Mid-West/Wheatbelt Joint Development Assessment Panel Agenda... · 2019. 3. 20. ·...

Mid-West/Wheatbelt Joint Development Assessment Panel Agenda

Meeting Date and Time: 21 December 2018, 9:30 AM Meeting Number: MWWJDAP/33 Meeting Venue: TELECONFERENCE Department of Planning, Lands and Heritage 140 William Street, Perth Attendance

DAP Members Mr Paul Kotsoglo (Presiding Member) Mr Vernon Butterly (A/Deputy Presiding Member) Mr Justin Page (A/Specialist Member) Officers in attendance Ms Jacky Jurmann (Shire of Cunderdin) – via teleconference Mr Neville Haile (Shire of Cunderdin) – via teleconference Minute Secretary Ms Andrea Dawson (DAP Secretariat) Applicants and Submitters Dr Andrew Whitehead (Sun Brilliance Power Pty Ltd) Mr Kalwant Dhillon (Sun Brilliance Power Pty Ltd) Members of the Public / Media Nil 1. Declaration of Opening

The Presiding Member declares the meeting open and acknowledges the past and present traditional owners and custodians of the land on which the meeting is being held.

2. Apologies

Ms Jacky Jurmann (Deputy Presiding Member) Mr Andrew Mack (Specialist Member) Cr Alison Harris (Local Government Member, Shire of Cunderdin)

3. Members on Leave of Absence Nil

Version: 4

https://www.dplh.wa.gov.au/about/development-assessment-panels/daps-agendas-and-minutes

4. Noting of Minutes

Signed minutes of previous meetings are available on the DAP website.

5. Declarations of Due Consideration Any member who is not familiar with the substance of any report or other information provided for consideration at the DAP meeting must declare that fact before the meeting considers the matter.

6. Disclosure of Interests

Member Item Nature of Interest Ms Jacky Jurmann 9.1 Impartiality Interest -

Ms Jurmann is contracted by the Shire of Cunderdin to provide town planning services and is the author of the RAR.

Mr Andrew Mack 9.1 Impartiality Interest – Mr Kalwant Dhillon (Sun Brilliance Power Pty Ltd) was a client of BSD Consultants and Cardno during Mr Mack’s time with these consultancies when Mr Dhillon was working for the Mindarie Regional Council. Mr Mack has not worked with Mr Dhillon since 2011.

Cr Alison Harris 9.1 Impartiality Interest - Cr Harris is related by marriage to the owner of the property that neighbours the proposed land development.

Mr Justin Page 9.1 Impartiality Interest – Mr Vernon Butterly, A/Deputy Presiding Member, is a co-worker with Mr Justin Page

7. Deputations and Presentations

7.1 Mr Ray Lehman presenting against the application at Item 9.1. The

presentation will address the draft policy on Renewable Energy Facilities, flooding, salinity and visual impacts.

7.2 Dr Andrew Whitehead (Sun Brilliance Power Pty Ltd) presenting in

support of the application at Item 9.1. The presentation will provide an update of the progress to date.

The Shire of Cunderdin may be provided with the opportunity to respond to questions of the panel, as invited by the Presiding Member.

8. Form 1 – Responsible Authority Reports – DAP Applications

Nil

Version: 4

9. Form 2 – Responsible Authority Reports – Amending or cancelling DAP

development approval 9.1 Property Location: Lot 801 Great Eastern Highway,

Cunderdin Development Description: Development of 100MW Solar Farm

Facility Proposed Amendment: Form 2.1 - Amend condition 1 which

requires the development approved to be substantially commenced within two years of the date of approval, and amend this period for development to be substantially commenced by 28 November 2020.

Applicant: Sun Brilliance Power Pty Ltd Owner: Sun Brilliance Solar One Responsible Authority: Shire of Cunderdin DAP File No: DAP/16/01112

10. Appeals to the State Administrative Tribunal

Current Applications

LG Name Property Location Application Description Shire of York

Lots 4869, 5931, 9926 and 26934 Great Southern Highway, St Ronans

Allawuna Farm Landfill

11. General Business / Meeting Closure

In accordance with Section 7.3 of the DAP Standing Orders 2017 only the Presiding Member may publicly comment on the operations or determinations of a DAP and other DAP members should not be approached to make comment.

Version: 4

Form 2 – Responsible Authority Report (Regulation 17)

Property Location: Lot 801 Great Eastern Highway, Cunderdin Development Description: Development of 100MW Solar Farm Facility Proposed Amendments: Amend condition 1 which requires the

development approved to be substantially commenced within two years of the date of approval, and amend this period for development to be substantially commenced by 28 November 2020.

DAP Name: Mid-West Wheatbelt Joint DAP Applicant: Sun Brilliance Power Pty Ltd Owner: Sun Brilliance Solar One Pty Ltd Value of Amendment: $160 million LG Reference: DA 2016/17-6(A1) Responsible Authority: Shire of Cunderdin Authorising Officer: CEO, Shire of Cunderdin DAP File No: DAP/16/01112 Report Date: 7 December 2018 Application Received Date: 1 November 2018

(JDAP Deferral 6 December 2018) Application Process Days: 7 days Attachment(s): 1: Previous Determination Notice

2: Council Report & Resolution 3: Original Applicant’s Submission 4: Post-Deferral Applicant’s Submission

Officer Recommendation: That the Mid-West/Wheatbelt Joint Development Assessment Panel resolves to: 1. Accept that the DAP Application reference 16/01112 as detailed on the DAP

Form 2 dated 30 October 2018 is appropriate for consideration in accordance with regulation 17 of the Planning and Development (Development Assessment Panels) Regulations 2011;

2. Approve the DAP Application reference 16/01112 as detailed on the DAP

Form 2 date 30 October 2018 in accordance with regulation 17(4) of the Planning and Development (Development Assessment Panels) Regulations 2011 and clause 68 of Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015, for the proposed minor amendment to the approved development of a 100MW Solar Farm and associated infrastructure and animal grazing at Lot 801 Great Eastern Highway, Cunderdin, subject to:

Amended Conditions 1. This decision constitutes development approval only and is valid for a period

of 4 years from the date of the original determination (i.e. 28 November 2016).

