King v Minister for Planning; Parkesbourne-Mummel Landscape Guardians Inc v Minister for Planning; Gullen Range Wind Farm Pty Limited v Minister for Planning
[2010] NSWLEC 1102
•7 May 2010
Land and Environment Court
of New South Wales
CITATION: King & anor v Minister for Planning; Parkesbourne-Mummel Landscape Guardians Inc v Minister for Planning; Gullen Range Wind Farm Pty Limited v Minister for Planning [2010] NSWLEC 1102
This decision has been amended. Please see the end of the judgment for a list of the amendments.PARTIES: APPLICANT- Matter No: 09/10517
J & A KingAPPLICANT - Matter No: 09/10545
Parkesbourne/Mummel Landscape Guardians IncAPPLICANT - Matter No: 09/10700
SECOND RESPONDENT- Matter No: 09/10517
SECOND RESPONDENT - Matter No: 09/10545
Gullen Range Wind Farm Pty LimitedFIRST RESPONDENT (All matters)
INTERVENOR - Matter No: 09/10700
Minister for Planning
Upper Lachlan Shire CouncilFILE NUMBER(S): 10517; 10545; 10700 of 2009 CORAM: Moore SC - Fakes C KEY ISSUES: DESIGNATED DEVELOPMENT - DEVELOPMENT CONSENT - DEVELOPMENT CONTROL PLAN - DEVELOPMENT MODIFICATION - SUBDIVISION :-
Wind farm
Visual impact
Noise
Shadow flicker
Cumulative impacts
AcquisitionLEGISLATION CITED: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Upper Lachlan Shire Council Development Control Plan – Wind Power Generation 2005
Commonwealth of Australia Constitution Act
Land and Environment Court Act 1979
Conveyancing Act 1919
National Parks and Wildlife Act 1974CASES CITED: Gullen Range Wind Farm Pty Limited v Minister for Planning [2009] NSWLEC 1444
Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd [2007] NSWLEC 59; (2007) 161 LGERA 1
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195
Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472
Newbury District Council v Secretary of State for the Environment [1981] AC 578; [1980] 1 All ER 731
Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 1389
RES Southern Cross v Minister for Planning and Taralga Landscape Guardians Inc. [2009] NSWLEC 1034
Mison v Randwick Municipal Council (1991) 23 NSWLR 734
RES Southern Cross Pty Ltd v Minister for Planning and Anor [2008] NSWLEC 332; (2008) 166 LGERA 116DATES OF HEARING: 30 November, 1, 2, 3, 4, 7 and 8 December 2009
DATE OF JUDGMENT:
7 May 2010LEGAL REPRESENTATIVES: APPLICANT- Matter No: 09/10517
Mr J Masten, barrister
INSTRUCTED BY
Mr G Livanes, solicitorAPPLICANT - Matter No: 09/10545
Mr G Underwood, barristerAPPLICANT - Matter No: 09/10700
SECOND RESPONDENT- Matter No: 09/10517
SECOND RESPONDENT - Matter No: 09/10545
Mr A Pickles, barrister
INSTRUCTED BY
MiddletonsFIRST RESPONDENT (All matters)
INTERVENOR - Matter No: 09/10700
Mr P Clay, barrister
INSTRUCTED BY
Department of Planning
Mr S Griffiths, solicitor
Pikes Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMOORE SC
FAKES C7 May 2010
09/10517 King & anor v Minister for Planning
09/10545 Parkesbourne/Mummel Landscape Guardians Inc v Minister for Planning
09/10700 Gullen Range Wind Farm Pty Limited v Minister for PlanningSancho Panza“Take care, your worship, those things over
there are not giants but windmills.”
