Sunday, February 16, 2025

Transmission lines – “Don’t think, do!” – More on the landholders’ fight

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Peter Hobbs, The Buloke Times

My previous article, “Call a Spud a Spud” was inspired by Jim “Spud” Hepworth’s candid opinion on the installation of transmission lines on farming property.

This article which is intended to be a follow-up and one motivated by Charltonian Glenda Watts’s Letter to the Editor in the November 22, 2024, edition of this tabloid [The Buloke Times].

Glenda’s message is simple but significant in the process developed by the Victorian Government underpinning the construction of transmission lines in rural Victoria.

She identifies specific instances of the blatant lack of the two-way communication between Transmission Company Victoria (TCV) and the community which is a supposed hallmark of TCV as detailed in their 2024 Fact Sheet “Preferred Easement: Landholder Next Steps”, of which there are seven and which are intended to be the panacea for the successful implementation for the transmission lines installation. It is subtitled, “My property is in the preferred easement — what happens now?”

Shortcomings

What follows is a dissection of these seven steps outlining their shortcomings. It is appreciated that the vast majority of landholders do not want the matter to reach this point but it is imperative for such an analysis because the shortcomings identified can and should be used in defence of the transmission lines being installed. This analysis is detailed but is followed by further suggested action to prevent this raping of agricultural land and, if this is not immediately possible, putting the misconceived project on permanent hold.

Step 1: Landholders Discuss Preferred Easement dictates that TCV’s team of dedicated Landholder Liaisons ensures landholders have the opportunity to discuss what the preferred easement means for them and to answer any questions they may have. TCV claim to recognise that easements have direct impacts on people and families and therefore should give of time to listen and assess all the information available to them especially that information provided by landholders.

Tick in box

That is not supported by Glenda, who states, “Another TCV Drop-In Session, another tick in the TCV’s consultation box and just another waste of time with immeasurable frustration for the local communities and their farmers” and “I attended the Zoom CRC (sic) (Zoom Conference Room Connector) meeting the previous evening. It was another successful ticking the box exercise for TCV and yes, another complete waste of time for most others in attendance” and “It was blatently obvious at the CRC meeting that they had no desire to show any interest whatsoever in the map showing 140kms of shoulder to shoulder opposition to the transmission towers.”

Towers

Barry Batters, a farmer from Sutherland north of St Arnaud, has four towers designated for his property and six further towers on a leased property. Says Barry, “We’ve tried in good faith over the past 18 months to try to talk to Transmission Company Victoria, the Australian Energy Market Operator (AEMO) and VicGrid trying to work through the issues, but to this day they still haven’t answered one question we’ve asked them. I’ve been farming here for over 50 years and I’ve never seen the community torn apart so much. They’ve treated farmers with contempt – 99 per cent of people are dead against the project.”

Katherine Myers is a potato grower at Tourello near Ballarat and her property is in the corridor of the Western Renewables link. She said she felt “numb” over the decision. “It kind of implies the government doesn’t have to follow the rules. Why do they bother with the pretence of community consultation? Why not just show up with concrete trucks?”

Failure

These are but three examples of how the consultation process highlighted by TCV has been an abject failure.

The Independent Federal Member for Indi, in Victoria’s north-east, Dr Helen Haines, has stated “silencing communities is terrible governance.”

To address the concerns of rural communities about renewable energy infrastructure projects, Dr Haines and Independent Senator for the ACT David Pockock worked with Federal Minister for Climate Change and Energy, Chris Bowen, to establish an independent review into community engagement.

The Australian Energy Infrastructure Commissioner’s (AEIC) independent Community Engagement Review (the Review) sought input from landholders and community members living close to renewable energy transition developments. Indeed it claims to have identified opportunities to ensure community participation. Ms Haines, stated: “The Community Engagement Review final report was clear – the state and federal governments must improve community engagement and consultation.”