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If the subject development is not substantially commenced within the 4 year period, the approval shall lapse and be of no further effect.

Additional Advice Note: 8. In regards to condition 14, it is the developer will contain the additional

stormwater created as a result of the development on-site and that any changes to the natural flow of water across the site are managed to ensure downstream properties are not adversely impacted.

All other conditions and requirements detailed on the previous approval dated 28 November 2016 shall remain unless altered by this application. Details: outline of development application Insert Zoning MRS: N/a TPS: General Agriculture Insert Use Class: Use Not Listed Insert Strategy Policy: N/a Insert Development Scheme: N/a Insert Lot Size: 165.43 hectares Insert Existing Land Use: Farming (cropping & grazing) The Mid-West/Wheatbelt Joint Development Assessment Panel conditionally approved on 28 November 2016 the construction of a 100MW Solar Photovoltaic Power Plant on the subject property known as ‘Creswick’. The Applicant estimated at the time of application that the farm would contain approximately 330,000 solar panels covering 140 hectares of the 165.43 hectare property. A sub-station will also be constructed to connect into Western Power’s grid located 2.5 kilometres south of the property. Condition 1 of the development approval provided 2 years from the date of determination for substantially commencement, which resulted in the approval lapsing on 28 November 2018. A Form 2 application was submitted by the Applicant on 1 November 2018 to amend condition 1 to extend the substantial commencement period for a further 2 years (i.e. a total of 4 years). The Mid-West/Wheatbelt Joint Development Assessment Panel considered the application at a meeting held on 6 December 2018 and resolved to defer the application to enable additional time to consider the implications of:

• The WAPC’s draft Position Statement on Renewable Energy Facilities (May 2018);

• Drainage and flooding; • Visual impacts; and • The recent State Administrative Tribunal’s decision in the case of “A.M.I

Enterprises Pty Ltd and Presiding Member of the Mid-West/Wheatbelt Joint Development Assessment Panel [2018] WASAT 130”.

Background:

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The subject property is located east of the Cunderdin townsite and contains a number of structures, including two dwellings, sheds and farm infrastructure that have been used in conjunction with traditional broad-hectare cropping and grazing activities. Refer to Figure 1. A Western Power easement is located across the front portion of the property, which is part of the Cunderdin-Kellerberrin transmission line. Western Power has been consulted and details of their response are included in the Schedule of Submissions. In 2013, a smaller 5MW solar farm proposal occupying 10-15 hectares of the subject site was granted conditional approval by the Shire, which did not proceed and the approval subsequently lapsed.

Figure 1 - Location Plan

Cunderdin townsite

Subject site

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Figure 2 - Site Northbound

Figure 3 - Site Southbound Legislation and Policy: Legislation Planning and Development Act 2005

• Part 5 of the Act provides a statutory head of power for the Shire of Cunderdin to prepare, adopt and implement a local planning scheme.

• Part 14 of the Act provides a right of review by the State Administrative Tribunal If an applicant or owner is aggrieved by the determination of their development application. An application for review must be made within 28 days of the determination.

Planning and Development Regulations 2009

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• Part 7 of the Regulations enables local government to charge specified fees for planning services, including development applications. Fees have been charged in accordance with the Regulations.

Planning and Development (Development Assessment Panels) Regulations 2011

• The value of the development exceeded $10 million and was therefore a ‘mandatory’ DAP application that was determined by the Mid-West/Wheatbelt Joint Development Assessment Panel.

• The Form 2 application has been submitted under the provisions of regulation 17 as a minor amendment to request an extension of time by amending condition 1 of the development currently approved by the DAP to be amended.

Planning and Development (Local Planning Schemes) Regulations 2015

• Schedule 2 of the Regulations contained the ‘deemed provisions’, including Parts 7, 8 and 9 apply to applications for development approval, which have been considered in the assessment of this application as detailed in the Assessment section of this Report.

Shire of Cunderdin Local Planning Scheme No. 3 (LPS3)

• The subject property is zoned General Agriculture under the provisions of LPS3.

• The development of the land for the purposes of a Solar Farm Facility is not specifically listed in the zoning table or defined in the Scheme.

• Council at its Ordinary Meeting held on 15 September 2016 resolved to assess the application in accordance with the provisions of clause 3.4.2(b) of LPS3.

Main Roads Act 1930

• The Great Eastern Highway is a road under the control of Main Roads and as such were consulted during the assessment of the original application.

Legislation Planning and Development Act 2005

• Part 5 of the Act provides a statutory head of power for the Shire of Cunderdin to prepare, adopt and implement a local planning scheme.

• Part 14 of the Act provides a right of review by the State Administrative Tribunal If an applicant or owner is aggrieved by the determination of their development application. An application for review must be made within 28 days of the determination.

Planning and Development (Development Assessment Panels) Regulations 2011

• The value specified in the original application exceeded $10 million and was therefore a ‘mandatory’ DAP application determined by the Mid-West/Wheatbelt Joint Development Assessment Panel.

• Regulation 17 provides for the amendment or cancellation of an application determined by a DAP.

Planning and Development (Local Planning Schemes) Regulations 2015

• Schedule 2 of the Regulations contained the ‘deemed provisions’, including Parts 7, 8 and 9 that apply to applications for development approval, which have been

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considered in the assessment of this application as detailed in the Assessment section of this Report.