(from Don Quixote by Don Miguel de Cervantes Saavedra [1602]
Part 1 Chapter 4)
INDEX
Summary of conclusions Introduction The proposal The appeals Air photos Structure of this decision Wind farms in a rural landscape The field inspections The Cullerin Range wind farm The planning context The genesis of the DCP The provisions of the DCP Issues Issues not capable of consideration Issues of a general nature concerning project construction Data and methodology framework issues Impacts arising from wind farms Development assessment and consent framework issues Assessment perspectives of windfarm impacts Compensation and loss of value General construction issues The Crown road Sheep-dip and possible contamination Archaeological issues Platypus habitat and the Crown road Data and methodology issues Noise Visual impact Shadow flicker Impacts – the public domain Pomeroy Road viewpoint (VP3) Walkoms Lane viewpoint (VP4) Grabben Gullen viewpoint (VP11) Conclusion – visual impact on the public domain Impacts on individual properties – introduction Southern section – Mummel area The Clarks’ property The Greeshaw property The Brooks’ properties Other ‘Guardian’ properties in the Mummel area Watson Aggregated assessment of impacts on the south-eastern properties of the southern sector Southern section – north-eastern area Johnson property Benjamin property Ikin property Barber property Price landholding Aggregated assessment of impacts on the north-eastern properties of the southern sector Formby & Brown The Christie property Cumulative impact on the southern sector Northern section – south-eastern properties Picker-Wales Evans B33 Northern section – central-eastern properties Humphrey & Jennifer Price-Jones Gareth & Shondelle Price-Jones Raggett Northern section – northern property Murphy Northern section – north-western properties Dennis Hewitt Paul Hewitt Hyde Hogan Ryman Northern section – south-western properties Montgomery - B7/B17 photomontage Werrin Daniel Hewitt Toole The Kings’ landholding Introduction Lots 6, 7 and8 Lot 9 Lot 10 Lot 11 Lots 5 and 12 General comments on Kings’ subdivision Proposal for acquired land to be a buffer Restriction on use of acquired land Cumulative impact on the northern sector Cumulative impact on all individual landholdings Landscaping conditions Relocation of turbines Sealing of section of road Landholdings with subdivision potential Community enhancements scheme Structure of the acquisition condition Conclusions
Acquisition and impacting turbines table
Directions
JUDGMENT
Summary of conclusions
1 COMMISSIONERS: We have concluded that there is no broad impact basis that would require us to refuse approval for the entire wind farm – whether on impact on the public domain or as an accumulation of effects on individual properties in the vicinity of the wind farm. This conclusion also obviously applies to each of the two separate sections of the wind farm – although the impacts on individual properties are greater in the northern section. Consideration of these broad issues has arisen as a result of proceedings brought by a local community group known as Parkesbourne/ Mummel Landscape Guardians Inc (the Guardians). Although the Guardians have had what we expect they will consider to be limited success in these proceedings, we have been impressed by (and are grateful for) the impressive efforts that various members of the Guardians have made in preparing information that has assisted us in our deliberations.
2 We have, on the other hand, concluded that the impact on properties in the vicinity of the wind farm is more extensive than had been assessed by the Minister. As a consequence, we have concluded that the range of properties to be acquired or, in the alternative at the election of Gullen Range Wind Farm Pty Ltd (the proponent), have the impacts on them ameliorated by turbine removal is greater than originally envisaged.
3 As we have no evidence about what might be the viability consequences of the extent of land acquisition and/or turbine removal we require, we have set out a framework for the conditions dealing with these properties – being a framework that will provide the opportunity for the proponent to determine what mix of acquisition and/or turbine removal is appropriate whilst providing certainty of outcome to the relevant property owners within a defined period of time.
4 We are also satisfied that, if the consequence of these individual property assessments is that there is no combination of acquisition and/or turbine removal that will render the wind farm economically viable (thus resulting in our conclusions amounting to a constructive refusal of the project), such an outcome is appropriate under the circumstances.
5 We have declined to entertain claims for compensation for “blight” and have concluded that the loss of “subdivision potential” (in circumstances where no subdivision application has been lodged with or approved by the relevant consent authority) is a predictable and unexceptional outcome of the approval of the wind farm – the wind farm being a permissible use on the properties where it is proposed to be located. There is thus no basis upon which loss of future subdivision potential could require modification to or refusal of the wind farm.