In her letter to the Victorian Minister for Energy and Resources, Lily D’Ambrosia, and Minister for Planning, Sonya Kilkenny, Dr Haines expressed concern that there are not enough safeguards to ensure communities are heard and their issues acted upon by developers.

“In my letter to state ministers, I asked how the Victorian Government will act to implement the recommendations of the review to ensure community engagement and community benefit are delivered for the communities in Indi impacted by renewable energy projects. The Federal Government needs to put money behind the recommendations in the Review and work with the states to legislate best practice community engagement for the energy transition.”

It should be noted that the Australian Government accepted in full or in principle all recommendations from the Review.

Failures

Dr Haines has pinpointed how both the Victorian Government and the Federal Government have failed farmers by reneging on their word for proper consultation.

This review made sweeping recommendations to improve engagement with renewable energy infrastructure developments, one of which was to “… improve complaint handling processes.”

Wow! Within a month, the Victorian Government legislated to remove the right for third parties to appeal renewable energy planning decisions through VCAT. Helen Haines immediately wrote to the Victorian Government expressing her dismay with this decision and correctly stated that

“The decision to remove the right to appeal to VCAT is contrary to the recommendations of the Review’s final report”.

On the one hand, at a federal level the AEIC recommends with full Australian Government approval that in regard to renewable energy infrastructure, the complaints handling processes should be improved, then in the blink of an eye, the Victorian Government bans appeals against renewable energy planning decisions through VCAT.

Action has also been a’plenty in the Victorian Parliament. The Nationals Member for Shepparton District and former Mayor of Greater Shepparton, Kim O’Keeffe, raised her major concerns in Parliament about the removal of the planning panel process, including the removal of third-party appeals to VCAT for renewable energy projects.

“This government is taking away the rights of regional communities, and there has been an outcry from landowners to remove the right to challenge or appeal transmission infrastructure in VCAT,” she said.

This is a blatant attempt by the Allan Labor Government to silence regional voices in favour of big renewable energy companies. The premier has failed to introduce renewable energy projects that communities want so instead her own government are silencing their voices and will be forcing unwanted projects.

“Attorney General Jaclyn Symes, when questioned in Parliament, failed to respond to the decision to strip VCAT from the renewables appeal process, handballing the matter to the Agriculture Minister Ros Spence, from whom we now await a response. The

Nationals will continue to fight for answers, given that affected primary producers will now have to take their grievances to the far more expensive Supreme Court.”

Step 2: Landholders Provide Feedback is equally flawed. This step purports to provide landholders with the opportunity to provide feedback on infrastructure placement and construction management which will be considered by project engineers. This assumes landholders have the necessary expertise to comment on these issues which would be merely considered but not necessarily implemented.

Step 3: Independent Valuations is where this matter becomes really grubby. This step is intended for landholders to receive a fair and reasonable offer of compensation. An initial compensation assessment will be calculated by a qualified valuer in line with the Land Acquisition and Compensation Act 1986 (Vic) and the Valuation of Land Act 1960 (Vic). It is interesting to note that these Acts have apparently escaped the attention of all relevant parties.

The pivotal part of the 1986 Act is section 41, General Principles on which Compensation is Based and this, generally speaking, lists the considerations I identified in my “Call a Spud a Spud” article except for one major addition, that being outlined in Section 44 of the Act, Solatium. Paragraph 1 of this Section states “The amount of compensation may be increased by such amount, not exceeding 10% of the market value of the land, by way of solatium as is reasonable to compensate the claimant for intangible and non-pecuniary disadvantages resulting from the acquisition.”

Compensation

Solatium is compensation given as solace for suffering, loss, or injured feelings. If a property is valued at $2,000,000, for example, solatium of $200,000 could be payable.

The 1960 Act states at Section 5A, Determining Value of Land that when determining the value of the land, “the use to which such land is being put at the relevant time, the highest and best use to which the land might reasonably be expected to be put at the relevant time and to any potential use….” should be taken into account. If I was involved in contributing to the process of valuing land which is an integral part of Step 3, as Fabian, the 1960s rock sensation would say, “turn me loose.”