Shire of Cunderdin Local Planning Scheme No. 3 (LPS3)

• The subject property is zoned General Agriculture under the provisions of LPS3. The proposed use of the land for the purposes of a Solar Farm Facility is not specifically listed in the zoning table or defined in the Scheme.

• A Report was presented to Council at its Ordinary Meeting held on 15 September 2016 to consider the provisions of clause 3.4.2 of LPS3. It was resolved, as recommended by the Officer, to assess the application in accordance with the provisions of clause 3.4.2(b), that is, the use may be consistent with the zone objectives. A copy of the Report is provided at Attachment 4.

• The Planning Assessment section of this Report provides a detailed assessment of the relevant provisions of LPS3.

Main Roads Act 1930

• The Great Eastern Highway is a road under the control of Main Roads and accordingly Main Roads were invited to comment on the proposal.

State Government Policies State Planning Policy No. 1 – State Planning Framework

• SPP1 sets out the general principles for land use planning and development in the State and aims to provide a framework to provide for the sustainable use and development of land. The Framework is supported by five principles, which are: 1. Environment: To protect and enhance the key natural and cultural assets of

the State and deliver to all West Australians a high quality of life which is based on environmentally sustainable principles.

2. Community: To respond to social changes and facilitate the creation of vibrant, safe and self-reliant communities.

3. Economy: To actively assist in the creation of regional wealth, support the development of new industries and encourage economic activity in accordance with sustainable development principles.

4. Infrastructure: To facilitate strategic development by making provision for efficient and equitable transport and public utilities.

5. Regional Development: To assist the development of regional Western Australia by taking account of the special assets and accommodating the individual requirements of each region.

State Planning Policy No. 2.5 – Land Use Planning in Rural Areas

• SPP2.5 provides guidance to consider the need to provide economic opportunities for rural communities and to protect the State’s primary production and natural resource assets. The Policy provides the framework for the WAPC to promote rural zones in schemes as highly flexible zones that cater for a wide range of rural land uses supporting primary production and value adding, small-scale tourism, environmental protection and biodiversity conservation; together with considering the differing needs of the various regions and regional variations.

State Planning Policy 3.7 – Planning in Bushfire Prone Areas

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• The site is not identified as bushfire prone and therefore the provisions of this policy are not applicable to the development proposal.

• It is worthwhile noting, however, that local fire break requirements are applicable. State Sustainability Strategy (2003)

• The Strategy establishes a sustainability framework containing principles, visions, and goals. It seeks to ensure that sustainability is considered and incorporated into decisions and actions for the future of Western Australia at all levels.

Wheatbelt Regional Planning and Infrastructure Framework

• The Framework provides an overview of regional planning issues and a basis for ongoing planning and development.

• It is acknowledged that the region offers an abundant source of renewable energy due to the climatic and geographic conditions, which area conducive to alternative energy generation such as wind, solar, geothermal and biomass generation.

Draft Position Statement on Renewable Energy Facilities (May 2018)

• The Western Australian Planning Commission (WAPC) has released a draft position statement on renewable energy facilities for public comment.

• The draft statement outlines key planning and environmental considerations for the location, siting and design of renewable energy facilities to facilitate appropriate development of renewable energy facilities while minimising any potential impact upon the environment and valued landscapes.

• The responsible officer from the Department of Planning, Lands and Heritage has advised that a report will be presented to the WAPC’s Statutory Planning Committee in January 2019 for adoption of a modified version of the statement as policy. The proposed modifications intend to provide a greater degree of flexibility in the application of the policy. The officer has also advised that it is not intended that the policy will require readvertising as a result of the proposed modifications, and therefore could be considered to be a ‘seriously entertained planning proposal’.

• As a result of the advice from the DPLH, the applicable provisions of the DPS have been considered as follows:

o Environmental Impact – there is no significant clearing proposed resulting in significant impacts on flora and fauna, rare endangered or threatened communities. Additionally, the Applicant has advised that the tree removal proposed does not require Clearing Permits.

o Visual and Landscape Impact – the original assessment of the application included consideration of the visual impacts on the highway and neighbouring properties. Setbacks and relocation of the sub-station were required to address the issue together with the submission of a Landscaping Plan. Conditions 3, 4 and 5 of the approval relate. the Applicant submits in relation to this issue the following information:

“Although the draft position statement on renewable energy facilities was only released in May 2018, Sun Brilliance Cunderdin Solar Farm Pty Ltd had previously selected the site on the basis of its low visual and landscape impact:

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- The land for the development is farm land – substantially flat and cleared with no significant vegetation.

- There is to be no significant cut and fill nor change to the topography.

- The land consists of single-storey structures (i.e. residential house and sheds) that are likely to be used for office and storage.

- The town of Cunderdin is approximately 2 kms from the property.

- Trees line the fence boundary adjacent to the Great Eastern Highway and further trees will be planted along the boundary fence where appropriate.

- Max panel height will depend on final piling specs, but at this stage approx. 2.5m at 60deg tilt or 1.5m at 0deg tilt.”

Figure 4 - Looking east along Fiegert Rd (photo provided by Applicant) o Noise Impact – the original assessment of the application did not identify

any noise emissions that are expected to impact any neighbouring properties, other than during the construction stage (see comments below).

o Construction Impact – condition 6 requires the submission of a Construction Management Plan prior to the commencement of any works to manage any impacts on the locality during the construction stage.

o Public and Aviation Safety – the original assessment of the application did not raise any public or aviation safety issues. Main Roads, CASA and Air Services Australia were consulted and raised no objections to the proposal.

o Cultural Heritage – the original assessment of the application did not identify any cultural heritage issues. The Applicant proposes to retain the original and current farmhouse and ancillary structures to become part of future stages.

o Community Consultation – the original application was advertised to the community in the local newspaper, newsletter, notice boards and the Shire

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website for a period of thirty (30) days. Letters were also sent directly to neighbouring and nearby landowners. Four (4) submissions were received. In addition, relevant State government agencies were given the opportunity to provide comments on the development proposal during the public consultation period. Five (5) agencies responded.

