VCAT approves energy project (Dual Gas Pty Ltd v EPA)

In Dual Gas Pty Ltd & Ors v EPA (Red Dot) [2012] VCAT 308, the Tribunal has considered an application concerning new technology for the generation of electricity in the La Trobe Valley.

A number of different proceedings were heard and determined concurrently by the Tribunal.

In its reasons for decision the Tribunal considers the question of “standing” of environmental groups. Not all parties to the proceeding were granted standing.

Dual Gas Pty Ltd was an applicant in its own proceeding seeking to review conditions on an approval granted by the EPA. In its reasons for decision the Tribunal made the following comments

21. “We have come to a decision that the objectors’ applications for review fail. In particular, within the limited grounds of review available to them:

  • the objectors have failed to establish that the use of the works for the DGDP that are the subject of the EPA works approval will result in emissions that will be inconsistent with the SEPP(AQM). The DGDP complies with the requirement for ‘best practice’, and is not inconsistent with the aims, principles or intent of the SEPP(AQM);
  • by reference to the narrow interpretation of ‘interests’ in relevant case law, Mr Shield’s additional ground under s 33B(2)(a) is struck out.

22. We have also come to a decision that the Dual Gas application for review succeeds, but only in part. In particular:

  • the EPA has misapplied the principles of environmental protection and best practice under the SEPP(AQM) in seeking to halve the capacity of the DGDP. Although not leading to an inconsistency with the SEPP(AQM), a halving of capacity still leads to a material increase in GHG emissions;
  • in allowing a works approval for the DGDP with a capacity of 600 MWe, effect can be given to the principles of environmental protection under the SEPP(AQM) by imposing an additional condition that effectively prevents the DGDP from commencing until the retirement of an equivalent amount of higher GEI generation capacity in Victoria is secured. Although such a condition was opposed by Dual Gas, through the condition the DGDP will more demonstrably lead to a nett reduction in overall GHG emissions from electricity generation in Victoria, and more clearly facilitate the transition to a lower emissions energy sector.
  • although opposed by Dual Gas, a condition requiring the works to be designed to operate at a GEI of 0.8 t CO2-e/MWh should remain, with the GEI to be measured ‘as generated’;
  • although opposed by Dual Gas, the conditions for SO2 capture and noise attenuation should remain, subject to varied wording.

23. Although not determinative, the additional condition linking the DGDP approval to the retirement of an equivalent amount of higher GEI electricity generation also addresses many of the underlying concerns of objectors, save for those based on a philosophical opposition to the continued use of brown coal. Even if, contrary to our actual finding, we had found that the DGDP was inconsistent with the SEPP(AQM), we consider that inconsistency could have been resolved by still allowing the DGDP with a 600 MWe capacity with this condition

24. This summary of conclusions should not be considered a substitute for the more detailed findings and conclusions set out in these reasons.”

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