6 The proposed community compensation scheme is to be less generous than proposed by the Minister for Planning (the Minister) and by Upper Lachlan Shire Council (the council); more generous than proposed by the proponent; and accessible to benefiting properties without requirement for accessing government subsidies or co-contributions from community members
7 We have dealt with a number of issues relating to calculation and measurement of noise impacts – the outcome of which will result in some minor changes to the conditions of consent.
8 Finally, we are satisfied that appropriate conditions of consent can be crafted to permit the use of the southern Crown road reserve for construction component access and ongoing transmission cabling access for connection to the State grid (provided that restrictions set out in the decision are applied in the vicinity of Gurrundah Creek near the abandoned sheep dip site).
Introduction
9 The Gullen Range runs north-south, generally, commencing some 15 km south of Crookwell on the Southern Tablelands. It comprises two groups of modest hills and saddles – rising a maximum of approximately 100 m above the adjacent valley floors. In common with other areas in this portion of the Southern Tablelands, the predictability and strength of the winds in the locality makes it an attractive location for the erection of a wind farm as is here proposed.
10 The land in the vicinity of the proposed wind farm is zoned 1a Rural Zone. It ranges from cleared flats and slopes with scattered trees to open woodland on the more elevated sections. The most common land use is the grazing of sheep and cattle. The surrounding landholdings vary considerably in their size and a number of smaller holdings should be classified as “lifestyle” allotments.
The proposal
11 In August 2007, Epuron Pty Ltd (Epuron) submitted a Major Project application to the Minister to be assessed under Part 3A of the Environmental Planning and Assessment Act 1979 (the Act), for a proposed development of the Gullen Range Wind Farm on the Southern Tablelands of NSW. Because the proposed wind farm exceeded the threshold of generating capacity necessary for it to be declared state significant infrastructure, the Minister became the consent authority for the proposal instead of the council. The application did not specify the number of turbines. However, correspondence from the Department of Planning (the Department) suggests between 80 and 93 turbines were proposed. The proposal is also classed as designated development under Sch 3 of the Environmental Planning and Assessment Regulation 2000 (the Regulation) – cl 18: Electricity generating stations.
12 The proposal is to locate the turbines in four sectors over a distance of approximately 25 km. The proposed sectors are, from north to south, known as Kialla, Bannister, Pomeroy and Gurrundah.
13 Each turbine is to be on a steel tower 85 m high and will have three blades each 47 m long. Each tower will be located on a reinforced concrete footing. Each turbine would generate between 1.75 and 3 MW to be fed into the existing State grid transmission system via a transformer through a combination of underground and overhead cables. The original project also relevantly proposed one substation and the construction or upgrading of access roads.
14 The proponent, a special purpose company and wholly owned subsidiary of Epuron, submitted an Environmental Assessment (EA) to the Department. The EA was placed on public exhibition from 4 August to 5 September 2008. Specialist assessments were carried out by the proponent to assess the impacts of the development on the areas of visual amenity, biodiversity, aviation safety, land value, operational noise, aboriginal archaeology, communications and traffic and transport. These assessment reports (and others not needing to be considered in these proceedings) were included in the EA.
15 In November 2008, the proponent submitted its final submission report to the Department. This report considered and responded to the numerous submissions received as a result of the public exhibition of the EA. The final submission proposed a final number of up to 84 turbines. The only other significant change from the original proposal was an increase of maximum turbine capacity of up to 3.3 MW. The final turbine selection has not yet been made.
16 On 26 June 2009, the Minister granted Project Approval under s 75J of the Act to the proposal subject to a range of conditions. These conditions included the removal of two groups of turbines (totalling eleven turbines) because of what the Minister considered was the unacceptable potential impact on the operation of the Crookwell airstrip. The conditions also gave an ongoing role, in a number of respects, to the Director-General of the Department of Planning (the Director-General).
