
91	The Guideline contains advice about suitable locations for solar energy facilities and managing the cumulative effects of solar energy facilities in an area, including an irrigation district. Avoiding the loss of strategically important agricultural land is mentioned at page 15 of the Guideline, with a direct reference to clause 14.02-3S of the planning scheme, introduced by Amendment VC161.
92	The Guideline explains that strategically important land is the product of a combination of features, nominating:
•	high quality soils;
•	good rainfall;
•	access to water;
•	resilience to climate change;
•	infrastructure investment; and
•	integration with industry.
93	Importantly for the matter before the Tribunal, the Guideline advises consideration of;
•	the potential loss of reliable, accessible water (such as irrigated areas) and its impact at a local or regional scale.
94	The Guideline also addresses the issue of the cumulative effect of solar energy facilities in an agricultural area. Cumulative effects can occur where electricity network infrastructure is favourable for connection to solar energy facilities. The Guideline outlines that too many facilities in an area can;
•	reduce the availability and/or productivity of strategic agricultural land, particularly in irrigation districts,
•	result in landscape-scale visual impacts, due to an overconcentration of built form in an area,
•	impact the area’s biodiversity, habitat or wildlife, due to an overconcentration of built form.
95	To reduce the cumulative effect, the Guideline suggests;
•	having a mix of land use activities including solar energy facilities in the area,
•	agrophotovoltaics — the dual use of a site with agriculture,
•	having enough distance between solar energy facilities within an area to minimise or avoid environmental impacts and natural hazard risk exposure.
96	An issue central to our consideration of this proposal concerns the effect of solar energy facilities in irrigated districts, discussed at page 16 of the Guideline. The issue prominent in the submissions in this proceeding and identified in the Guideline is;
•	The potential impacts of withdrawing sites from irrigated activity on future viability planning, where those sites are serviced by modernised irrigation infrastructure.
Clause 14.02-3S
97	Amendment VC161 introduces clause 14.02-3S (Protection of declared irrigation districts), a policy recognising that irrigation districts are a major State asset supporting agriculture in Victoria. 
98	The policy has the single objective: 
To plan and manage for sustainable change within irrigation districts declared under Part 6A of the Water Act 1989.
99	Two key strategies supporting this objective focus on;
•	maintaining the integrity of the water deliver infrastructure, and 
•	ensuring that non-agricultural land use does not inhibit future changes to the footprint of irrigation districts. 
100	In full, the strategies at clause 14.02-3S are to:
Identify and plan for the future needs of communities to adapt and adjust to land use change within an irrigation district. 
Protect agricultural land serviced by irrigation infrastructure to ensure the future viability of an irrigation district. 
Ensure non-agricultural land use does not undermine the integrity of irrigation infrastructure and complements existing and future agricultural production. 
Ensure land use change within an irrigation district does not negate the potential opportunities for a rural water corporation to make adjustments to the footprint of an irrigation district that are identified under an approved plan or strategy. 
Ensure land use change does not limit the ability of future investment in irrigation infrastructure that achieves the intended benefits of minimising water loss, and improved irrigation service efficiency to the farm gate and overall agricultural production.
101	The above strategies contain words such as “adapt”, “adjust”, “integrity”, “viability” and to our reading these words indicate a strategic framework for managing change within irrigation districts that does not compromise irrigation infrastructure and productive capacity.
102	In this proceeding, we have the circumstance of a solar energy facility proposed on land within an area accessible to modernised irrigation infrastructure. The strategies and Guideline introduced by VC161 provide a useful framework for assessing the merit of this proposal for the production of renewal energy in a strategically important location for agriculture. The strategies and Guideline introduced by Amendment VC161 also tell us that the two activities; renewable energy production and irrigated agriculture, need not be mutually exclusive.    
103	Our findings in relation to clause 14.02-3S can be found below at paragraph 109 and our assessment of the proposal against the Guideline can be found at paragraph 156.
Clause 14.01-1S ‘Protection of Agricultural Land’
104	Clause 14.01-1S has the objective:
To protect the State’s agricultural base by preserving productive farmland.
105	The strategic emphasis of clause 14.01-1S is to avoid the loss of productive agricultural land as a result of permanent changes to land use. The strategy identifies dispersal of urban activities into rural areas and incompatible uses such as fragmentation of rural land into small lots and dwellings on isolated small lots as processes that threaten the availability of productive agricultural land.
106	A key consideration relevant to the proposal in this proceeding is:
Compatibility between the proposed use or likely development and the existing use of surrounding land.
107	The relatively small size of the subject land limits the productive capacity of the land, particularly in the context of integration with the operation of a larger farm.  Related to this limitation are the physical constraints of the property due to the proportion of flood prone land and the poor soils associated with the FO area.
108	Taking into consideration the above site limitations and the fact that the construction of a solar farm does not permanently remove the land from future agricultural production, we consider the proposal is acceptable in the context of the objective of clause 14.01-1S to preserve productive farmland.
Clause 14.02-3S ‘Protection of Declared Irrigation Districts’
109	The GMID is a declared irrigation district under Part 6A of the Water Act 1989. Clause 14.02-3S is part of the Planning Policy Framework of the planning scheme and is directed to providing strategies to plan and manage for sustainable change within irrigation districts.
110	The intent of the strategies is to maintain the integrity of the irrigation infrastructure. The threats identified in the strategies refer to;
–	loss of serviced agricultural land, 
–	non-agricultural land use, 
–	land-use change that may negate the potential for adjustments to the irrigation district over time, and
–	land use change that may inhibit future investment in irrigation infrastructure.
111	The land in this proceeding benefits from the Goulburn-Murray Water Connections Project (Connections Project) infrastructure, therefore in considering a proposal for the non-agricultural use of this land, we must evaluate the potential threat to the integrity of the irrigation system. 
112	Our understanding of the irrigation circumstances of Lot 2 (the subject land) is derived from the submissions and evidence presented at the hearing. Both Lot 2 and Lot 1 (immediately to the east of Lot 2) were associated with a dairy farm in the past.  In more recent times, Lot 2 has been used for grazing and some cropping. Currently, Lot 2 is not irrigated or farmed as the irrigation supply channel serving a series of laser graded bays has been decommissioned. This is not an irreversible change, as the distribution channel could be reinstated in the future, allowing irrigation on Lot 2 to resume in conjunction with the purchase of water.
113	The reality is that water use is dynamic throughout the irrigation district. Land owners make decisions about water use in response to new markets, declining markets and climatic conditions. Change can result in farming land coming in and out of irrigation use. 
114	In the case of Lots 1 and 2, the total delivery share (DS) is 1.69 DS, which translates to an annual fee charged by GMW for the upkeep of the irrigation infrastructure. The proportional allocation of the DS was 1.1 for Lot 1 and 0.59 for Lot 2, although the total DS of 1.69 is currently applicable only to Lot 1, as Lot 2 no longer utilises an irrigation supply. The Water Use Licence for the Lots 1 and 2 is 329.3 ML, again however, this allocation is now utilised only for Lot 1.  
115	Although the 21.68 ha size of Lot 2 is relatively small, the land is not uncharacteristic of lots evident in the immediate area. When viewed on a broad scale, the property size distribution is more dense north of Numurkah and then starts to decrease further east from Hendys Road. The subject land, being approximately 3 kilometres (km) north-east of Numurkah and only 500 m east of a rural residential settlement at the end of Naring Hall Road, is in an area we consider likely to remain as a mix of farming and ‘lifestyle’ properties. 
