Gullen Range Wind Farm Pty Limited v Minister for Planning

[2009] NSWLEC 1444

Land and Environment Court

of New South Wales

CITATION:	Gullen Range Wind Farm Pty Limited v Minister for Planning [2009] NSWLEC 1444
PARTIES:	APPLICANT Gullen Range Wind Farm Pty Limited RESPONDENT Minister for Planning
FILE NUMBER(S):	10700 of 2009
CORAM:	Moore SC - Fakes C
KEY ISSUES:	DEVELOPMENT CONSENT - DEVELOPMENT MODIFICATION :- Removal of turbines from windfarm Aircraft safety Precautionary approach
DATES OF HEARING:	30 November, 1, 2, 3 and 7 December
EX TEMPORE JUDGMENT DATE:	7 December 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr A Pickles, barrister INSTRUCTED BY Middletons RESPONDENT Mr P Clay, barrister INSTRUCTED BY Department of Planning

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC
FAKES C

7 December 2009

10700 of 2009 Gullen Range Wind Farm Pty Limited v Minister for Planning

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 COMMISSIONERS: Gullen Range Wind Farm Pty Limited (the applicant) has an approval from the Minister for Planning (the Minister) to construct a wind farm, generally to the south of Crookwell, in two portions along a range of hills known as the Gullen Range. It is not necessary for the purposes of this decision, which is one that deals with a discrete issue within one of the three sets of proceedings concerning the Minister’s consent that are being dealt with by the Court, to describe the topography or layout of the wind farm in any great detail. That will be dealt with in our decision on the broader substantive issues.

2 This preliminary matter concerns the requirement by the Minister that eleven of the turbines in part of the proposal in the vicinity of the aircraft landing strip known as the Crookwell Landing Strip (the airstrip), owned and operated by Upper Lachlan Shire Council (the council), should be deleted for reasons of aeronautical safety. In the applicant’s original proposal, an analysis of the safety aspects relating to the wind farm concluded that there was no particular danger arising from the operation of the wind farm in the vicinity of the air airstrip. That assessment, completed by a company known as Aviation Projects, accompanied the material that was sent to the Minister.

3 As a consequence of a range of public submissions, the Minister determined that eleven turbines should be deleted. They comprise four turbines generally to the north-west of the western end of the runway, the air airstrip being a single runway that operates as Runway 27 to the north-west and Runway 09 to the south-east. There were also removed seven further turbines further to the south of the flight path from Runway 27. The airstrip is a grassed one, some 900 metres in length, and is generally oriented so that Runway 27 points towards a saddle in the Gullen Range.

4 As part of these proceedings, in which the applicant seeks reinstatement of those eleven turbines, a single parties’ expert was appointed to provide a report on a number of questions. That expert, Mr Herron, provided a report and he has also given oral evidence in the proceedings.

5 In effect, we understand that his conclusions are as follows:

• There is no statutory safety reason why the turbines should be removed;
• For general safety reasons, this being an unregulated airstrip, the four northern turbines should remain removed (that removal being a position accepted by the applicant).

6 He also concluded that, for emergency services operation, it would be a safe operating area even at times of poor visibility for pilots operating under such circumstances as smoke or cloud and the like.

7 Finally, he was asked a specific question, on the instructions of the Minister, which question requested him to “prepare a map clearly marked with what in his opinion represents a safe distance from the Crookwell landing area to the nearest turbines, particularly to the eleven turbines deleted from the approval”, having regard to the aviation regulatory requirements and safety implications raised above.

8 The conclusion that he reached, on this question, in summary and to which we will return shortly, was that he could not provide either a sound or safe opinion on what represents a safe distance from the Crookwell landing area to the nearest turbines.