The appeals
17 As a consequence of the Minister’s determination, three separate sets of proceedings were commenced challenging aspects of the Minister's determination. One element of one of those appeals (by the proponent seeking, amongst other things, the reinstatement of the turbines removed in the vicinity of the Crookwell airstrip) was determined by us as a separate and discrete issue during the course of the hearings [see Gullen Range Wind Farm Pty Limited v Minister for Planning [2009] NSWLEC 1444]. The three appeals were heard simultaneously with the evidence being, to the extent relevant, evidence in all of the proceedings.
18 At the conclusion of our decision concerning the deleted turbines in the vicinity of the Crookwell airstrip, at para 19 we said:
We are not minded to include a contingent condition dealing with this [ possible reinstatement of these turbines ]. 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).
19 During the intervening period of time, we have further considered this comment. There are potentially two areas where the reinstatement of any or all of those turbines might warrant findings. The first of them concerns the overall visual impact of the proposal (whether of the northern section or the total proposed wind farm) if any or all of the seven turbines (KIA_ 7 to KIA_14 [in an apparent bout of triskaidekaphobia, there is no KIA_13 – although there are turbines with this number in the other three sectors!]) were to be reinstated and, second, whether the reinstatement of any or all of those turbines would alter our conclusions about the impact of the proposal on any individual property.
20 However, as any conclusion we might draw concerning these turbines would be speculative at best and, in any event, can have no bearing on any matters presently requiring our determination, we have not expressed any views about the acceptability or otherwise of the impacts (if any) of the reinstatement of any or all of these turbines.
21 The appeal by the proponent, Matter No 10700 of 2009, is an appeal pursuant to s 75K of the Act against five conditions of consent. Apart from the reinstatement of turbines near Crookwell airstrip (condition 1.4), the proponent is also seeking the removal or modification of conditions relating to the relocation of turbines (condition1.5), acquisition of certain lots on a property owned by Mr and Mrs King (the Kings’ property) (condition 2.24) [Mr and Mrs King are the applicants in Matter No 10517 of 2009 – discussed below], sealing of a section of road (condition 2.44), lighting on turbines (condition 2.44) and annual contributions to the Community Enhancement Program (condition 5.6). Mr Pickles of counsel appeared for the proponent and Mr Clay of counsel for the Minister.
22 The two additional proceedings dealt with matters of impact of the proposed turbines on properties on either side of the Gullen Range. The first of these, Matter No 10545 of 2009, is a more generalised appeal brought by the Guardians seeking to challenge the consent for the wind farm on a variety of bases. This appeal is able to be brought by this community group because the proposed wind farm is designated development. As a consequence, an appeal against its approval may be brought pursuant to s 75L and s 98 of the Act by any group or individual who lodged an objection to the proposal during the assessment stage. Having lodged such an objection, the Guardians have standing to bring this appeal.
23 The main issues raised by the Guardians are:
- Inadequate regard to noise impacts
- Unacceptable visual impacts
- Inadequate regard to blade flicker impacts
- Inadequate provision for land acquisition or compensation
- The impacts of roads works in an unmade Crown road
24 The Guardians also adopted two additional elements proposed on behalf of the Kings for modification to the Minister’s conditions of consent – those being conditions relating to the acquisition and landscaping regimes
25 The principal remedy the Guardians are seeking is the refusal of the project. In the alternative, they seek removal of nominated turbines referable to impacts on various properties owned by the group’s members. If the proposal is to go ahead, the Guardians also seek the establishment of a monitoring regime and complaints resolution process, compensation for any fall in property value or loss of subdivision potential and/or land acquisition. Details of the structure of the Guardians’ submissions concerning individual landholdings are given at the commencement of our individual landholding assessments. Mr Underwood of counsel appeared for the Guardians.