116	A further consideration is the agricultural quality of the land. We accept that the land has been used for cropping and grazing, however, under the present circumstances of the land (effectively dryland), grazing in favourable years is the most likely agricultural use.  
117	The distribution of soils is shown on the Goulburn Valley Soil Map 31 included in our reasons at Figure 3. In his evidence, Mr Poole describes the soils across the subject site as:
▪ 	Predominately Group 6 i.e. Blue coloured soils – Primary group estimated at 45% of the area - Muckatah Clay Loam (Mcl, Group 6 soils) and Boosey Loam (Bl Group 6 soils).
▪ 	Secondary Group 3 i.e. Green soils –Secondary group estimated at 35% of the area - Naring Loam ( Nl Group 3 soils)
▪ 	Secondary Group 2 i.e. Yellow coloured soils – Secondary group estimated at 20% of the area - Cobram Loam (Sfsl Group 2 soils).
This reference (Goulburn Valley Area - Legend to soils and crop suitability grouping) describes the Group 6 soils as being soils not recommended for irrigation. This represents 45% of the land area on the site and they represent the poorest soils in the region. The remaining soils on the property are of better quality and suitable for most irrigated crops.
118	Lot 2 (21.68 ha) is a relatively small land parcel. We accept the evidence of Mr Poole that 45% of the site is compromised by poor soils and low lying land. On this basis, we consider the low lying proportion of the land is realistically only available for opportunistic seasonal grazing. The remaining agricultural land, potentially suitable for cropping and grazing, consists of approximately 12 hectares. 
119	We are unable to conclude that the use of Lot 2 for the production of renewable energy will compromise the integrity of the irrigation network due to the particular circumstances of this site:
•	The land is currently not utilising irrigation infrastructure.
•	The supply of water to surrounding properties, including Lot 1 which is the only ‘downstream’ recipient, will not be compromised due to the creation of a supply easement through the subject land enabling connection to the existing pipeline from channel 6/6.
•	The use of the land for a solar farm will not permanently remove the land from agriculture. The subject land will remain available for future reconnection to the irrigation system.
Economic Evidence
120	It was Mr Appels’ evidence that ‘the intent of clause 14.02-3S ‘Protection of Declared Irrigation Districts’ and the Guideline is that they seek to direct solar energy facility investment to use land that is not serviced by modernised irrigation infrastructure in which the Victorian Government has recently invested’. 
121	Mr Appels gave evidence that the solar farm development would remove 21.86 hectares of irrigable land (that is supplied water from the recently upgraded backbone infrastructure) and alter the relationship between water delivery and water use in the region. He considers that these outcomes are counter to the purposes of clause 14.02-3S because: 
•	they do not protect agricultural land serviced by modernised irrigation infrastructure; and
•	the solar energy facility land use does not complement existing and future agricultural use and productivity. 
122	Mr Appels’ evidence is focussed on the importance of protecting the declared irrigation districts. However, when we consider the Guideline, we note that it specifically contemplates, and provides guidance for, solar energy facilities located in declared irrigation districts. That is, the Guideline does not preclude the consideration of solar energy facilities within irrigation districts, rather, it requires balancing the protection of irrigated agricultural land with the provisions supporting renewable energy proposals.
123	The Guideline provides a summary of clause 14.02-3S, which includes the following statement, relevant to Mr Appels’ first point:
•	protect agricultural land serviced by modernised irrigation infrastructure, to ensure the future viability of a declared irrigation district.
124	We note that here, the protection of the land serviced by modernised irrigation infrastructure is not an absolute. The direction to protect is for a specified purpose, and the purpose is to ensure the future viability of the declared irrigation district. 
125	So, we consider the appropriate question to be, will this solar energy facility jeopardise the viability of the declared irrigation district?
126	GMW consider these specifics of clause 14.02-3S in their role as ‘internal referral authority’ to DELWP for solar energy facility proposals in irrigated districts. In fact, the questions used in their Pre-Permit Assessments and the RWC advice to DELWP are phrased to include the specific terms from clause 14.02-3S. 
127	In the GMW advice dated 26 February 2020 and 16 March 2020, GMW provides specific reasons for why they consider that there will be continued viability of the declared irrigation district, as follows:
By limiting the solar farm development to Lot 2 and retaining the balance of the land for irrigation, the service point in question will continue to be utilised and GMW’s investment in modernised irrigation infrastructure for the ongoing viability of the irrigation district will continue to the realised.
128	We note that the final GMW advice dated 22 May 2020 changes that position and states that the solar energy facility ‘does not align with GMW’s asset management planning strategy for the viability of the irrigation district’. However, GMW give no specific reasons for this, other than the requirement for an easement in favour of Lot 1 to be created to continue servicing the property and be a viable part of the irrigation district. 
129	This easement has been proposed by the applicant and is included in our conditions.
130	Mr Appels other point is that the proposed land use does not complement existing and future agricultural use and productivity. Our view is that his evidence does not take into account the variability of agricultural land quality that exists within the district. This variability is demonstrated by the soil maps and the distribution of the FO (not taking into consideration land that is compromised by non-agricultural use, including ‘lifestyle’ use). 
Tribunal’s findings on Clause 14.02-3S
131	When assessed against the strategies for the protection of declared irrigation districts at clause 14.02-3S, we find that:
•	The proposal for the non-agricultural use of the land for a solar farm for a period of 30 years does not permanently remove the land from agriculture (as distinct from other non-agricultural uses such as ‘rural lifestyle’ dwellings).
•	The utilisation of 21.68 hectares (of which only 12 hectares may be considered consistently available for irrigation) for a non-agricultural use for a period of 30 years is unlikely to jeopardise the future viability of this irrigation district.
•	The integrity of the irrigation infrastructure connected to channel 6/6 is unaffected by the proposed development of Lot 2. Water allocations and access to water for the other benefiting land owners is maintained by the proposed construction of a new supply channel through the northern section of Lot 2, reinforced by a condition of the permit to establish the connection to Lot 1 prior to the development of the proposed solar farm.
•	The relatively small size of the subject land, combined with the retention of the distribution system to other users, does not inhibit the ability of the rural water corporation to make adjustments to the footprint of the irrigation district.
•	On the basis of the retention of the ability to retain water distribution access through Lot 2 to Lot 1, we find the proposed land use change does not limit the future investment in irrigation infrastructure for the purpose of gaining future irrigation service efficiency. 
Clause 19.01-2S ‘Renewable energy’
132	Clause 19.01-2S has the objective: 
To promote the provision of renewable energy in a manner that ensures appropriate siting and design considerations are met.
133	The strategies include to:
•	Facilitate renewable energy development in appropriate locations.
•	Develop appropriate infrastructure to meet community demand for energy services.
•	Consider the economic and environmental benefits to the broader community of renewable energy generation while also considering the need to minimise the effects of a proposal on the local community and environment.
134	The Guideline is included in the relevant policy documents at clause 19.01-2S.
135	Our findings in relation to the Guideline, including further assessment of the location, can also be found later in our reasons.
136	There was no dispute from the parties that the development would meet a community demand for energy services. 
137	However, the respondents did raise a concern that their community had already contributed much towards the demand for energy services, given the number of existing solar energy facilities in the region. 
138	In response, the applicant took us to the AEMO Forecast generation of renewable resources map which identifies the Numurkah area as an area of solar energy generation growth.