• The proposed development is consistent with the provisions of the draft position statement and introduction of the policy would not result in a change to the planning framework that affects the ability to approve the development today.

Local Policies Cunderdin Local Planning Strategy The LPS was adopted in 2007 and aims to provide a framework for strategic planning in the Shire. In regards to rural land, the LPS aims to protect agricultural land, promote sustainability and encourage diversity, including tourism uses to reduce reliance on agriculture as the primary industry. Draft Shires of Cunderdin, Quairading & Tammin Regional Local Planning Strategy & Draft Shire of Cunderdin Local Planning Scheme No. 4 Council resolved to prepare and adopt for advertising purposes the draft RLPS and draft LPS4 on 23 October 2018. Although the documents have not been advertised and therefore not considered to be ‘seriously entertained planning documents’, it is worth noting that the proposed solar farm is consistent with the aims an objectives of these documents, and would not affect its approval now. Cunderdin Strategic Community Plan The aim of the Plan is to manage growth sustainably through governance, leadership and targeted service and economic growth by adopting specific goals, including – maintaining and enhancing the area’s infrastructure; and strengthening local business and employment capacity. The Plan also aims to position the Shire as a regional strategic location and transport hub Consultation: Public Consultation The original application was advertising in accordance with the provisions of the Planning and Development (Local Planning Schemes) Regulations 2015. The issues raised in the submissions were considered in the original assessment and determination of the application. Consultation with other Agencies or Consultants The original application was referred to the relevant agencies and no objections were raised. It is understood that the Applicant has been liaising with the relevant agencies to implement the project. Planning Assessment: Request to Amend Condition 1 Condition 1 states that:

“This decision constitutes planning approval only and is valid for a period of 2 years from the date of approval. If the subject development is not substantially commenced within the 2 year period, the approval shall lapse and be of no further effect.”

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The Applicant has requested that the period of validity of approval be extended for a further two years from 28 November 2018 to 28 November 2020. DAP Practice Note provides guidance when considering Form 2, Regulation 17, Minor Amendment Applications as follows:

“Where a Form 2 application is made in accordance with r.17(1)(a) ‘to amend the approval so as to extend the period within which any development approved must be substantially commenced’ the relevant planning considerations should include:

• Whether the planning framework has changed substantially since the development was granted;

• Whether the development would likely receive approval now; and

• Whether the holder of the development approval has actively and relatively conscientiously pursued the implementation of the development approval.”

The following comments are made with respect to the matters identified above:

• Planning framework o As outlined earlier in this Report, the WAPC have released their draft

Position Statement on Renewable Energy Facilities, which could be considered as a ‘seriously entertained planning document’ and could be deemed to be a change in the planning framework that must be considered in determining the subject application. The applicable provisions have been assessed and with regards to the visual assessment, it is considered that the existing conditions satisfactory address the concerns raised in the community submissions.

o There have been no changes to the local planning framework since approval of the application. Council at its meeting held on 23 October 2018 resolved to prepare a new local planning scheme, however there are no changes to the zoning or other provisions that affect the property.

• Would approval be granted now Having regard to: o The comments that have been made immediately above; o The lack of major change to the planning framework since approval was

first granted; and o there being no changes to the proposed development, the proposal would

receive the same Officer recommendation today (approval) as it did when the application was originally determined.

• Implementation of the DA The Applicant has provided the following information (attached to this Report) to demonstrate implementation of the DA:

“Sun Brilliance Power Pty Ltd has actively and conscientiously pursued implementation of the development under the approved development term. However, third party processes, discussions and negotiations have taken considerably more time than expected delaying development, financing, procurement, construction, commissioning and operations.

As a result, Sun Brilliance Power Pty Ltd is now requesting to extend the approval term to the 28 November 2020.

Progress to date: • Environmental studies and heritage clearances have been obtained. • Preliminary Geotechnical studies have been completed.

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• Owners Engineers have developed and completed the Concept Design and Specifications for the Plant, Current and Voltage Transformers as well as identification of Medium Voltage Transformers that will meet the Solar Farm’s specifications.

• Owners Engineers have undertaken and completed 22 kV single Line Diagrams and HV Single Line Diagrams which were submitted to Western Power (WP) with the Access application and were approved by WP.

• Independent Engineers have undertaken and completed the environmental and technical due diligence for the Facility and Functional Technical Specifications for an EPC contract.

• Selection process of EPC contractor has been finalised and an ASX listed EPC has been selected as the preferred contractor.

• Early works which includes detailed Geotech studies, hydro studies, survey, Solar Farm design and engineering etc is currently being undertaken by the EPC.

• Electricity Transfer Access Contract, Interconnection Works Agreement and an Asset Purchase Agreement have been executed with Western Power – all agreements with Western Power are now in place.

Sun Brilliance Power Pty Ltd is totally committed to the implementation of the 100MW Solar Farm development and are progressing as quickly as practically possible.”

Officer Comments Legal precedence The JDAP in its reasons for deferral also proposed to consider the implications of the recent SAT Decision in the case of “A.M.I Enterprises Pty Ltd and Presiding Member of the Mid-West/Wheatbelt Joint Development Assessment Panel [2018] WASAT 130”. The following comments are made relative to the subject application taking into consideration this case:

• Has the planning framework changed substantially since the development approval was granted? o As outlined earlier in this Report, the planning framework has not

substantially changed since the development approval was granted.