Notwithstanding the intricacies of compensation, Section 22 of the 1960 Act, Application to VCAT for Review captured my attention. Paragraph 1 states: “An objector who is dissatisfied with the decision of a valuer or the valuer-general on the objection may apply to VCAT for review of the decision.” WOW! This means farmers cannot appeal to VCAT in regard to a decision to take their land but they can appeal to VCAT if dissatisfied with the valuation of their financial loss as a result of this land being purloined. This inconsistency I believe could be used to challenge the Victorian Government’s decision to ban land acquisition appeals to VCAT.

The law can be used to “buy” time and make things difficult for a party being challenged. Section 23 of the 1960 Act, Appeal to the Supreme Court, may well come into play. Paragraph 1 states, “The president of VCAT, on his or her own initiative or on the application of a party, may refer a matter that is the subject of an application under Section 22 to the Supreme Court to be treated as an appeal to the Supreme Court if the President is satisfied that the matter raises questions of unusual difficulty or of general importance.”

And cost? Referring to the 1986 Act Section 41, paragraph 1 (f), compensation assessment must include “… any legal, valuation and other professional expenses necessarily incurred by the claimant by reason of the acquisition …”

Step 4: Compensation is, to quote Ebenezer Scrooge, “humbug”. At this point, farmers will receive an Option for Easement Proposal which will include the compensation amount for the easement as assessed by the valuer. If the farmers agree to all of this and sign what TCV call “associated documentation” they will receive an option sign-on fee. Oh no! It will be the farmer who will submit to TCV their total compensation claim and if TCV do not agree, off we go to VCAT and then most probably to the Supreme Court.

Steps 5, 6 and 7 should never occur or already have occurred. Step 5, Planning for Construction Developed in Consultation with Landholders should have been undertaken at Steps 1 and 2. Step 6, Professional Advice for Landholders, such as valuation, accounting and legal advice all at the expense of TCV will also have been undertaken and Step 7, Option for Easement Finalised Before Construction will never occur because this is the step which indicates everything is A-okay. If this step was to be observed, it is noted that the first compensation payment of 80% only would be made when the option exercise notice is provided to the landholder; the remaining payment would be made when the easement has been registered on the title of the property. Everything is not A-okay, because Section 51 (xxxi) of the Australian Constitution would have been breached in that the “just terms” provision would not have been observed as farmers would have been offered unjust compensation.

The 2024 TCV Fact Sheet provides some additional mystifying information. For example, “Machinery up to 5m high will be able to operate under the new VNI (Victoria to NSW Interconnector) transmission lines, and taller machinery up to 8.6m may also be used subject to a safety assessment” and “Once tower designs for the VNI West project have been finalised, further information will be made available to landholders in relation to separation distances relevant to a specific property.” Yet again, non-committal and indefinite statements which are in defiance of Steps 1, 2 and 5 of the Fact Sheet call into question the veracity of not just the Fact Sheet but the entire project.

Compare this with “Concerns about the potential health effects of Electro Magnetic Fields (EMF) expressed by residents throughout the region which helped inform adoption of a 300-metre buffer from all residences to alleviate this concern.”

And yet TCV claim it is okay for farmers to work directly under the transmission lines with a John Deere S680 Combine Harvester which is conveniently 5 metres in height.

I additionally note that “Discussions with stakeholders including local Councils, communities and Traditional Owners commenced during the early stages of project development.” It may be pertinent to enquire at this stage what the outcomes from discussions with the Buloke Shire Council were, that is if there were discussions and if these have been documented by this Council in a report or communicated to residents of the Buloke Shire.

To simplify this matter is beyond the intellectual or literary skills of this author but what follows is his best attempt.

Two options

It is clear that farmers have two options. The first is to attempt to put an end to the proposal to take from them parcels of their land for the construction of transmission lines and the second is to put this project on permanent hold. To put an end to this outrageous matter is clearly the prime objective of, as Barry Batters puts it, 99% of people, farmers and non-farmers alike.