Figure 2	Forecast generation of renewable resources
139	The AEMO forecast map is inviting future interest in renewable energy projects. Considering that the map shows the majority of future renewable investment is projected to be in solar, the argument that we should completely exclude consideration of solar energy facility investment in the GMID seems unrealistic.
140	There was also no dispute from the parties regarding the ‘the economic and environmental benefits to the broader community of renewable energy generation’. However, the respondents did raise concerns regarding the effects of a proposal on the local community and environment, stating that it would have an economic impact on the community (as farming contract work would be removed) and the local drainage would be affected.
141	We consider that turning over the relatively small size of the land to a non-agricultural use will have minimal economic effect on the local community and may in fact make a positive contribution. 
142	The expert evidence is that local drainage will remain unaffected. We have included permit conditions to give effect to this advice. We provide our assessment of local drainage conditions in our reasons below at paragraph 201. 
Clause 53.13 Renewable Energy Facility (Other Than Wind Energy Facility)
143	The purpose of clause 53.13 is:
To facilitate the establishment and expansion of renewable energy facilities, in appropriate locations, with minimal impact on the amenity of the area.
144	Application requirements state that a site and context analysis and a design response addressing various matters must be provided as part of the application.
145	The relevant decision guidelines include:
•	The effect of the proposal on the surrounding area in terms of noise, glint, light spill, vibration, smell and electromagnetic interference.
•	The impact of the proposal on strategically important agricultural land, particularly within declared irrigation districts.
•	The impact of the proposal on the road network.
•	The Guideline.
146	Our findings in relation to the Guideline, including further assessment of strategically important agricultural land, can also be found later in our reasons.
147	The visual impact of the solar energy facility is a relevant consideration and it is a matter specifically referred to in the Guideline, clause 53.13, the purpose and decision guidelines of the FZ, and in policy more broadly.  
148	The Officer Assessment Report relevantly states the following:
In terms of visual amenity values, the closest sensitive interface is a dwelling to the west, which is within the Farming Zone and located approximately 122m from the nearest solar panels. Beyond that, there is an area of Rural Living Zone that contains approximately 23 dwellings, which is located approximately 550m from the site boundary at the nearest point. Other dwellings are scatted to the east and west at varying distances. The proposed landscaping will screen the proposal and reduce its visibility from these locations, with a range of planting types that will grow to varying heights (up to 5m) and densities. It is acknowledged that the landscaping will take approximately ten years to reach full maturity. In the intervening period, the proposal will be more visually prominent. However, this is a temporary proposition that is assessed as being reasonable, especially given the moderate sensitivity of the surrounding rural context. Overall, it is assessed that the proposal will not have any unreasonable impacts on visual amenity values, including on those of nearby dwellings, on the basis that the proposal landscaping is secured through suitable permit conditions.
149	The Minister’s submissions note that they accept the officer’s assessment that the proposal will not have significant impacts on landscape character values or unreasonable impacts on visual amenity values noting that landscaping must be secured by appropriate permit conditions.
150	DELWP agreed that, as a non-agricultural use, the proposed solar farm is a relatively low impact activity. And will not result in significant visual impact. They noted that:
The solar panels are a maximum of 3.993 metres above natural ground level at their highest point. The eastern, southern and western site edges34 are proposed to be screened by a 3 metre wide landscape buffer that is setback 4 metres from Haring Hall Road and 12 metres from the east and west boundaries. The landscape buffer sits in front of the proposed security fence. The site is not located on or adjacent to any significant main roads (the closest being Numurkah Road approximately 900 metres away at its closest point). The land is flat and there are no particular viewpoints nearby.
151	We agree with the officer’s assessment of the landscape and visual amenity impacts and consider that the proposal will not have significant impacts on landscape character values or unreasonable impacts on visual amenity values, if appropriate landscaping conditions are included in the permit. 
152	We accept the landscaping conditions proposed and have included them in the permit conditions.
153	We are conscious that those living around the site will be subject to a changing landscape. However, we consider that the level of disturbance that is likely to occur is acceptable given the FZ context and the balance of net community benefits arising from sustainable electricity generation at a suitable site.  
154	Further, we note that there are a number of other issues raised by the proposal that are not contested by the Minister. The issues accepted by the Minister as not in contention are recorded at Appendix B, and include; flooding, bushfire, vibration, glint and glare, light spill, dust, electromagnetic radiation and interference, landscape character and visual amenity values, heat island effect, flora, fauna, and road network impacts.
155	It is our view that protection of the amenity of surrounding properties is acceptable for the reasons that the land is relatively flat, vegetation screening is proposed at the key interfaces, and the solar panels are set back from all boundaries.
Solar Energy Facilities Design and Development Guideline
156	The purpose of the Guideline is to provide:
•	information for solar farm developers (proponents), the community, regulators and decision-makers (responsible authorities) relating to the Planning and Environment Act 1987 (the P&E Act) and the Victoria Planning Provisions (VPPs)
•	information and direction about the policy, legislative and statutory planning requirements relating to the siting and design of solar energy facilities
•	an overview of best-practice advice relating to each stage of the site selection, design, construction, operation and decommissioning continuum.
157	The current version of the Guideline is dated August 2019 and a draft version of the Guideline was previously available to allow familiarisation with the requirements. 
158	Relevantly to this decision, the Guideline specifically contemplates and provides guidance for:
•	solar energy facilities located in declared irrigation districts;
•	identifying suitable locations for solar energy facilities;
•	avoiding loss of high-value agricultural land, including strategically important agricultural land;
•	natural hazard risk management, including bushfire and flooding
159	We consider each of these topics in turn below.
Declared irrigation districts
160	The Guideline requires proponents to seek early advice from the relevant rural water authority in two locations. The first reference states:
Solar energy facilities located in declared irrigation districts
A proponent must engage the relevant rural water corporation and DELWP early in the site selection phase of a project to ensure that the integrity of the irrigation system is maintained.
A rural water corporation and DELWP can assist proponents by providing guidance on where appropriate areas may exist and advice on other matters that need to be taken into consideration.
Early engagement will contribute to a more streamlined decision-making process and lower project planning costs which are both essential to a project’s success. Further information about this can be found on page 16 of this Guideline.
(Tribunal emphasis)
161	The second reference on page 16 states:
If a proponent plans to locate a solar energy facility in an irrigation district, it should consult early with the relevant rural water corporation, to determine the appropriateness of the location.
162	Here, the Guideline also identifies GMW as the managing rural water corporations established under the Water Act 1989 for the GMID.
163	The Guideline then goes on to set out the key policies of the VPP as follows:
VPP Clause 14.02-3S Protection of Declared Irrigation Districts sets out objectives and strategies to manage and protect irrigated areas.
Key policies include the need to:
•	identify and plan for the future needs of communities to adapt and adjust to land use change in a declared irrigation district
•	protect agricultural land serviced by modernised irrigation infrastructure, to ensure the future viability of a declared irrigation district
•	ensure non-agricultural land use does not undermine the integrity of the irrigation network and complements existing and future agricultural use and productivity
•	ensure land use change in a declared irrigation district does not negate the potential opportunities for a rural water corporation to make adjustments to the footprint of a declared irrigation district that are identified under an approved plan or strategy
•	ensure land use change does not limit the ability of future investment in irrigation infrastructure to realise the intended benefits of minimising water loss, improving irrigation service efficiency to the farm gate and increasing overall agricultural productivity.
In addition, the responsible authority should also consider:
•	alignment with local and state government irrigation infrastructure priorities, managed by rural water corporations
•	the importance of primary irrigation infrastructure for current and future rural water corporation asset management planning and the viability of rural irrigation districts and communities
•	the potential impacts of withdrawing sites from irrigated activity on future viability planning, where those sites are serviced by modernised irrigation infrastructure
•	the ability of a site to revert back to irrigated activity in the future, and the ease with which it can do so.
Given the importance of the irrigated networks to Victoria, Clause 66.02 Use and development referrals has a statutory referral arrangement to ensure a planning permit assessment considers the above matters. The Decision guidelines section has further information about this and other referral arrangements.
(Tribunal emphasis)
164	We note that the Guideline requires the proponent to engage both GMW and DELWP. 
165	The Decision Guidelines provided in the Guideline specifically consider ‘the impact of the proposal on strategically important agricultural land, particularly within a declared irrigation district’, as follows:
•	the impact on (including numbers of) irrigators downstream of the proposed site that depend on the ongoing operation of irrigation assets traversing the site
•	the usage level of water compared to the actual capacity of the irrigation infrastructure servicing the site, based on rural water corporation mapping
•	whether or not the irrigation infrastructure servicing the site has benefited from Commonwealth or state government investment in infrastructure modernisation
•	whether the proposed site is connected to the modernised irrigation infrastructure and is integral to the rural water corporation’s current and/or future planning for the viability of the irrigation district
•	whether or not the overall change in land use at the site aligns with a rural water corporation’s asset management planning strategy for the viability of the irrigation district
•	whether the change in land use closes off any future opportunities for a rural water corporation to make irrigation footprint adjustments identified under a plan or strategy.
166	We note that the presence of these Decision Guidelines in the Guideline indicate that solar energy facilities on strategically important land are anticipated. It is clear the Guideline seeks to ensure that irrigation infrastructure is protected. However, this doesn’t mean that a site for a renewable energy facility cannot be assessed in that location. It is a merits exercise. 
167	Our findings in relation to GMW’s preliminary advice and internal referral advice can be found at paragraph 70. Our findings in relation to clause 14.02-3S and declared irrigations districts can be found at paragraph 109.
Identifying suitable locations
168	When identifying suitable locations, the protection of the integrity of the irrigation network is reiterated again, as follows:
Solar energy facilities will not be permitted to undermine the integrity of the irrigation network within a declared irrigation district as discussed on page 16.
169	The Guideline then goes on to state:
A solar energy facility should not lead to:
•	the loss or interruption of supply to the immediate or broader electricity transmission network
•	the loss of vegetation, habitat or species of environmental importance
•	the loss of cultural heritage or landscape values of significance
•	the loss of productive, state-significant agricultural land
•	increased exposure of the area to fire, flood or other natural or environmental hazard.
Ideally, a solar energy facility should be located:
•	on land with topographical conditions that avoids the need for unnecessary or excessive earthworks or changes to the natural landscape
•	to avoid the loss of native vegetation and biodiversity and if losses cannot be avoided, they are minimised and can be offset
•	close to the electricity grid network, to minimise the need for additional infrastructure and associated impacts
•	a sufficient distance from existing urban areas or designated urban growth areas
•	where there can be adequate space between facilities within an area to avoid cumulative impacts of built form concentration
•	away from the floodplain of a major water course or wetland
•	where it has ready access to main roads.
(Tribunal emphasis)
170	We say this site is in a suitable location because it meets all of these requirements. We consider the items underlined above to be of particular relevance to this site. We address those points at the following paragraphs:
•	productive, state-significant agricultural land at paragraph 173;
•	bushfire at paragraph 190; and
•	flooding and earthworks changes at paragraph 201.
Avoiding loss of high-value agricultural land 
171	When contemplating the avoidance of losing high-value agricultural land, the Guideline identifies strategically important agricultural land as follows:
Strategically important agricultural land may be considered to be high-value and of strategically important due to a combination of features such as high-quality soils, good rainfall, access to water, resilience to climate change, infrastructure investment and integration with industry.
VPP Clause 14.01-01S Protection of agricultural land sets out policy objectives and strategies to manage and protect agricultural land. Proponents should consult the regional and local segments of the relevant planning scheme, as areas of strategically significant agricultural land may also be identified at these levels. Key policy measures include:
•	protecting strategically important agricultural and primary production land from incompatible land use
•	protecting productive agricultural land that is of strategic significance to a local area or in a regional context
•	avoiding the loss of productive agricultural land without considering the impact of the loss on the agricultural sector and its consequential effect on other sectors.
As part of the site selection process, decisionmakers should also consider the policy objectives and strategies outlined above and consider:
•	the impact on the loss of the site if it has high-quality soils, particularly soils that are niche to a type of crop or other agricultural activity
•	the potential loss of reliable, accessible water (such as irrigated areas) and its impact at a local or regional scale
•	the impact of fragmentation and a change of land use to non-agriculture activity on local and regional productivity and output
•	the impact of a change of land use on recent and/or current efforts to modernise and reform agricultural activity in the area
•	whether the land has specifically been set aside or defined for agricultural use and development in a planning scheme or other strategic document
•	whether the change in land use is to the detriment of a government’s previous or existing investment and support for the site or the area
•	whether the proposed solar energy facility can co-locate with other agricultural activity, to help diversify farm income without reducing productivity.
A proponent should address the considerations above in the written report component of the planning permit application.
(Tribunal emphasis)
172	We consider the items underlined above to be of particular relevance to this site. Our assessment of these issues is provided below at paragraph 173.
Will this proposal result in a loss of high-value agricultural land?
173	Under the heading of ‘identifying suitable locations’, the Guideline specifically contemplates ‘avoiding the loss of high-value agricultural land’ and then, more specifically consider ‘strategically important agricultural land’. 
174	There are several references to different types of ‘agricultural land’ and definitions in the Guideline, so we consider them in turn as follows and note the relevant page numbers.
i	Is it “high-value agricultural land”? (page 15)
a.	Is it “strategically important agricultural land”? (page 15)
i.	“protecting productive agricultural land that is of strategic significance to a local area or in a regional context” (page 15)
b.	Is it “productive, state-significant agricultural land”? (page 10)
c.	Is it “agricultural land serviced by modernised irrigation infrastructure”? (page 16)
175	The Minister for Planning and DELWP submit that, the protection of the productive agricultural land is referring to land that is of strategic significance to either a local area or in a regional context. Further, they submit that the Strategic Agricultural Land Map shown below identifies the area as ‘strategic agricultural land’. 

