Warden rejects objections to wind turbine infrastructure applications

In Alinta Energy Clean Energy Development Pty Ltd v Pilbara Energy (Generation) Pty Ltd [2024] WAMW 30 Warden McPhee declined to grant a series of applications for an extension of time by Alinta Energy Clean Energy Development Pty Ltd (Alinta) to object to Pilbara Energy Pty Ltd’s (Pilbara Energy) applications for Miscellaneous Licences.

Background

Alinta sought to contest Pilbara Energy’s licence applications for wind turbine infrastructure development on the basis that the proximity of Pilbara’s turbines would reduce Alinta’s wind energy production capabilities. Alinta requested a 7-day extension to submit their objections.

Warden McPhee found that the following 4 issues required determination:

1. Whether a party with an incomplete tenement application can assert injurious affection under s 117(2) of the Mining Act 1978 (WA) (Act)in respect of another party’s incomplete tenement application.
2. Whether Alinta’s applications were sufficiently connected to mining for purposes of s91(6) of that Act, to enable them to be considered a possible source of rights and interests, so as to ground an objection on statutory injurious affection or other detriment.
3. What the relevant factors for considering Extension Applications are; and
4. In the circumstances, whether the Extension Applications are reasonable.

Issue 1

The Court determined that the protection afforded by s117 of the Act is restricted to the holders of mining tenements which are valid and operational at the relevant point in time. As Alinta did not meet these requirements, it could not object based on s117 of the Act.

Issue 2

The Warden determined that s91(6) requires an evidentiary basis to establish the purpose of the grant is directly connected to mining. The Court referred to Mineralogy Pty Ltd v the Honourable Warden K Tavener [2014] WASC 420, where the Court explained that S91(6) does not require that the holder of the miscellaneous licence be itself directly involved in mining or mining operations.

Further, the Warden did not accept Pilbara Energy’s argument that “directly connected to mining” can only be proved by reference to established identified binding contractual obligations. The Warden explained that the existence of binding contractual obligations may make it easier to establish direct involvement in mining operations, but it is not the only way the connection may be proved.

The Court determined Alinta had provided evidence to show a sufficiently direct connection to mining for purposes of s 91(6) of the Act. In turn, Alinta was entitled to rely on any general detriment established by evidence, to object to the applications.

Issue 3 and 4

Alinta’s evidence was provided by an affidavit from Mr. Rogers, a solicitor, which claimed that the proximity of Pilbara Energys wind turbines would disrupt Alinta’s wind energy production capabilities.

The Warden found that the affidavit consisted of “opinions and predictions” rather than factual statements, emphasizing that Mr. Rogers lacked the necessary expertise to determine the detrimental impact of Pilbara Energy’s activities on Alinta’s infrastructure. Consequently, the Warden declined to accept Mr. Rogers’ testimony on technical matters.

As a result, the Warden concluded that no arguable ground of objection was raised. In turn, it could not be established that the application for an extension of time was reasonable, as there was no evidence that Alinta had any rights affected by the grounds it sought to utilize.

Commentary

The case provides clarification regarding the requirements to rely upon s117 and s91(6) of the Act. The protection in s117 of the Act is limited to the holders of mining tenements which are valid and operational at the relevant point in time and s91(6) of the Act requires only a sufficiently direct connection to mining for purposes of the Act.