26 The final proceedings, Matter No 10517 of 2009, are an appeal, pursuant to s 75L of the Act, by Mr and Mrs King concerning the effect of a number of the turbines in the southern section of the proposal. The Kings’ property is located to the west of the turbines in the Pomeroy sector. These turbines are located along the eastern boundary of the Kings’ property and impact on a number of allotments in an approved subdivision of the Kings’ property. Their right to appeal arises on the same basis as that of the Guardians. The issues raised in their application are the same as those raised by the Guardians.
27 However, in their Statement of Facts and Contentions, the Kings also raised the issue of the visual impact of any requirement to install red flashing aviation warning lights to operate at night. The Kings are seeking the removal of nine turbines in the Pomeroy sector (POM_12 to POM_20 – as per the notation system described below) or alternatively, the refusal of the project. Mr Masten of counsel appeared for the Kings.
28 The council is the third respondent in Matter No 10700 of 2009. The council took part pursuant to s 75K(3) of the Act. The council proposes two conditions that prescribe limits on where turbines can be located. The council’s proposed conditions are:
Any turbine that may be visible from any approved house site on a lot created for residential purposes is to be located a minimum of 2km from that proposed house site.Any turbine that is visible from an existing dwelling not associated with the wind farm development is to be located a minimum of 2km from that existing dwelling.
29 These conditions are in accordance with the Upper Lachlan Shire Council Development Control Plan – Wind Power Generation 2005 (the DCP). In support of these setbacks, the council raised issues of the health impacts of wind turbine noise, the advantage of a distance-based control over a performance-based approach and the precautionary principle. The council also supported the Minister’s condition of consent relating to the annual contribution to the Community Enhancement program on the basis of it being in “the public interest” as proposed. Mr Griffiths, solicitor, appeared for the council.
30 Mr Griffiths’ submissions on this latter point canvassed the level of community compensation funding proposed by the Minister’s conditions; the fund into which this money was to be paid; and the method of distribution and expenditure of money from this fund.
31 In the proponent’s submissions in reply, the scope of our powers on these appeals were questioned – this questioning requiring consideration only if we were to propose that the proponent undertake any further environmental assessment or some environmental assessment on a different basis to that contained in the Director-General’s requirements. As we have not concluded, on merit, that such further or different assessment is required, we need not address whether or not we would have the power so to order.
Air photos
32 As part of the material produced by the proponent, marked-up air photos were tendered for each of the northern and southern sections of the Gullen Range upon which the turbines are proposed to be located. These air photos have been marked with the location of the various elements of the proposal comprising the turbines; the connecting cabling; access roads; and an electricity substation at the point of connection to the main state-wide electricity distribution grid. As will be discussed in more detail later, some of the cabling is to be underground and other elements of the cabling are to be above ground.
33 The turbines in the wind farm have been divided into four sectors. These sectors, running from north to south, were listed earlier. The list is repeated below together with the identifying prefix given to each of the proposed turbines in each of these four sectors.
Kialla KIA_ Bannister BAN_ Pomeroy POM_ Gurrundah GUR_
34 The turbines required by the Minister to be removed as a consequence of their proximity to Crookwell airstrip were in the Kialla sector at the northern end of the northern sector of the wind farm. These turbines were in two groups and were KIA_3 to KIA_14 in this sector.
35 The wind farm’s substation, located in close proximity to a high voltage transmission line to facilitate access to the statewide grid, is marginally to the west of turbine POM_1.
36 The dwelling locations are indicated on the air photos as black squares and a letter and number eg. G23, PW16, B24, K22. The public domain viewing points from where photomontages were created are marked in red eg. VP3. Turbine locations are marked with a black dot (for those approved by the Minister) and a red dot (for those in the Kialla sector not approved by the Minister). Turbine numbering reflects the sector prefixes noted above.
37 At this point, it is appropriate to note that the properties in the vicinity fall into two general classes. These are properties associated with the development (these are hosting turbines or other infrastructure) and those other properties, known as non-associated properties – being landholdings that are not contracted to form part of the scheme. Visual, shadow flicker and noise impacts on associated properties are not relevant in these proceedings.