Figure 3	Strategic agricultural land map
176	The applicant submits that this map is too generalised to be helpful. For example, it includes the town of Numurkah as ‘strategic agricultural land’. As such, the applicant says that this site must be assessed on its own merits and the determination of whether it is “high-value agricultural land” must be done based on the evidence for this site. 
Soil evidence
177	The Guideline references the importance of a site’s land and economic attributes in determining strategically important agricultural land. An analysis of the agricultural capability, relative value and state significance of the property was provided in the expert evidence of Mr Poole and Mr Pitt.
178	Mr Poole gave evidence that the agricultural capability of the site is predominantly determined by soil type and group classification. He recognises that, although topsoils can be improved or modified to some extent, the soil classifications are an inherent characteristic of the site and are useful in understanding the range of crops that will thrive at this site.
179	The soil types for the site have been identified using the reference maps provided by Agriculture Victoria, shown below.

Figure 4	Extract from Goulburn Valley Soil Map 31, J.K.M. Skene and T.J. Poutsma (1962) 'Soils and Land Use in Part of the Goulburn Valley, Victoria', Department of Agriculture
180	Mr Poole describes the site as having:
•	Predominately Group 6 i.e. blue coloured soils – Primary group estimated at 45% of the area
•	Muckatah Clay Loam (Mcl, Group 6 soils) and Boosey Loam (Bl Group 6 soils)
•	Secondary Group 3 i.e. Green soils – Secondary group estimated at 35% of the area
•	Naring Loam ( Nl Group 3 soils)
•	Secondary Group 2 i.e. Yellow coloured soils – Secondary group estimated at 20% of the area
•	Cobram Loam (Sfsl Group 2 soils).
This reference 4(Goulburn Valley Area -Legend to soils and crop suitability grouping) describes the Group 6 soils as being soils not recommended for irrigation. This represents 45% of the land area on the site and they represent the poorest soils in the region. The remaining soils on the property are of better quality and suitable for most irrigated crops.
4 http://vro.agriculture.vic.gov.au/dpi/vro/gbbregn.nsf/pages/gb_soil_survey_legend
181	Mr Poole gave evidence that the property has a high proportion of poor quality soils that are not recommended for irrigation, and that, while it has access to the irrigation network and to drainage, the site would not be described as high quality soils or niche to a type of crop or other agricultural activity as described by the DELWP design and development guideline.
182	Mr Pitt gave evidence that the soils of the Moira district have been the subject of detailed survey by Butler, Baldwin, Penman, and Downes, 1942, (Butler et al). This soil survey was accompanied by a map of the district soils and the detail of the soils within the site shown below.

Figure 5	Extract of Soil Map from Butler, Baldwin, Penman and Downes
183	The investigations by Butler et al identified and delineated four soil types that occur on the property: Cobram Loam, Naringaningalook Loam, Boosey Loam and Muckatah Clay Loam.
184	The typical soil profile description of these soils as documented and published by Butler et al are reproduced in the table below.

Table 1 	Soil Profile Descriptions Extracted from Butler, Baldwin, Penman and Downes	
185	Pitt considers that the representation of these soils as unsuitable for commercial agriculture is incorrect and misleading. He gave evidence that they have been used on this farm and other farms in the district for highly productive irrigated agriculture for more than 50 years, that there has been no significant physical or chemical deterioration in that time, and that there is nothing to suggest that future use could not be continued.
186	He gave evidence that most of the adjoining farms are all actively used for grazing and fodder production and that cereal crops and oilseed crops are grown on farms to the east and north east. Whilst he acknowledges that the Boosey Loams and the Muckatah Clay Loams are more difficult to manage for irrigated commercial agriculture, and are less forgiving when mistakes are made such as overwatering or grazing too soon after irrigation, there are a number of management interventions that can be used to make poorly drained soils more productive. 
187	He considers the site to be potentially suitable as a fodder production unit for the dairy farms in the surrounding district or dry cow agistment, heifer rearing, and bull rearing. He notes that all these uses would seek to use the existing irrigation infrastructure on the site. He also considers that part of the site, and access to the associated irrigation infrastructure, is suited to horticultural production, hydroponics, glasshouse production of flowers, wholesale nurseries and some Asian vegetable crops, which do not depend on the inherent drainage characteristics of the soils.
188	Whilst we acknowledge that some of the soils on the site could be used for grazing and fodder production, we find this use an unlikely outcome for the reason that the dairy industry now operates at scale that requires large scale fodder support. In this regard, we note that a previous farmer of the subject land cropped approximately 14 hectares, which is the proportion of the land above the FO (land within the FO was generally used for seasonal grazing).
Natural hazard risk management
189	The Guideline contemplates a range of natural and environmental hazards that a proponent should consider as part of site selection and operation of the facility, including exposure to bushfire, flood, landslip, salinity and erosion, and sets out the VPP and local planning scheme considerations.
Bushfire
190	For bushfires the Guideline advises that:
Proponents should consult the relevant fire management authority early in the site selection and design process, to ensure a facility avoids unnecessary bushfire risk exposure and has fire management planning in place to manage risk. Relevant authorities include the Country Fire Authority (CFA), Metropolitan Fire Brigade (MFB) and DELWP.
191	Under the Design Stage of the Guideline, it goes on to require that:
Bushfire
Building a solar energy facility should not increase the risk of bushfire in the area. A proponent can take practical measures in consultation with the relevant fire authority to mitigate any risks.
The MFB, CFA and DELWP are the relevant fire management authorities in Victoria. A solar energy facility built within the BMO or BPA must maintain site vegetation to appropriate management levels. This includes:
•	maintaining grass at below 100mm in height during a declared fire danger period
•	establishing fire breaks around the perimeter of the facility
•	providing adequate onsite water supply and firefighting equipment
•	meeting site access management requirements.
192	The site is within a Designated Bushfire Prone Area; however, the site is not within the Bushfire Management Overlay. 
193	The respondents raise concerns about the proposal being located in a designated bushfire prone area and being fenced in a designated bushfire prone area.
194	The Officer Assessment Report confirms that the proposal has been designed in accordance with the CFA’s Guidelines for Renewable Energy Facilities and the requirements for access, separation and management. The assessment states that the entire perimeter of the site includes at least 10 m of open space for emergency access and fire separation, as per the CFA Guidelines, while suitable provision is made for firefighting water supply. Further the proposal does not include batteries or the storage of dangerous goods.
195	The Minister accepts the assessment that appropriate conditions can address the risk of bushfire if a permit is granted.
196	We are satisfied that the proposal is acceptable and consistent with the CFA’s Guidelines for Renewable Energy Installations – 2021 Update.
197	We accept the bushfire condition proposed by the CFA. We have included them in the permit conditions.
Flooding
198	For flood management, the Guideline advises that:
A proponent should avoid siting a solar energy facility within an identified floodplain to a major river system and a mapped wetland area, to avoid unnecessary risk to the facility and its associated infrastructure and the consequential need for flood attenuation measures such as flood levies and barriers.
A solar energy facility can occupy a large site, and earthworks to grade or level a site can change the overland flow of water, which can change natural and constructed drainage patterns. This can increase the risk from future flood events on the site and neighbouring land.
Local planning schemes may identify if an area is flood-prone by applying one of either the Flood Overlay, the Land Subject to Inundation Overlay or the Urban Flood Zone to an area. If a site is located within one of these controls, a referral to a Floodplain Management Authority (FMA) will be required, as part of the planning permit application process.
199	Under the Design Stage of the Guideline, it goes on to require that:
Flooding
A solar energy facility should not increase flood risks on the site or in the immediate area. Flood risks (unlike most other natural hazards) are predictable in terms of their location, depth and extent. This means a proponent can implement measures to reduce flood damage, including:
•	minimising grading or levelling of the site, to avoid changes to overland water flow and discharge patterns
•	avoiding locations within the immediate floodplain or a watercourse or river system
•	elevating structures above the floodplain as recommended by the relevant FMA.
DELWP has information about where flooding occurs and the systems in place to manage them.
Proponents should contact the relevant FMA to obtain site-specific advice to inform the planning permit process.
200	The Decision Guidelines provided in the Guideline specifically considers ‘the impact of the proposal on the natural environment and natural systems’, including as follows: 
•	how bushfire and flood management measures will be dealt with to the satisfaction of the relevant referral authorities.
Potential flood impacts and local drainage conditions
201	The site has been laser graded, with a fall of about 0.6 m over 420 m from west to east, for flood irrigation. There are irrigation channels along the western and northern boundaries as shown below. 

