Somewhere near Portland a solar array with the capacity to supply 10 residential houses sits unused, generating no power.
The man who built it, Portland resident David Millmore, has been locked in a stalemate with Lithgow City Council after they took him to court over the solar array and lost. He is now trying to recoup $85,000 in legal costs from the council.
Both parties have so far not been able to come to an agreement.
Where it started
About 12 months ago, Mr Millmore decided to build a 100 kilowatt solar array on land he owns on Range Road near Portland.
After conducting research, Mr Millmore found his solar array would need a complying development certificate.
A complying development certificate (CDC) is a combined planning and construction approval process. It is designed to fast-track approval of straightforward developments instead of putting them through the usual development application (DA) process. A CDC can be attained from either local councils or through a private certifier.
According to state government legislation, the Infrastructure State Planning Policy (ISEPP) states that small solar arrays sized from 0-10 kilowatts are exempt developments, those sized over 10 and up to 100 kilowatts require a CDC, while anything over 100 kilowatts must go through a DA process.
Mr Millmore obtained a CDC from a private certifier and had almost completed construction of his solar array when he was contacted by Lithgow City Council.
Council steps in
The council said its attention was drawn to the solar development after a complaint from a nearby resident that it was an "eyesore".
"The land on which the solar array was installed is zoned R5 and electricity-generating works are prohibited on R5 land under the Lithgow LEP 2014," the council said in a written statement.
Land with an R5 zoning is classified as residential.
The council said it was concerned that while the solar array was permitted by the Infrastructure SEPP, it wasn't permitted by the Lithgow LEP 2014, and that despite this, the development could avoid the DA process by receiving CDC approval from a private certifier.
'Five million dollar fine'
On July 26, 2019, Mr Millmore received a letter from the council's solicitors threatening a $5m fine if he didn't lodge a development application.
Mr Millmore said he "rang many local councils in NSW" to find out what approval method they required.
The answer was overwhelmingly a "complying development certificate".
Mr Millmore went back to Lithgow City Council.
"We had already paid for a complying development certificate, those are not free, so we had already paid for approval," Mr Millmore said.
"So ... I questioned why do we need to pay for a second approval - which I would've had no problem with if that was what everyone had done in this area - but there was no response given to us about why we would have to be the ones to get the second approval for the same development."
In its written statement, the council said it regarded the wording of the Infrastructure SEPP as ambiguous and sought clarification from the Department of Planning.
The council said it was concerned the CDC application process lacked transparency.
"(Putting the development through the DA process) was seen as a sensible solution and it was pointed out that this solution would circumvent risks associated with litigation, including costs. The company refused to do so," the council statement said.
"(The) council considered that the development application process provided the opportunity for public notification and comment, which had been absent under the CDC process undertaken here.
"It considered the DA process to be a more transparent one which included consultation with nearby affected landholders and the preparation of a publicly available assessment report."
Mr Millmore goes to court
The case of NewEra Defendo v Lithgow City Council was heard in the Land and Environment Court in Sydney on November 12, 2019.
A ruling in favour of Mr Millmore was handed down a week after the start of proceedings and the council was ordered to pay Mr Millmore's costs.
"The summons was dismissed and we didn't even get a ruling on it as such," he said.
"The Honorable Justice Tim Moore ruled on the fact that the legislation has to be read at face value and dismissed the summons, so it really didn't need to be before the court at all."
As part of the ruling the judge stated that costs agreed or assessed would have to be paid to Mr Millmore.
The council said it respectfully accepted the appropriateness of the costs order foreshadowed in the judgement.
Mr Millmore said his only legal advice after the matter was dealt with, as the matter was not sub judice, was to speak to councillors and council management to negotiate a fair and just amount of costs.
For Mr Millmore, that was 85 per cent of the costs, which came in at approximately $85,000.
We were about $100,000 worth of legal fees into this, we were happy to walk away $15,000 out of pocket to be right. To have not done anything wrong.David Millmore
"To have a complying development done with the right approval and still be out of pocket $15,000, which is about double what the DA would have cost if we had originally put in the DA."
That offer has now timed out, but Mr Millmore said he remained open to discussion regarding costs.
"[The] council came back with an offer, which was 0.50 cents of the dollar, since they believed a genuine legal question needed to be answered before the court, but the court didn't answer any legal question, they dismissed the matter," he said.
"We didn't do anything wrong along the way so to imply we should be out of pocket $45,000-$50,000 to do nothing wrong is a question that should be asked."
The council said that the company indicated to the court that it wished to seek an indemnity costs order.
"An indemnity costs order would ordinarily entitle the company to a higher proportion of its costs than the order foreshadowed by the court," the statement read.
"[The] council does not consider that the proceedings that it brought had no chance of success nor that they were an abuse of process. For that reason, [the] council is opposed to the indemnity order sought."
Mr Millmore said he had asked the council to review its decision on multiple occasions to no avail.
"Before the trial we were told by our legal counsel to speak with councillors afterwards so we can get some answers on why they were taking us to court and the costs, but when we saw them after the ruling, we still hit roadblocks in being able to get answers," he said.
"Considering the insulting level of costs put forward by council, I was forced to spend more money in an indemnity costs order enforced by the court, and although this is an extremely difficult thing to do, we have been forced into this decision because of council's unwillingness to pay the required level of costs."
The judge did not rule to have an indemnity costs order on the matter, thus keeping the order as agreed or assessed.
Mr Millmore is yet to decide if he will reapply for an indemnity costs order by appealing that decision.
"Because of council's unwillingness to discuss the costs we are no closer to an agreement on costs," he said.
Mr Millmore said that his actual development which cost him around $150,000 is sitting on the ground doing nothing.
"All up we are probably over $300,000 into this project with legal fees included and we still have yet to get any government subsidy back from this project because we can't connect it to the grid since it is on hold with everything happening," he said.
If the solar panels were hooked up, Mr Millmore said he would be selling power into the system, making around $25,000 a year. This is another source of income lost due to the court case.
"This is a good development for the town especially with the region's unemployment issues. This will help bring renewable energy projects to town and it is such a positive," he said.
"To be hard-lined like this, our only option was to go to court and defend our action of building solar panels on land we are allowed to [do so].
"How we let this get to the level where it was taken to court, I will never know."
Change in legislation
Since the conclusion of the matter and in part due to the ruling, the Department of Planning has changed the infrastructure Planning Policy so that any solar array under 100 kilowatts, as long as they comply with manufacturers specifications, do not require any approval from council or private certifiers.