The continuing legal fallout over the Gullen Range wind farm is shaping up as a "colossal mess," says one observer.
NSW Landscape Guardians chairman and Parkesbourne landowner David Brooks simply hopes the case is thrown out of court.
Developer New Gullen Wind Farm is challenging Planning Minister Pru Goward over the NSW Planning and Assessment Commission's (PAC) refusal last October of a modified development application. The DA sought to confirm the location of 69 turbines, previously found by the Department to have been incorrectly placed.
The 73-turbine project is located 25 kilometres northwest of Goulburn.
The case has already had one directions hearing in the court. It has been stood over until March 16.
The company is challenging the process the PAC applied to arrive at its decision rather than its merits. It has argued that a modified DA was never needed and the Department's original approval always allowed for flexibility in the turbines' location.
Mr Brooks has been keenly observing the lengthy battles.
He said the Department - and therefore Ms Goward - had taken three different positions on the wind farm, which would be difficult to defend.
Firstly, the Department recommended conditional approval of the turbine changes to the PAC. In turn, this body refused the DA but along the way, the Department had recommended that just nine turbines be moved.
"So if it all goes to court, which position will she defend?" Mr Brooks asked.
"The whole thing is a colossal mess."
Complicating matters is the Department's oversight role earlier in the development. The company appointed an independent environmental monitor to oversee turbine placement and report to government planners. However, the Landscape Guardians alleged he had a conflict of interest as director of a consultancy firm that worked on the wind farm.
A Department spokesman told the Goulburn Post that this person was employed by a consultant and not by the government.
"[He] was not involved with the design, construction or operation of the project, having worked as a consultant preparing the environmental assessment for the application.
"Appointing [him] as the project's environmental representative is in line with the project's approval conditions and the Department's procedures at the time.
"The Department has since improved requirements further to require wind farm consultants have an even greater level of independence."
Adding to an "invidious" position, the Department allowed turbine construction to continue for a year after residents alerted it to their "incorrect" placement, Mr Brooks said.
"My [legal] advice is that the Minister will be obliged to defend the [Land and Environment Court] action seriously because her authority is at stake," he told the Post.
"I hope the court throws it out, but that would throw up the situation where the PAC has rejected it, and we still have a wind farm of 69 turbines that are not in their approved locations. What happens next?"
A Department spokesman said the appeal was not about the merits of the modification, such as whether any turbines should be moved, but the process the PAC followed to make its decision.
"If the appeal is successful, then the modification application will need to be re-determined: at this stage the merits will be considered again," he said.
"It would be highly unusual for a court to require new evidence from any party regarding an appeal of this nature," he said.
Late last year, Mr Brooks lodged a complaint with the NSW Ombudsman about the Department's handling of the project.
The Ombudsman was currently investigating, he said.
He's not stopping there. Mr Brooks is also writing a submission for a Senate select committee's inquiry into governance and the economic impact of wind turbines. He is not only highlighting the Gullen Range wind farm and the Department's "incompetence" but the fact the developer collected renewable energy certificates, despite alleged "noncompliance" with state and federal regulations, as required.
Meantime, the Landscape Guardians will not participate in the latest court battle. However, Mr Brooks said he'd be keenly watching proceedings.