Figure 6	Existing drainage features
202	This irrigation channel prevents runoff from the west and north flowing onto the site. There are a number of farm drains on the northern and eastern side of the site, both within and outside the Site. These farm drains collect runoff from the site and convey it north to a dam or south into a table drain along Naring Hall Road. The farm drain furthest to the east is outside of the site boundary.  Water in the table drain along Naring Hall Road is conveyed to the south under Naring Hall Road via a culvert. The operation of these drainage features were confirmed by the neighbours, Geoff Hicks,  Yelena Elliot, and Braden Reghenzani & Others, who were respondents to this proceeding. 
203	The site is affected by a RFO and LSIO as shown below. 

Figure 7	Flood overlays
204	The GBCMA advised that the 1% AEP (annual exceedance probability) flood level for the site is 108.41 m AHD. This level was established from the Numurkah Floodplain Management Study (FPMS). In their letter the GBCMA provided flood mapping at the site from the FMPS which shows more extensive flooding than indicated by the flood overlays. Using the Onleys’ feature survey Dr Jempson derived the 1% AEP flood extent on the site for the GBCMA flood level of 108.41 m AHD. This extent along with the combined RFO/LSIO extent are shown below. 

Figure 8	Derived 1% AEP Flood Extent for 108.41 m AHD Flood Level
205	The 1% AEP extent shown above is generally similar to the extent shown in the GBCMA advice. Both extents are based on the 108.41 m AHD level but the GBCMA extent is based on ground surface elevation data derived from LiDAR (aerial) survey rather than the ground survey that Dr Jempson used. It is expected that the extent derived from the ground surface will be more reliable than that derived from LiDAR.
206	It was the evidence of Dr Jempson that the 1% AEP flooding is from regional flooding rather than local stormwater runoff and that the regional flooding at the site is a result of backwater flooding from the Muckatah Depression to the south. The analysis in the FPMS indicates that the flooding along Muckatah Creek and Muckatah Depression in large events is typically long-duration (over many days) and slow rising. The flooding along Muckatah Depression and the backwater flooding to the site is shown schematically below.

Figure 9	Regional flooding flow direction schematic
207	The GBCMA advice notes that the deepest flooding on the site during a 1% AEP flood event would be in the order of 0.4 m along the eastern property boundary and relatively shallow elsewhere. Dr Jempson drew the same conclusion when comparing the 108.41 m AHD flood level with the site ground levels shown in the Onley Contour Survey & Feature Plan, although he recognises that there are localised areas of depths greater than 400 m, specifically, whilst the flood depths where the panels are located are mostly less than 300 mm, but in the north east corner there are depths greater than 400 mm and up to 530 mm.
208	The permit application was referred under clause 66.04 ‘Referral of Permit Applications Under Local Provisions’, as the proposal involves works that triggers referral under clause 5 to the Incorporated Document at clause 81 ‘Earthworks Controls in the Shire of Campaspe, City of Greater Shepparton and Moira Shire – August 2015’.
209	Based on the submitted flood risk report, the GBCMA was satisfied the proposal development will not impact on conveyance and will have negligible impact on the temporary storage of floodwater during major floods, subject to the condition that the finished floor level is constructed at 108.71 m AHD, as follows:
The finished floor level of the proposed housings of electrical equipment including switchboards, inverters, and the like, must be constructed at least 300 millimetres above the 1% AEP flood level of 108.41 metres AHD, i.e. 108.71 metres AHD.
The lowest part of the solar panels at the “MAX TILT” position must be 300 millimetres above the 1% AEP flood level of 108.41 metres AHD, i.e. 108.71 metres AHD.
210	We accept the condition proposed by GBCMA and their reasons for it. We have included it in the permit conditions.
211	In terms of the Guideline, the proposal responds to the requirements as follows:
•	minimising grading or levelling of the site, to avoid changes to overland water flow and discharge patterns – there is no change to the grading or leveling of the site proposed, with the internal gravel access tracks to be constructed at existing ground levels;
•	avoiding locations within the immediate floodplain or a watercourse or river system – the regional flooding at the site is a result of backwater flooding from the Muckatah Depression to the south; and 
•	elevating structures above the floodplain as recommended by the relevant FMA – the GBCMA was satisfied with the proposed development subject to the conditions relating to flood levels, noted above.
212	The Minister accepts that the proposal is acceptable having regard to flood risk factors subject to imposing relevant conditions if a permit is granted. In this regard we accept the conditions recommended by GBCMA.
213	The respondents raise concerns about the proposal being located in a flood plain, being fenced in a flood plain and having an impact on the operation of the farm drains. They are concerned that: 
•	the proposal is sited in a known flood plain;
•	if any earthworks are carried out it will greatly increase the flood levels on the neighbouring properties;
•	flood levels and flows will be impacted by debris caught up in fencing;
•	access to the farm drains being blocked by fencing.
214	We are satisfied with Dr Jempson’s evidence that the proposed solar farm will not present a risk to staff, add infrastructure to the floodplain that would be susceptible to flood damage, nor cause an increase in flood levels or flood velocities on neighbouring properties to the extent that it would cause nuisance.
215	Further, we recognise that the potential impact on flooding by the current design of the solar energy facility, including the fencing and the lack of earthworks, are minimal. It was Dr Jempsons expert evidence that the presence of the fencing and any resulting debris would not increase flood levels or flood velocities on neighbouring properties to the extent that it would cause nuisance as the regional flooding at the Site is a result of backwater flooding from the Muckatah Depression to the south and not likely to be fast flowing flood waters.
216	We are therefore satisfied that the proposal does not represent an unacceptable risk of adverse flood impacts to surrounding land. We acknowledge that solar energy facilities are able to be located in FO, subject to appropriate conditions and the Guideline requirement to “elevate structures above the floodplain as recommended by the relevant FMA” specifically contemplate this scenario.
217	We are satisfied that the proposal is acceptable and consistent with the flood impact assessment recommendations and advice made by the GBCMA, that the solar panel infrastructure be appropriately located and sited.
Farming Zone
218	The Land sits within the FZ. The purpose of the FZ set out in clause 35.07 is:
•	To implement the Municipal Planning Strategy and the Planning Policy Framework.
•	To provide for the use of land for agriculture.
•	To encourage the retention of productive agricultural land.
•	To ensure that non-agricultural uses, including dwellings, do not adversely affect the use of land for agriculture.
•	To encourage the retention of employment and population to support rural communities.
•	To encourage use and development of land based on comprehensive and sustainable land management practices and infrastructure provision.
•	To provide for the use and development of land for the specific purposes identified in a schedule to this zone.
219	A renewable energy facility (other than a wind energy facility) requires a planning permit in this zone, subject to meeting the requirements of clause 53.13, which is a provision specific to any renewable energy facility (other than a windfarm) and contains application requirements and decision guidelines. We address the permit applicant’s response to clause 53.13 elsewhere in our reasons. 
220	With regard to the FZ and in the context of providing for the use of land for agriculture, the purpose of the zone refers to the retention of productive agricultural land and:
To ensure that non-agricultural uses, including dwellings, do not adversely affect the use of land for agriculture.
221	The decision guidelines of the FZ refer to impacts from non-agricultural uses, again in the context of the effect on productive agricultural land and particularly whether the proposed use will:
•	Support and enhance agricultural production.
•	Permanently remove land from agricultural production.
•	Limit the operation and expansion of adjoining and nearby agricultural uses.
222	The decision guidelines also refer to: 
•	The capacity of the site to sustain the agricultural use.
•	The agricultural qualities of the land, such as soil quality, access to water and access to rural infrastructure.
223	The purpose and decision guidelines emphasize the protection of productive agricultural land. A proposal for the non-agricultural use of land therefore needs to demonstrate that the activity will support and not diminish the purpose of the zone. In this case, we find the proposal for a solar energy facility on the subject land is acceptable when assessed against the relevant purpose and decision guidelines of the zone for the following reasons:
•	the site is relatively small and unlikely to have utility for integration with a larger farming operation; 
•	whilst the site has cropping potential, a significant proportion of the site is compromised by the poor soils in the FO;
•	it does not permanently remove the land from agricultural production;
•	it is unlikely to jeopardise the future viability of this irrigation district;
•	the connectivity of the irrigation supply system is unaffected; and 
•	it does not limit the future investment in irrigation infrastructure.
Overlays
Land Subject to Inundation Overlay (LSIO)
224	We note that PS613623 is subject to the Land Subject to inundation Overlay (LSIO). However, it is largely Lot 1 that is affected. This proposal only considers Lot 2, which is predominantly unaffected by the LSIO. 