Appeals

The fight to put an end to this proposal can be fought on two fronts, state and federal. The state level fight should come first. I have demonstrated how attempts in the Victorian State Parliament to review the removal of third-party appeals to VCAT have been met with prevarication and evasion.

An appeal to VCAT remains a solid option for a starting point which would be rejected. As Kim O’Keeffe, inter alios, has correctly concluded, the next step is the Victorian Supreme Court which is Victoria’s highest court. The court is divided into the Trial Division which hears serious criminal cases and the Court of Appeal which hears appeals from civil cases and appeals from VCAT. Notwithstanding the Victorian Government’s ban on appeals to VCAT, an appeal to VCAT may well be in order so as to receive a verdict denying the right to appeal so this verdict can be used in an appeal to the Supreme Court.

Two issues

Two issues need to be addressed if an appeal to the Supreme Court is pursued the cost and what matters at law can be relied upon.

Appellate attorneys are expensive and can charge between $500 and $800 an hour but costs can be redeemable.

Supreme Court costs are divided into Standard Fee Payers which means in essence a natural person, Concession Fee Payers which means a person holding a current health care card and Corporate Fee Payers which means an entity other than the previous two. An appeal should be made in the name of one farmer with, of course, a level of support which results in zero personal cost and preferably by one who holds a concessional health care card for the following examples of financial reasons.

Court of Appeal Fees – Corporate, Standard, Concession: Commencement of Appeal – $4,997.40, $2,488.70, $338.00. Each Day of a Hearing – $1,843.70, $921.00, $338.00.

Rather than bewail the cost of an appeal to the Supreme Court, fee exemptions should be considered.

Order 23(2) of the Charter of Human Rights and Responsibilities Act 2006 in Victoria allows for a referral to the Supreme Court and no fee is payable. This Charter protects and legally recognises many human rights in Victoria especially civil and political rights. Public authorities must observe those rights. New policies and legislation must take into account human rights.

The Charter places responsibilities on the three areas of government: parliament, courts and tribunals and public authorities.

One would commence by demanding to know if the following Charter Obligations were observed. First, when introducing new laws into Victoria’s Parliament, a Statement of Compatibility must be tabled in parliament indicating how the proposed law is compatible with the rights set out in the Charter. I have not been able to find such a Statement. Second, the Scrutiny of Acts and Regulations Committee reviews Bills and statutory rules and reports to parliament as to whether they are compatible with human rights. I have not been able to locate such a Review. This is not to say that the relevant Statement and Review does exist but my attempts have been unsuccessful.

Protection

Section 20 of the Charter protects a person’s right to not be deprived of their property and this right applies where property is acquired or seized under civil law, where a public authority has a right to access a property and where planning laws restrict the use of property.

As a corollary to the state level fight, if there is a belief that human rights have been breached and there is a damned good case to say they are, the Victorian Ombudsman can be contacted with a view to an appeal.

The Supreme Court has the power to declare that a law is inconsistent with human rights but does not have the power to strike it down, but the Court would have the power to strike down a law if it could be demonstrated procedural justice had not been observed… and it can. Procedural justice relies on four principles: being fair in processes, being transparent in actions, providing opportunity for voice and being impartial in decision making. One does not have to be a close relative of Einstein to see that all four principles have not been observed in denying farmers the right to appeal to VCAT which makes an appeal to the Supreme Court all the more viable.

Appeals at the federal level I covered in my “Call a Spud a Spud” article and they relied on Section 51 (xxxi) of the Australian Constitution and the “just terms” provision. I stand by my take on how a case can be mounted at this level.

On hold

The second option is to put the project on permanent hold and the best two ways to do this is, first, to engage in a drawn-out legal battle and second for as many affected farmers lodging exorbitant but justifiable compensation claims as outlined in my previous article.