9 There is a deal of evidence as to what might be the expected levels of operation of the airstrip. In an expert report or advice prepared by a company known as Airports Plus Pty Limited to the council in June 2009, under the heading ‘No Change’, this report notes that the current landing area at Crookwell appears only to service two local residents and occasional aviation agricultural spraying contractors working in the area. A flying school based at Camden or Bankstown also, according to anecdotal evidence, regularly uses it. The conclusion contained in that report is contrary to other evidence given to us.

10 During the course of the site inspection - at the end of Runway 09, we heard evidence from Mr Hudson (who is a local resident and aviator who operates his own personal plane from this airstrip). He indicated that the airstrip was used on a regular basis by light aircraft and was particularly used as a safe haven for light aircraft travelling up the western side of the range if there was bad weather and they needed to go to a safe landing airstrip.

11 Mr Holland, an objector who flies into and out of the airstrip on a regular basis but who is not resident locally, gave oral evidence in Court that he had landed at the airstrip some 42 times in the last three years, including more than twelve occasions in the last twelve months. He also indicated that there were no other aircraft at the airstrip at the time of his landing.

12 Correspondence from the Minister for Emergency Services to the Minister indicates that, contrary to the opinion contained in the Airports Plus report, Crookwell is used from time to time by the Rural Fire Service for airport use for fire-fighting services.

13 Although this is not an issue, we are satisfied that, consistent with the evidence given by Mr Hudson and Mr Holland, there is a greater of use of the airstrip than is otherwise believed to be the case.

14 The airstrip does not have registration with the Civil Aviation Safety Authority and, as a consequence, is not subject to its specific regulatory requirements that would attach to a registered airstrip. The council resolved on 15 October 2009 not to seek such registration.

15 The critical element in Mr Herron’s report concerns the specific question that we have earlier described. He says in part:

Attachment 3.5 to the environmental assessment, the Aviation Safety Hazard Report, provides calculations on the likely aircraft circuit size and resultant likely distance the aircraft is from the nearest turbines.

This work attracted strident criticism from the local pilot, J H Hudson.

16 This was discussed further in s 5.3 of Mr Herron’s report:

It is my view that there are errors in the calculations leading to an unrealistic generic circuit, but I also hold the view that the methodology, even if calculated correctly, is not sufficiently robust to reach a sound conclusion on this issue.
It is my opinion that sound judgments on this matter can only be made from a properly conducted risk assessment based on CASA Aviation Risk Assessment guidelines that includes for sensitivity an appropriate range of aircraft types, including emergency services aircraft, operating in a range of meteorological conditions and with agreed performance parameters and operating techniques.
Therefore, whilst I can and have provided an opinion on what might constitute an unsafe condition, I am not in a position to form an opinion on what represents a safe distance from the Crookwell landing area to the nearest turbines.
There is absolutely no doubt that an interaction between a light aircraft and the rotating blades of a wind farm turbine would represent a highly undesirable public policy outcome as well as an even more undesirable outcome for those in the plane.

17 We are of the view that a proper precautionary approach (as was put to us by Mr Clay, counsel for the Minister) is that we should refuse the reinstatement of any of the eleven removed turbines. With respect to the four that are noted by Mr Herron in his report as to be desirable to be removed for safety reasons, there is now no issue with respect to them.

18 With respect to the seven in the more southern of the two groups of removed turbines, the option remains (and the onus to do so lies on the applicant) to undertake the aviation risk assessment described by Mr Herron in his report.

19 We are not minded to include a contingent condition dealing with this. We consider that it is appropriate that, if the applicant undertakes such a risk assessment, the question of reinstating those turbines can be considered on a modification application at some future time, not only in light of the risk assessment on aircraft but also in light of such comments as we might make that might be relevant concerning residences in the vicinity and the impact of turbines that are not part of the removal condition by the Minister, (in particular the more northerly of the two Price Jones residences in the vicinity).

20 As a consequence, we do not propose to interfere with the Minister’s decision requiring the removal of those turbines.

Tim Moore
Senior Commissioner

Judy Fakes
Commissioner of the Court