Figure 10	Lot 2 on PS613623 is not subject to the LSIO
225	As seen in the figure above, the LSIO to the top north-west of the site does just touch Lot 1 but the parties agreed that the LSIO does not affect the proposal.
Rural Floodway (RFO)
226	The Land is subject to the Rural Floodway Overlay (RFO).

Figure 11	Lot 2 on PS613623 is subject to the RFO2
227	Relevantly, the purposes of the Rural Floodway Overlay include:
•	To ensure that any development maintains the free passage and temporary storage of floodwater, minimises flood damage and is compatible with flood hazard, local drainage conditions and the minimisation of soil erosion, sedimentation and silting.
•	To reflect any declarations under Division 4 of Part 10 of the Water Act, 1989 if a declaration has been made.
•	To protect water quality and waterways as natural resources by managing urban stormwater, protecting water supply catchment areas, and managing saline discharges to minimise the risks to the environmental quality of water and groundwater.
•	To ensure that development maintains or improves river and wetland health, waterway protection and flood plain health.
228	The Land is subject to clause 44.03-2, which provides that a permit is required to construct a fence on land subject to a Floodway Overlay, and the Schedule to clause 44.03, which specifies the following additional decision guidelines:
•	Any provisions of the Moira Shire Interim Floodplain Management Plans July 1997.
•	The ‘Earthworks Controls in the Shire of Campaspe, City of Greater Shepparton and Moira Shire – August 2015 incorporated at Clause 72.04.
Specific Controls Overlay (SCO)
229	At the time on the hearing the Land was subject to the Specific Controls Overlay (SCO) under clause 45.12 of the Scheme. The SCO also applies to all other adjoining land in the GMID. Schedule 1 to the SCO lists the Goulburn-Murray Water Connections Project Incorporated Document (June 2020) as an Incorporated Document.
230	The Connections Project document includes the statement at Section 8 that:
 This control expires on 31 December 2021.
On the 24 December 2021, Amendment GC196 was introduced into the planning scheme.  Amendment GC196 replaces the Goulburn-Murray Water Connections Project Incorporated Document (June 2020) with a new incorporated document entitled Goulburn-Murray Water Connections Project and Water Efficiency Project - Incorporated Document (November 2021). This new document also replaces the Schedule to clause 45.12 (Schedule to Specific Controls Overlay). The amendment also extends the expiry date of the control to 31 December 2022 for the Goulburn-Murray Water Connections Project and sets the expiry date for the Goulburn-Murray Water – Water Efficiency Project to 30 June 2024. 
231	The Tribunal is not aware of any specific provisions of GC196 that would alter the application of the Schedule to the Specific Controls Overlay to the subject land as pertained prior to GC196, other than the adjusted expiry date.
232	 Clause 72.04 of the Scheme applies to the use and development of land undertaken by or on behalf of GMW for the purposes of the Goulburn-Murray Water Connections Project, which is the irrigation infrastructure modernisation project for the GMID. Under the Project, the Victorian Government, in conjunction with the Commonwealth and local irrigators, is investing $2 billion to upgrade northern Victoria’s irrigation infrastructure
233	In 2020 the Victorian Government announced the Connections Project achieved the targeted saving of 429GL, resulting in an expected average increase in irrigation water delivery efficiency from about 70% to at least 85%. The Water Minister’s statement in 2020 explains:
The Connection Project water savings have been achieved by decommissioning spur channels, upgrading backbone channels with plastic lining and clay remodelling, automating meters to provide significantly better accuracy and automating the operation of irrigation channels.
234	The Explanatory Statement for Amendment GC196 also explains that this recent amendment;
is required to ensure sufficient time for completion of works for irrigation modernisation works funded by the State and Commonwealth Governments to create a more efficient automated water delivery network in the GMID. The works comprises two projects:
•	Goulburn- Murray Water Connections Project (Connections Project), which is the irrigation infrastructure modernisation project for the Goulburn-Murray Irrigation District.
•	Goulburn- Murray Water - Water Efficiency Project (WEP) which will improve water delivery management and irrigation services, and recover water now being lost through leaks, evaporation and system inefficiencies.
What conditions are appropriate?
235	The conditions in Appendix A are based on the revised conditions which were circulated to parties during the hearing. Comments on the revised draft conditions have been considered, together with our assessment of what conditions are appropriate. We do not itemise our responses to all the suggested revisions and additions to conditions. These were extensive, and we have considered all relevant submissions and evidence made along with our findings as set out in these reasons. 
236	Two of the referral authorities (GMW and GBCMA) were not represented at the hearing but each advised they had no objection to the application subject to the inclusion of their relevant conditions. These conditions have been incorporated. The CFA’s conditions have also been included.
Conclusion
237	The planning scheme, and specifically the Guideline, assists decision makers to assess the development of solar energy facilities in appropriate locations. The provision of solar energy facilities is part of the Government’s commitment to renewable energy targets.  
238	The proposed solar energy facility is in the FZ. State and local policy encourages the retention of productive agricultural land and aims to ensure that non-agricultural uses do not adversely affect the use of land for agriculture.
239	Our assessment of this proposal therefore necessitates evaluating this proposal for a solar energy facility against the policies designed to protect productive agricultural land.
240	As a non-agricultural use, the introduction of a solar energy facility inherently creates a policy tension between the objectives for renewable energy production and the protection of productive agricultural land. This requires a close assessment of the merits of the proposed site.  
241	On the one hand, the Land is in the FZ and the GMID, which brings with it a certain expectation for agricultural and irrigation use. On the other hand, the Land is subject to the Guideline whose purpose is to assist the granting of a permit for solar energy facilities and specifically deals with identifying suitable locations for solar energy facilities, the consideration of solar energy facilities in declared irrigation districts, and avoiding loss of high-value agricultural land. The Guideline and the policy environment provide a strong emphasis on the need to protect productive, state-significant agricultural land. Solar energy facilities located in declared irrigation districts, that have benefited from Commonwealth and State government investment in infrastructure modernisation, need to ensure that the integrity of the irrigation system is maintained.
242	When we balance the matters before us, we find the balance weighs in favour of approval. 
243	The submissions in this proceeding advanced to protect the modernisation program are confined to high level policy arguments. By high level, we refer to the proposition that the modernisation program and renewable energy are mutually exclusive; i.e. that all of the land benefitting from the modernisation system should be protected. On the evidence before us, this is not the case. There is considerable variability within the irrigation district – for example:
a.	Variation in land use activity in the FZ.
b.	Susceptibility to flooding where included in the FO.
c.	Variation in soil quality as identified by the soil mapping. 
d.	Patterns of land fragmentation. 
244	The irrigation district is not a level playing field and to form a view considering only the high level policy implications is in our view unrealistic because there will always be exceptions. The policies and guidance introduced by VC161 do not ask us to generalise in the sense that all land commanded by the modernisation system must remain sacrosanct for agriculture. If that were the case, the variability described above becomes meaningless because the protection of all agricultural land, irrespective of condition and quality, would probably consign considerable areas of the modernisation district to disuse. VC161 provides us with the criteria we need for a merits assessment of the proposed solar farm on this particular site.
245	This particular parcel is not going to be attractive for utilisation as a dairy farm because small local dairy farms don’t exist anymore. The evidence is that, should the proposed solar farm not proceed, the most likely use of the land would be as part of a larger dairy operation, although we consider this to be an unlikely outcome for the reason that the dairy industry now operates at scale that requires large scale fodder support. 
246	With regard to loss of irrigation infrastructure capacity, we agree with the applicant that if the use of Lot 2 for the purpose of a solar farm were to permanently remove the opportunity for that land to connect to the irrigation infrastructure, then an argument can be made that this application has the potential to undermine the irrigation infrastructure. Our finding is that this application doesn’t do that because there is no alteration to the irrigation infrastructure. In 30 years, when the temporary use has been concluded, the land remains available for reconnection to the irrigation system.
247	As set out in our reasons, we have concluded, on the basis of an assessment of the proposal against the particular circumstances of this site, that the proposed solar energy facility is acceptable in this location, primarily because:
•	the site is relatively small and unlikely to have utility for integration with a larger farming operation; 
•	whilst the site has cropping potential, a significant proportion of the site is compromised by the poor soils in the FO;
•	it does not permanently remove the land from agricultural production;
•	it is unlikely to jeopardise the future viability of this irrigation district;
•	the connectivity of the irrigation supply system is unaffected; and 
•	it does not limit the future investment in irrigation infrastructure.
248	For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions.