• Is the development likely to receive approval now? o As outlined earlier in this Report, there are no reasons why the

development wouldn’t receive approval now.

• Have the holders of the consent actively and relatively conscientiously pursued implementation of the development approval? o Applicant’s submission regarding this question:

“As in the recent SAT decision on the AMI Enterprises Pty Ltd & Anor v the Mid-West/Wheatbelt JDAP where consideration was given in favour of approval of the extension application on the basis that Mr Chester and AMI had actively and conscientiously pursued implementation of the development approval, Sun Brilliance Cunderdin Solar Farm Pty Ltd also have been totally committed to this project and been actively and conscientiously pursuing the implementation of the development approval where construction is expected to begin in the first quarter of 2019. Progress to date includes:

- Secured the Access Approval from Western Power to connect to the Grid which involved submitting the application for connection to the Grid including Design and Engineering, conduct and

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completion of detailed testing by Western Power, negotiation of 3 contracts (Electricity Transfer Access Contract, Asset Purchase Agreement and Interconnection Works Contract) and the final signing of the contracts.

- Registration with Australian Energy Market Operator (AEMO) as a generator and on the Wholesale Electricity Market (WEM) as part of this process.

- Selection and appointment of Corporate Advisors (KPMG) to assist in securing the investor and financiers.

- Selection and appointment of independent experts (i.e. legal, independent engineers, etc.) in support of the project.

- Selections and finalisation of the EPC supplier. - Securing Purchase Power Agreements (PPA) with customers for

the Power and Large Generation Certificates (LGCs). - Securing the Investor and financing for the project in conjunction

with KPMG. - Conduct of early Due Diligence Work by independent engineers

and preparation of specifications for the EPC work. - Conduct of Early works by the EPC on site. - Negotiation and finalisation of the EPC contract with the EPC

supplier currently in progress for construction to commence in first quarter of 2019. Not only has significant time and effort been expended to reach this stage but significant monies have also been expended.

We appreciate JDAP support in securing the extension as Sun Brilliance Power is heavily committed, dedicated, passionate and working diligently to roll-out this project on the ground commencing January 2019.” (Refer to the Confidential Attachment.)

• Has the landowner sought to 'warehouse' the development approval? o The Applicant purchased the land for the specific purpose of the

proposed development and as demonstrated in their actions to pursue implementation of the development approval described above, the Applicant has not sought to ‘warehouse’ the approval.

• Was the two-year period for substantial commencement originally imposed adequate?

o Applicant’s submission regarding this question: “At the time Sun Brilliance Cunderdin Solar Farm Pty Ltd gained development approval (November 2016), the two-year period for substantial commencement was adequate in the circumstances existing at the time when development approval was granted. However, circumstances changed significantly, through no fault of Sun Brilliance Cunderdin Solar Farm Pty Ltd, where grid access approval including the detailed testing and contract negotiations with Western Power and contract negotiations with third parties (i.e. finance, engineering, and offtake agreements) have taken considerably more time than anticipated, with the consequence that the period originally imposed was inadequate for substantial commencement to take place.”

• Is the length of time sought for substantial commencement excessive? As indicated in this report, the application to amend condition 1 to extend the period for substantial commencement from 2 years to 4 years is consistent with a number of recent JDAP approvals, including:

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o Shire of Merredin solar photovoltaic facility approval for 4 years [DAP/17/01195, MWW JDAP 18]

o Shire of Northam solar photovoltaic facility approval for 4 years [DAP/17/01197, MWW JDAP 18]

o Shire of Dandaragan solar photovoltaic facility approval for 5 years [DAP/16/01072, MWW JDAP 10]

o City of Greater Geraldton solar photovoltaic facility approval for 5 years [DAP/16/01055, MWW JDAP 8]

Drainage & Flooding During the presentations by community members at the recent meeting of the JDAP considering this Form 2 application concerns were raised regarding the impacts of the proposed development on local flooding and drainage, and consequently was an issue included in the reasons for deferral requiring additional information. There is no flooding data available from the Department of Water for the Shire of Cunderdin, notwithstanding this and as a result of the initial assessment of the application with a view to ensuring that there was no adverse impacts on the locality, including neighbouring properties, resulting from any stormwater runoff from the development, condition 15 was imposed on the approval stipulating: “All stormwater to be contained on the subject site to the satisfaction of the local government.” The Applicant in response to these concerns have advised: “Shire of Cunderdin had made an independent assessment of the drainage as part of the Development Approval application in 2016 and the Shire was comfortable that there were no issues in this respect. Furthermore, as part of the design and engineering, the selected Engineering, Procurement and Construction (EPC) supplier has confirmed that they are incorporating hydraulic works, and the stormwater drainage design is to be very minimalistic and the general site drainage philosophy is as follows:

• Maintain the existing drainage flow paths to the maximum allowable extent. • Minimise disturbance to the existing ground to maintain existing overland

sheet flow paths and to minimise erosion and sediment control issues. • Where possible there will be no introduction of new open channel drainage /

roadside table drains to minimise channelisation and to encourage surface sheet runoff flow to continue.

• This also allows ease of vehicular access throughout site without having to cross open drains.

• Any proposed internal roads will be set at or at about ground level to maintain surface topography.

• Elevated bench for infrastructure (i.e. substation) taking into consideration freeboard height.

• Based on previous similar solar farm projects it is assumed that the inclusion of Photovoltaic panels will only marginally increase the post-development runoff (say less than 2%) so it is not expected that any mitigation measures are warranted.”