I now wish to go one step further and attempt to quantify such claims and stand to be corrected as all farms are different and one year can be totally different to ensuing years both of which affect such quantification. The following should not be judged on the figures used but on the methods employed to calculate compensation and individual farmers can, if they can see merit in so doing, apply their own figures to the following compensation types.

Market value of land being acquired

If we assume the easement being acquired is 70 metres wide but due to concerns about the potential health effects of Electro Magnetic Fields (EMF) expressed by residents throughout the region a 300-metre buffer zone from all residences to alleviate this concern was adopted which could reasonably be applied to farmers working their land. For this area of compensation, I will settle for a 100 metre no-go zone which translates into the area being acquired. One hectare is equal to 10,000 square metres and if it is assumed that transmission towers are to be built on a property using 500 metres of easement in length 50,000 square metres or 5 hectares will be lost to the farmer’s title. It is understood that land prices vary. A 14.97 hectare block of land on the St Arnaud – Wycheproof Road is selling for $270,000 or $18,036 per hectare. I understand land in the Donald, Watchem, Birchip area can also sell for this price but I appreciate this is probably top dollar. The compensation cost using these figures would be $90,180.

Dimunition of the value of the land

I take an example of a 1000 hectare or 2600 acre farm. If 5 hectares are lost, 5 per cent of the land is lost, which translates into a financial loss or compensable amount of $901,800 using the figures quoted above.

Loss of Value of Crops. Calculations can be made on the premium return of a premium crop. As of 29 November 2024, the daily price of canola was $743 per tonne in Melbourne and Geelong. If we assume a yield of 2.5 tonnes per hectare, the annual compensation due on these figures would be $9,288 per annum based on the above quoted figures for the duration of the existence of the transmission towers or if the relevant authorities agree make one immediate payment of a mutually acceptable amount for the next 75 years, the anticipated life of these towers. This figure should be compared with a compensable amount for a reduction in carrying capacity if, say sheep or cattle were being grazed.

Relocation and inconvenience

The maximum amount of $75,000 should be claimed.

Loss of income during the construction process

Let it be assumed that a farmer cannot work 25 per cent of his land during the construction of transmission lines which is an annual loss of 25 per cent of income as land needs to be worked for the entire year. If the farmer’s annual income was $1,500,000, the loss or compensable amount would be $375,000.

Reimbursement of legal, accounting and valuer costs

This depends on the scale of these services but is a compensable cost only for what has been expended and therefore cannot be included as an “in-the-hand” compensation.

Solatium

A claim of 10 per cent of the market value of the land can be made which in this example would amount to $1,803,600.

Simple message

Legendary 1960s Hawthorn coach, John Kennedy Snr. once addressed his players at half-time when the Hawks were just on 7 goals down and he had a very simple message: “Don’t think, do!” What he meant was you need to do something different because what we are doing at the moment is not working and thinking is not the answer. Hawthorn won the game by a little over 3 goals.

I believe this analogy is appropriate to the vexed question of the most appropriate action to take in this matter. I further believe I have provided a number of options that can be followed but someone or somebody needs to do something about it.

Protesters have diligently and successfully protested, parliamentarians have eloquently spoken at federal and state levels, farming federations have lent their support and community members have forthrightly and unashamedly written about their concerns. These have collectively brought this matter to the attention of Australia and set the foundations for legal action. It is the affected farmers, the backbone of this country, who have grabbed my heartfelt attention and it is for this reason I believe action will be most effective if it is an affected farmer who instigates action by appealing to VCAT about the acquisition of land to construct transmission towers and then following on to higher levels by further appeal once this appeal is rejected.

This is a huge ask for an individual but if such a person could be identified or come forward, reassurance and all forms of tangible support would be forthcoming from all quarters, this being what I consider to be the most important issue that has ever faced the Victorian rural community.

The Buloke Times 17 December 2024

This article appeared in The Buloke Times, 17 December 2024.
Related story: Calling a spade a spade, it’s like calling a spud a spud

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