Claire Bennett
Presiding Member		Frank Dawson
Member	

Appendix A – Permit Conditions

Permit Application No	PA2000861	
Land	Naring Hall Road (Lot 2 on PS613623) NUMURKAH VIC 3636	

What the permit allowS	
Use and development of the land for a renewable energy facility (solar farm).	

Conditions
Amended Plans
1	Before development starts, amended plans must be submitted to, approved and endorsed by the Responsible Authority. When endorsed, the plans will form part of this permit. The plans must be fully dimensioned and drawn to scale. The plans must be generally in accordance with the advertised plans (Site Plan prepared by Green Gold Energy, revision L, dated 25/08/2021; Panel elevations prepared by Voyager Tracker, revision A, dated 25/08/2021; Electrical equipment elevations prepared by Green Gold Energy, revision C, dated 25/08/2021; Chain wire mesh security fence & gate fencing standard details prepared by GPA Engineering, revision 0, dated 03/04/20; Network connection elevation plan prepared by Green Gold Energy, revision C, dated 26/08/2021) but modified to show:
a	The lowest part of the panels when in the extended (vertical) position to be no lower than the 1% AEP flood level;
b	The inverter station, high voltage switchboard and site amenities and storage buildings to be at least 300 mm above the 1% AEP flood level;
c	Location of underground cabling to demonstrate that it does not result in the removal of native vegetation;
d	The colours and finishes of all buildings and works, which must be non-reflective, and matched where possible to colours present within the surrounding landscape to minimise visual impact;
e	Landscaping, in accordance with the Landscape Plan required by condition 6;
f	The risk and emergency management design features and facilities specified at Country Fire Authority conditions 24-38 inclusive;
g	Any development or design feature required to comply with any condition of this permit.
Secondary consent 
2	The use/development as shown on the endorsed plans must not be altered without the written consent of the responsible authority. 
Creation of Easement
3	Before development commences, an easement for water supply must be created over Lot 2 on Plan of Subdivision 613623U in favour of Lot 1 on Plan of Subdivision 613623U to enable Lot 1 to have the opportunity to connect to the irrigation pipe servicing Lot 2 via outlet MV6071 to the satisfaction of Goulburn-Murray Water.
Operational noise
4	The use of the land must at all times comply with the Environmental Protection Authority’s EPA Publication 1826.4 Noise limit and assessment protocol for the control of noise from commercial, industrial and trade premises and entertainment venues (the Noise Standard).
5	Within 6 months of the commencement of the use, a Post-Construction Acoustic Assessment Report must be prepared by a suitably qualified acoustic engineer and must be submitted to the Minister for Planning and Moira Shire Council.  The Acoustic Report must be made available to the public. The report must assess the compliance of the use with and, where necessary, make recommendations to limit the noise impacts in accordance with the Noise Standard. If recommendations to limit the noise impacts are made, they must be implemented to the satisfaction of the Minister for Planning and Moira Shire Council.
Landscape Plan
6	Before development starts, excluding site preparation works, a Landscape Plan must be submitted to, approved and endorsed by the responsible authority. When endorsed, the plan will form part of this permit. The plan must be fully dimensioned and drawn to a scale. 
The Landscape Plan must be generally in accordance with the advertised Landscape Plan (prepared by Chris Smith and Associates, revision 4, dated 24/08/2021) but modified to include:
a	The facility layout (including fencing) consistent with the plans submitted for endorsement under condition 1;
b	Details (including species, density, height at time of planting and maturity, and separation in both plan and elevation) of vegetation buffers that will provide screening of the facility (including barbed wire security fencing) from dwellings to the east and west, as well as users of Naring Hall Road to the south. The buffers must mature to minimum height of 3 m, and have a lifespan consistent with the expected life of the facility.
c	Details of how the ground cover under the solar panels will be maintained at a reasonable level, including during fire season(s).
d	Timing of planting.
e	Height of plants at maturity.
f	A maintenance program and the replacement of dead or diseased plants for the life of the facility.
g	Changes required to meet CFA guidelines.
7	The endorsed Landscape Plan must be implemented to the satisfaction of the responsible authority.
Traffic Management Plan
8	Before development starts, excluding site preparation works, a Traffic Management Plan must be submitted to, approved and endorsed by the responsible authority in consultation with the Moira Shire Council. When endorsed, the plan will form part of this permit.
The Traffic Management Plan must:
a	Be prepared by a suitably qualified and experienced independent civil or traffic engineer.  
b	Specify measures to be taken to appropriately eliminate, reduce or mitigate road safety hazards and traffic impacts associated with the construction and operation of the solar energy facility.
c	Identify the scheduling of all construction works.
d	Designate appropriate construction vehicle routes to the site.
e	Designate vehicle access points to the site from surrounding roads.
f	Address coordination between construction traffic and school bus travel.
g	Be approved by the relevant road management authority (or authorities) prior to submission to the responsible authority.  
9	The endorsed Traffic Management Plan must be implemented to the satisfaction of the responsible authority.
10	Any proposed alteration or modification to the endorsed Traffic Management Plan must be prepared in consultation with the relevant road management authority (or authorities) prior to submission to the responsible authority for endorsement.
Environment Management Plan
11	Before development starts, excluding site preparation works, an Environment Management Plan (EMP) must be submitted to and endorsed by the responsible authority in consultation with the Moira Shire Council. 
The EMP must include the following: 
a	Describe measures to minimise any amenity and environmental impacts of the construction, operation and decommissioning of the solar energy facility.
b	Organisational responsibilities (i.e. the persons/positions responsible for implementing the above measures) and procedures for staff training and communication. 
c	A program for weed management including the management of weeds and the ground beneath the solar panels.
d	The management of waste. 
e	The endorsed EMP must be implemented to the satisfaction of the Responsible Authority. 
Construction Environment Management Plan
12	The Environment Management Plan must include a Construction Environment Management Plan, which must include:
a	Procedures to manage noise emissions and vibration generally in accordance with the requirements of the Noise limit and assessment protocol for the control of noise Guidelines (EPA Publication 1826.4) and the Environmental Guidelines for major construction sites (EPA Publication 480).
b	Erosion and sediment control measures to ensure that no polluted and/or sediment laden run-off is discharged directly or indirectly into drains or watercourses. Straw or hay must not be used for these measures
c	Procedures to manage dust emissions to manage amenity impacts on surrounding properties.
d	Procedures and measures to identify and protect any native vegetation and fauna habitat to be retained during and post construction. These measures must include:
i.	the erection of a native vegetation protection fence around all native vegetation to be retained on site and on any adjoining road reserves; and
ii.	the tree protection zones of all native trees to be retained and this to be marked on plan(s). All tree protection zones must comply with AS 4970-2009 Protection of Trees on Development Sites;
e	Vehicle and equipment hygiene measures to prevent the spread of weeds and pathogens to and from the site. 
f	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.
g	Location of any construction wastes, equipment, machinery and/or earth storage/stockpiling during construction. 
h	Where access to the Site for construction vehicle traffic will occur. 
i	Tree protection zones.
j	The location of trenching works, boring and pits associated with the provision of services. 
k	Location of any temporary buildings or yards. 
Drainage and Stormwater Management Plan
13	The Environment Management Plan must include a Drainage and Stormwater Management Plan, which must include:
a	Details (and computations) of how the works on the land are to be drained including via existing or replacement drains conveying stormwater to the point of discharge. 
b	Details of how the drainage design allows for the continuation of existing overland flow paths across the land.
c	Assessment of impacts of the development on onsite infiltration and surface flow patterns and downstream environments, wetlands, and adjacent landholders.
Moira Shire Council
14	Prior to the construction commencing on the site, the proposed vehicle crossing points as shown on the Endorsed Plan must be constructed to an all-weather standard in accordance with Council’s Infrastructure Design Manual standards, and to the satisfaction of the Responsible Authority.
The final location of the crossings are to be approved by the Responsible Authority via a “Consent to Work within the Road Reserve”, prior to the undertaking of works.
15	Any damage to Council assets (i.e. roads, table drains etc.) must be repaired at the cost of the applicant to the satisfaction of the Responsible Authority.
16	Vehicle access and egress from the property must take place in a forward direction at all times.
17	All loading and unloading of vehicles must at all times be undertaken within the curtilage of the subject land, unless agreed otherwise by the Responsible Authority.
18	No contaminants will be permitted to enter the storm-water drainage system under any reasonably foreseeable circumstances.
19	There must not be any discharge of concentrated drainage into the adjoining road drains or culverts without the approval of the Responsible Authority.
20	The approved works must not cut off natural drainage from adjacent properties.
Goulburn Broken Catchment Management Authority
21	The finished floor level of the proposed housings of electrical equipment including switchboards, inverters, and the like, must be constructed at least 300 millimetres above the 1% AEP flood level of 108.41 metres AHD, i.e. 108.71 metres AHD.
Goulburn-Murray Water
22	All construction and ongoing activities must be in accordance with sediment control principles outlined in ‘Construction Techniques for Sediment Pollution Control’ (EPA, 1991).