Options/Alternatives:

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The JDAP may determine the application in accordance with the provisions of r.17(4) by approving, with or without conditions, or by refusing. Council Recommendation: Council considered the proposed amendment at its Ordinary Meeting held on 15 November 2018. The Report and Resolution of Council are attached to this RAR. Note: Council has not reconsidered the application following the JDAP’s deferral. Conclusion: It is recommended that:

1. Condition 1 be modified for the reasons identified within the body of this report to so as to now read: “This decision constitutes development approval only and is valid for a period of 4 years from the date of the original date of determination (i.e. 28 November 2016). If the subject development is not substantially commenced within the 4 year period, the approval shall lapse and be of no further effect.”

2. An additional Advice Note (No. 8) be include to clarify the intent of condition 14 as follows: “In regards to condition 14, it is the developer will contain the additional stormwater created as a result of the development on-site and that any changes to the natural flow of water across the site are managed to ensure downstream properties are not adversely impacted.”

3. All other conditions and requirements detailed within the previous approval dated 28 November 2016 shall remain unless altered by this application.

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Postal address: Locked Bag 2506 Perth WA Street address: 140 William Street Perth WA 6000 Tel: (08) 6551 9919 Fax: (08) 6551 9961 TTY: 6551 9007 Infoline: 1800 626 477

[email protected] www.planning.wa.gov.au ABN 35 482 341 493

LG Ref: DA2016/17-6 DoP Ref: DAP/16/01112

Mr Kalwant Dhillon Sun Brilliance Power Pty Ltd Unit 2, 6 Merino Entrance, Cockburn Central WA 6164 Dear Mr Dhillon Mid-West/Wheatbelt JDAP – Shire of Cunderdin – DAP Application DA2016/17-6 Determination Lot 801 Great Eastern Highway, Cunderdin Development of 100MW Solar Farm Facility Thank you for your application and plans submitted to the Shire of Cunderdin on 8 September 2016 for the above development at the abovementioned site. This application was considered by the Mid-West/Wheatbelt Joint Development Assessment Panel at its meeting held on 28 November 2016, where in accordance with the provisions of the Shire of Cunderdin Local Planning Scheme No. 3, it was resolved to approve the application as per the attached notice of determination. Should the applicant not be satisfied by this decision, a DAP Form 2 application may be made to amend or cancel this planning approval in accordance with regulation 17 of the Planning and Development (Development Assessment Panels) Regulations 2011. Please also be advised that there is a right of review by the State Administrative Tribunal in accordance with Part 14 of the Planning and Development Act 2005. Such an application must be made within 28 days of the determination, in accordance with the State Administrative Tribunal Act 2004. Should you have any queries with respect to the conditions of approval, please contact Ms Jacky Jurmann on behalf of the Shire of Cunderdin on (08) 9635 2700 or 0448 009 037. Yours sincerely,

Michelle Tan DAP Secretariat

06/12/2016

Encl. DAP Determination Notice

Approved plans

Cc: Ms Jacky Jurmann Shire of Cunderdin PO Box 100 CUNDERDIN WA 6407

of 3

Planning and Development Act 2005

Shire of Cunderdin Local Planning Scheme No. 3

Mid-West/Wheatbelt Joint Development Assessment Panel

Determination on Development Assessment Panel Application for Planning Approval

Location: Lot 801 Great Eastern Highway, Cunderdin Description of proposed Development: Development of 100MW Solar Farm Facility In accordance with regulation 8 of the Planning and Development (Development Assessment Panels) Regulations 2011, the above application for planning approval was granted on 28 November 2016, subject to the following: Approve the development of a 100MW Solar Farm and associated infrastructure and animal grazing at Lot 801 Great Eastern Highway, Cunderdin as proposed in the DAP Application reference DAP/16/01112 and accompanying plan (Figures 1 and 2) dated 8 September 2016, in accordance with the Shire of Cunderdin Local Planning Scheme 3 subject to the following conditions: Conditions 1. This decision constitutes planning approval only and is valid for a period of 2

years from the date of approval. If the subject development is not substantially commenced within the 2 year period, the approval shall lapse and be of no further effect.

2. This approval does not include the ancillary tourism component of the

development detailed in Figure 3. 3. The siting of the solar panels and ancillary infrastructure shall be a minimum of

20 metres from the property’s road boundaries and the top of the bank of the creek running through the site, 10 metres from all remaining property boundaries and not encroach into Western Power’s power line easement.

4. The sub-station shall be constructed on-site a minimum of 200 metres from the

nearest existing residence. An amended site plan, drawn to scale, shall be submitted prior to commencement of construction of the sub-station demonstrating compliance with this requirement.

5. Prior to the commencement of works, a Landscaping Plan shall be submitted to

the local government for approval detailing landscaping and fencing to be provided along the perimeter of the subject site sufficient to provide a visual buffer to motorists and nearby properties. Following approval, the Applicant must implement and maintain the measures described in the Landscaping Plan.

6. Prior to the commencement of any works, a Construction Management Plan

shall be submitted to the local government for approval detailing;

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a. the management of construction noise, dust, light spill, working hours, waste disposal and other activities to minimise the impacts on the locality;

b. MRWA approval for the delivery of all construction materials with all vehicles entering and exiting the site from Great Eastern Highway

c. any potential staging of the development; d. the management of farming operations during the construction period; and e. any potential impacts that the development may have upon Fiergert Road,

the measures to be taken by the Applicant to minimise those impacts upon other road users and the measures to repair any damage caused to the local government’s infrastructure.

Following approval, the Applicant must implement and monitor the measures described in the Construction Management Plan.