23	All solar panels must be setback at least five (5) metres from any easement, freehold, or reserve boundary (including the road reserve) containing any GMW infrastructure.
Country Fire Authority
Risk Management Plan
24	A risk management plan, incorporating a risk assessment, must be submitted to the satisfaction of CFA; the plan must:
a	Identify, assess and outline controls for the management of risks at the facility, including on-site and off-site fire risks.
a	Be prepared in accordance with CFA’s Guidelines for Renewable Energy Installations.
Access
25	Roads are to:
a	Be of all-weather construction and capable of accommodating a vehicle of fifteen (15) tonnes.
b	Where roads are constructed roads, they are to be a minimum of four (4) metres in trafficable width with a four (4) metre vertical clearance for the width of the formed road surface.
c	Be of average grade no more than 1 in 7 (14.4% or 8.1°) with a maximum of no more than 1 in 5 (20% or 11.3°) for no more than fifty (50) metres.
d	Where there are dips in the road, they are to be no more than a 1 in 8 (12.5% or 7.1°) entry and exit angle.
e	Where a single point of access is proposed, a suitable turning arrangement at the end of the internal access road must be provided, such as a turning circle of 10m radius or T- turn arrangement.
f	The Roads must be constructed prior to the commencement of the use to the satisfaction of the Responsible Authority. 
26	Road networks must enable responding emergency services to access all areas of the facility.
Fuel/Vegetation Management
27	A fire break area of at least ten (10) metres width must be maintained around the perimeter of the facility, battery energy storage systems, electricity compounds and substations. This area must be mineral earth or non-combustible mulch (such as crushed rock). The fire break must:
a	At the perimeter, commence from the boundary of the facility or from the vegetation screening (landscape buffer) inside the property boundary.
b	Be constructed using either mineral earth or non-combustible mulch such as crushed rock.
c	Be free of vegetation at all times.
d	Be free of all obstructions (e.g., no stored materials of any kind) at all times.
28	Grass within the facility must be maintained at below 100 mm in height during the declared Fire Danger Period.
29	There must be a clearance of at least two (2) metres between the lowest branches and ground level within the vegetation screening (landscape buffer) zone.
30	All plant and heavy equipment must carry at least a 9-litre water stored-pressure fire extinguisher with a minimum rating of 3A, or firefighting equipment as a minimum when on-site during the Fire Danger Period.
31	Long grass and/or deep leaf litter must not be present in areas where plant and heavy equipment will be working.
Siting, Operation and Maintenance
32	The area under solar arrays must be non-combustible materials such as mineral earth; non- combustible mulch such as crushed rock; or other vegetation managed to no more than 100 mm. Managed vegetation may include localised crops of root vegetables or other plants with low flammability, planted to ensure that no part of the plant extrudes from underneath panel banks.
33	The distance of any visual screening vegetation from solar panel banks must be determined through a risk management process that considers radiant heat from a bank of solar panels fully involved in fire as an ignition source.
34	Specifications for safe operating conditions for temperature and the safety issues related to electricity generation, including isolation and shut-down procedures if solar panels are involved in fire, must be provided within the Emergency Information Book at the entrance to the facility.
35	For predominantly unoccupied facilities, appropriate monitoring for facility infrastructure must be provided, to ensure that any shorts, faults or equipment failures with the potential to ignite or propagate fire are rapidly identified and controlled, and any fire is notified to 000 immediately.
Emergency Management Plan
36	An Emergency Management Plan must be submitted to the satisfaction of CFA; the plan must:
a	Be prepared in accordance with CFA’s Guideline for Renewable Energy Installations 2019 (or as updated from time to time).
b	Incorporate a Fire Management Plan, that identifies, assesses and outlines controls for the management of fire risks, both on- and off-site, at the facility.
Provision of Emergency Information
37	An Emergency Information Container must be installed at each road entry to the site. The container must:
a	Be painted red and marked ‘EMERGENCY INFORMATION’ in white contrasting lettering not less than 25 mm high.
b	Be installed at a height of 1. 2m-1.5 m above ground level.
c	Be unobstructed and accessible with a fire brigade standard 003 key.
d	Contain emergency information for the facility, including:
i.	A description of the facility, its infrastructure and operations.
ii.	Site plans that include the layout of the entire site, including any buildings, internal roads, infrastructure, fire protection systems and equipment, dangerous goods storage areas, substations/grid connections, drains and isolation valves, neighbours and the direction of north.
iii.	Contact details for site personnel, regulatory authorities and site neighbours.
iv.	Procedures for management of emergencies, including evacuation, containment of spills and leaks, and fire procedures.
v.	A manifest of dangerous goods (if required) as per Schedule 3 of the Dangerous Goods (Storage and Handling) Regulations 2012.
vi.	Safety Data Sheets (SDS) for any dangerous goods stored on-site, including batteries.
38	An invitation is to be provided to the local CFA brigade at least annually for a site familiarisation visit, prior to October each year.
Decommissioning
39	Subject to condition 41, once the solar energy facility permanently ceases operation, all infrastructure and structures must be removed, and the site must be rehabilitated to the condition it was in prior to the start of development, to allow it to be used for agricultural purposes (or any proposed alternative use).
40	Infrastructure to be removed includes, but is not limited to, all solar panels, supporting infrastructure including foundations, substation, buildings, access tracks and above and below ground electrical infrastructure. 
41	If the landowner requests, items of infrastructure that are suitable for the ongoing agricultural use of the land (or any proposed alternative use) may be retained, subject to the approval of the responsible authority. 
42	Within two months of the solar energy facility permanently ceasing operation, a Decommissioning Management Plan prepared by a suitably qualified person must be submitted to, approved and endorsed by the responsible authority. When endorsed, the plan will form part of this permit. 
The Decommissioning Management Plan must include, as a minimum:
a	Identification of structures to be removed, and details of how infrastructure and structures will be removed. 
a	Details of how the site will be rehabilitated to meet the requirements of condition 39.
b	A requirement that all decommissioning works identified in the Decommissioning Management Plan be completed to satisfaction of the responsible authority as soon as practicable, but no later than 12 months after the Plan is endorsed, or such other period approved by the Responsible Authority.
The endorsed Decommissioning Management Plan must be implemented to the satisfaction of the responsible authority. 
Expiry
43	This permit will expire if: 
a	The development is not commenced within two years of the date of this permit;
b	The development is not completed within four years of the date of this permit; or
c	The use is not commenced within four years of the date of this permit. 
Expiry of use
44	The use must cease at the expiration of 30 years from the date of the permit. 
– End of conditions –
Appendix B – issues not contested by the minister
Flooding
The Minister accepts that the proposal is acceptable;
having regard to flood risk factors, subject to imposing relevant conditions if a permit is granted.
The condition specified by the GBCMA in the draft conditions states:
The finished floor level of the proposed housings of electrical equipment including switchboards, inverters, and the like, must be constructed at least 300 millimetres above the 1% AEP flood level of 108.41 metres AHD, i.e. 108.71 metres AHD.
Dr Jempson, in his hydrology evidence, suggests a further condition requiring;
The lowest point of the solar panels when in the extended (vertical) position should be (sic) no lower than the 1% AEP flood level. 
Bushfire
The Minister accepts the assessment in the Report that appropriate conditions can address the risk of bushfire if a permit is granted. 
Vibration
The Minister accepts the assessment in the Report that it is not expected that there will be any significant or discernible vibration impacts. 
Glint and Glare
The Minister accepts the assessment in the Report that the proposal is acceptable having regard to any glint and glare impacts based on the modelling undertaken by Environmental Ethos for the applicant as set out in its report dated October 2020. 
Light Spill
The Minister accepts the assessment in the Report that the proposal does not have any external lighting that would result in any unreasonable light spill.
Dust
The Minister accepts the assessment in the Report that the Construction Environmental Management Plan by Green Gold Energy dated 20 April 2020 will ensure that impacts are appropriately mitigated. A permit condition is required for the CEMP to be to the satisfaction of the Minister.
Electromagnetic radiation and interference
The Minister accepts the assessment in the Report that there will be no unreasonable impacts given the scale and nature of the proposal and its associated electrical equipment.
Landscape character and visual amenity values
The Minister accepts the assessment in the Report that the proposal will not have significant impacts on landscape character values or unreasonable impacts on visual amenity values noting that landscaping must be secured by appropriate permit conditions.
Heat island effect
The Minister accepts the assessment in the Report that the setbacks which provide at least 30m from the adjacent property boundaries (north – 45.1m, west – 30m, south – 30.2m and east - 64.2m) will ensure that proposal will be acceptable from a heat island effect perspective.
Flora
The Minister accepts the assessment in the Report that there be a condition demonstrating how retained vegetation will be avoided and managed including through the construction period.
Fauna
The Minister accepts the assessment in the Report that it appears unlikely that any species of conservation significance would be found the site’s highly modified landscape.
Road network impacts
The Minister notes that conditions can be imposed addressing traffic and road network impacts if a permit is granted.