7. Prior to the commencement of any works, the Applicant shall submit for the

approval of the local government, a Traffic Impact Assessment and a Traffic Management Plan prepared by a suitably qualified person, in conjunction with Main Roads WA, to define the necessary improvements and management arrangements that will be required to accommodate the anticipated vehicle movements triggered by the development.

8. With the exception of a compound immediately surrounding the sub-station, all

fencing on the site shall be of permeable chain mesh or a rural post and wire construction to the satisfaction of the local government.

9. The Applicant shall:

a. minimise the off-site visual impacts of the development, including the potential for any glare or reflection from the solar panels;

b. ensure the visual appearance of all ancillary infrastructure (including paint colours) blends in as far as possible with the surrounding landscape; and

c. not mount any advertising signs or logos on site, except where this is required for safety purposes, unless with approval from the local government.

10. The Applicant shall comply with Australian Standard AS4282 (1997) – Control

of the Obtrusive Effects of Outdoor Lighting.

11. All solar panels and ancillary infrastructure must be decommissioned and removed within 2 years of the cessation of operations, unless the local government agrees otherwise, and the Applicant shall rehabilitate the site to the satisfaction of the local government to enable broad-hectare or other approved farming activities to resume/continue.

12. All electrical distribution and reticulation cabling associated with the approved development on the subject land shall be placed underground.

13. Prior to the commencement of development the applicant is to submit a Fire

and Emergency Management Plan to the local government for approval and shall at all times thereafter ensure the implementation of the approved Fire and Emergency Management Plan.

14. All stormwater is to be contained on the subject site to the satisfaction of the

local government.

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Advice Notes 1. Where an approval has so lapsed, no development shall be carried out without

the further approval of the local government having first been sought and obtained. The Applicant is reminded of Regulation 17 of the Planning and Development (Development Assessment Panels) Regulations 2011 which amongst other things allow for the JDAP to extend the term of planning approval.

2. If an applicant or owner is aggrieved by this determination there is a right of

review by the State Administrative Tribunal in accordance with the Planning and Development Act 2005 Part 14. An application must be made within 28 days of the determination.

3. Prior to commencement of the development hereby determined, a Building

Permit or Demolition Permit may be required in accordance with the provisions of the Building Act 2011.

4. An application for a crossover or any works on the footpath/verge area will be

required prior to carrying out any works. The applicant should liaise with the Shire’s Works Manager.

5. The Applicant is responsible for all costs associated with any required road

upgrades, including design and approvals. 6. The applicant is encouraged to negotiate with Western Power to have the

reticulation cabling, running within Fiegert Road to connect the approved development with Western Power’s 132KV line, placed underground.

7. The Applicant is reminded of the requirements of the Environmental Protection

(Noise) Regulations 1997. Where an approval has so lapsed, no development shall be carried out without further approval having first been sought and obtained, unless the applicant has applied and obtained Development Assessment Panel approval to extend the approval term under regulation 17(1)(a) of the Planning and Development (Development Assessment Panels) Regulations 2011.

Figure 1 – Location Plan

DEVELOPMENT ASSESSMENT PANELS APPROVED 28 NOVEMBER 2016

Figure 2 – Site Plan

DEVELOPMENT ASSESSMENT PANELS APPROVED 28 NOVEMBER 2016

SUN BRILLIANCE POWER PTY LTD ACN 604 987 715

29 Floor, 221 St Georges Terrace, Perth

Sun Brilliance Power Pty Ltd: – DAP/16/01112 – Request to Extend Approval Term 1

Professor Ray Wills Chair and Partner Sun Brilliance Power Pty Ltd Level 29, 221 St Georges Terrace, Perth, WA 6000 LG Ref: DA2016/17-6 DoP Ref: DAP/16/01112 Government of Western Australia Development Assessment Panels 140 William Street, Perth, WA 6000 30 October 2018 To whom it may concern

Mid-West/Wheatbelt JDAP – Shire of Cunderdin – DAP/16/01112 – Request to Extend Approval Term

Sun Brilliance Power Pty Ltd (SBP) would like to request an extension on the approved term for the development of the 100MW Solar Farm from 28 November 2018 to 28 November 2020 under regulation 17(1)(a) of the Planning and Development (Development Assessment Panels) Regulations 2011. The planning framework of the 100MW Solar Farm development has not changed since it was approved. Sun Brilliance Power Pty Ltd has actively and conscientiously pursued implementation of the development under the approved development term. However, third party processes, discussions and negotiations have taken considerably more time than expected delaying development, financing, procurement, construction, commissioning and operations. As a result, Sun Brilliance Power Pty Ltd is now requesting to extend the approval term to the 28 November 2020. Progress to date:

• Environmental studies and heritage clearances have been obtained. • Preliminary Geotechnical studies have been completed. • Owners Engineers have developed and completed the Concept Design and Specifications for

the Plant, Current and Voltage Transformers as well as identification of Medium Voltage Transformers that will meet the Solar Farm’s specifications.

• Owners Engineers have undertaken and completed 22 kV single Line Diagrams and HV Single Line Diagrams which were submitted to Western Power (WP) with the Access application and were approved by WP.

• Independent Engineers have undertaken and completed the environmental and technical due diligence for the Facility and Functional Technical Specifications for an EPC contract.

• Selection process of EPC contractor has been finalised and an ASX listed EPC has been selected as the preferred contractor.

o Early works which includes detailed Geotech studies, hydro studies, survey, Solar Farm design and engineering etc is currently being undertaken by the EPC.



Sun Brilliance Power Pty Ltd: – DAP/16/01112 – Request to Extend Approval Term 2

• Electricity Transfer Access Contract, Interconnection Works Agreement and an Asset Purchase Agreement have been executed with Western Power – all agreements with Western Power are now in place.

Sun Brilliance Power Pty Ltd is totally committed to the implementation of the 100MW Solar Farm development and are progressing as quickly as practically possible.

Yours sincerely

Professor Ray Wills Chair and Partner Sun Brilliance Power Pty Ltd



Sun Brilliance Power Pty Ltd: – DAP/16/01112 – Request to Extend Approval Term

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Professor Ray Wills Chair and Partner Sun Brilliance Power Pty Ltd Level 29, 221 St Georges Terrace, Perth, WA 6000 LG Ref: DA2016/17-6 DoP Ref: DAP/16/01112 Government of Western Australia Development Assessment Panels 140 William Street, Perth, WA 6000

10 December 2018 To whom it may concern Mid-West/Wheatbelt JDAP – Shire of Cunderdin – DAP/16/01112 – Request to Extend Approval Term – Information Response Sun Brilliance Cunderdin Solar Farm Pty Ltd requests that the consideration of DAP Form 2 application DAP/16/01112 be considered on the 20th December 2018 and not deferred until the 23 January 2019. In response to the DAP’s consideration of the implications of the draft position statement on renewable energy facilities (May 2018), Sun Brilliance Cunderdin Solar Farm Pty Ltd provides the following information: Drainage Shire of Cunderdin had made an independent assessment of the drainage as part of the Development Approval application in 2016 and the Shire was comfortable that there were no issues in this respect. Furthermore, as part of the design and engineering, the selected Engineering, Procurement and Construction (EPC) supplier has confirmed that they are incorporating hydraulic works, and the stormwater drainage design is to be very minimalistic and the general site drainage philosophy is as follows:

• Maintain the existing drainage flow paths to the maximum allowable extent. • Minimise disturbance to the existing ground to maintain existing overland sheet flow paths

and to minimise erosion and sediment control issues. • Where possible there will be no introduction of new open channel drainage / roadside table

drains to minimise channelisation and to encourage surface sheet runoff flow to continue. This also allows ease of vehicular access throughout site without having to cross open drains.

• Any proposed internal roads will be set at or at about ground level to maintain surface topography.

• Elevated bench for infrastructure (i.e. substation) taking into consideration freeboard height




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• Based on previous similar solar farm projects it is assumed that the inclusion of Photovoltaic panels will only marginally increase the post-development runoff (say less than 2%) so it is not expected that any mitigation measures are warranted.

Visual Assessment Although the draft position statement on renewable energy facilities was only released in May 2018, Sun Brilliance Cunderdin Solar Farm Pty Ltd had previously selected the site on the basis of its low visual and landscape impact:

• The land for the development is farm land – substantially flat and cleared with no significant vegetation.

• There is to be no significant cut and fill nor change to the topography. • The land consists of single story structures (i.e. residential house and sheds) that are likely to

be used for office and storage. • The town of Cunderdin is approximately 2 kms from the property. • Trees line the fence boundary adjacent to the Great Eastern Highway and further trees will

be planted along the boundary fence where appropriate. • Max panel height will depend on final piling specs, but at this stage approx. 2.5m at 60deg

tilt or 1.5m at 0deg tilt.

The recent SAT decision on the AMI Enterprises Pty Ltd & Anor v the Mid-West/Wheatbelt JDAP.

At the time Sun Brilliance Cunderdin Solar Farm Pty Ltd gained development approval (November 2016), the two-year period for substantial commencement was adequate in the circumstances existing at the time when development approval was granted. However, circumstances changed significantly, through no fault of Sun Brilliance Cunderdin Solar Farm Pty Ltd, where grid access approval including the detailed testing and contract negotiations with Western Power and contract negotiations with third parties (i.e. finance, engineering, and offtake agreements) have taken considerably more time than anticipated, with the consequence that the period originally imposed was inadequate for substantial commencement to take place.

As in the recent SAT decision on the AMI Enterprises Pty Ltd & Anor v the Mid-West/Wheatbelt JDAP where consideration was given in favour of approval of the extension application on the basis that Mr Chester and AMI had actively and conscientiously pursued implementation of the development approval, Sun Brilliance Cunderdin Solar Farm Pty Ltd also have been totally committed to this project and been actively and conscientiously pursuing the implementation of the development approval where construction is expected to begin in the first quarter of 2019. Progress to date includes:

• Secured the Access Approval from Western Power to connect to the Grid which involved submitting the application for connection to the Grid including Design and Engineering, conduct and completion of detailed testing by Western Power, negotiation of 3 contracts (Electricity Transfer Access Contract, Asset Purchase Agreement and Interconnection Works Contract) and the final signing of the contracts.

• Registration with Australian Energy Market Operator (AEMO) as a generator and on the Wholesale Electricity Market (WEM) as part of this process.

• Selection and appointment of Corporate Advisors (KPMG) to assist in securing the investor and financiers.




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• Selection and appointment of independent experts (i.e. legal, independent engineers, etc.) in support of the project.

• Selections and finalisation of the EPC supplier. • Securing Purchase Power Agreements (PPA) with customers for the Power and Large

Generation Certificates (LGCs). • Securing the Investor and financing for the project in conjunction with KPMG. • Conduct of early Due Diligence Work by independent engineers and preparation of

specifications for the EPC work. • Conduct of Early works by the EPC on site. • Negotiation and finalisation of the EPC contract with the EPC supplier currently in progress

for construction to commence in first quarter of 2019.

Not only has significant time and effort been expended to reach this stage but significant monies have also been expended. We appreciate JDAP support in securing the extension as Sun Brilliance Power is heavily committed, dedicated, passionate and working diligently to roll-out this project on the ground commencing January 2019.

Yours sincerely

Professor Ray Wills Chair and Partner Sun Brilliance Power Pty Ltd

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