38 As earlier noted, dwelling locations on various properties were identified and numbered. Although the Guardians’ material used a different numbering system for the dwellings, for convenience, we propose to adopt and refer to the numbering system used by the proponent. We do so because this is the numbering used on the air photos we reproduce below. These comprise, first, the northern section air photo of the Gullen Range and, below that, the air photo of the southern section of the Gullen Range. Although these are reproduced in smaller size than those that were tendered, they are still sufficiently clear to provide an understanding of the wind farm in light of the explanation we have set out above.
39 The outer boundaries of the northern and southern groups of associated properties were also marked in heavy black lines on the northern and southern air photos. Those elements of associated properties marked with heavy unbroken black lines host elements of the project whilst those with heavy broken black lines are within associated landholdings but do not host elements of the project.
40 The broken red lines represent the outer rim of an area, in each air photo, defined by being within 2 km from the nearest proposed turbine location. The broken red line is drawn, for the northern section of the wind farm, on the assumption that the deleted Kialla sector turbines would form part of the proposal.
Structure of this decision
41 To provide assistance in understanding the structure of our consideration of the physical and visual impacts said to exist from the proposal, it is appropriate that we describe the structure that we have adopted for this purpose.
42 As earlier discussed, the proposed wind farm is to be in two distinct sections. We have, therefore, dealt with each of these sections separately. When considering the individual properties, we have done so in a fashion that effects a descriptive circumnavigation of each of those sections (with the exception of the Kings’ property which abuts the central western portion of the southern section). The Kings’ property is not included in the southern circumnavigation as it is the subject of separate proceedings and, thus, warrants a separate portion of the judgement. We have commenced with the southern section as the site inspections commenced with this section.
43 We also note that B33 is one dwelling that would be significantly impacted by the proposal; is not a dwelling on an associated property; and is also not a dwelling whose owner is a member of the Guardians. However, because proper planning involves consideration of all of the impacts of the proposal, at an appropriate time when discussing individual properties in the south-eastern area of the northern section of the wind farm, we deal with the impacts of the wind farm on this property.
44 There were also a number of specific construction impacts to be considered as well as a number of questions of aggregated impact. For those reasons, we have adopted the following structure for the discussion that follows:
- Construction impacts
- Visual impact on the public domain
- Individual Guardian properties (+ B33)
§ Southern section
Ø Mummel area
§ Northern sectiono Clark
Ø North-eastern area
o Greeshaw
o Brooks
o Bridge
o Cox
o Aboutaka
o Scott
o Madden
o Jones
o Dallas
o Watsono Johnson
o Benjamin
o Ikin
o Barber
o Price
o Formby & BrownØ Christie subdivision allotments
Ø South-eastern properties (+ non- Guardian B33)
o Picker-Wales
Ø Central-eastern properties
o Evans
o B 33o H Price-Jones
Ø Northern property
o G Price-Jones
o Raggetto Murphy
Ø North-western propertieso Dennis Hewitt
Ø South-western properties
o P Hewitt
o Hyde
o Hogan
o Ryman
o Montgomery
o Werrin
o Daniel Hewitt
o Toole- The Kings’ subdivision (Lots 5 to 12)
- The cumulative impacts on individual properties in the northern section and on individual properties in the southern section (including the Kings’ property)
- Cumulative impact overall on all properties involved in both sections
45 In the prologue to his decision in Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd [2007] NSWLEC 59; (2007) 161 LGERA 1 (the Taralga wind farm proceedings), Preston CJ said the following with respect to wind farms in a rural landscape:
2 To others, however, the change is positive. It would represent an opportunity to shift from societal dependence on high emission fossil fuels to renewable energy sources. For them, the confrontation is beneficial – being one much needed step in policy settings confronting carbon emissions and global warming.1 HIS HONOUR: The insertion of wind turbines into a non-industrial landscape is perceived by many as a radical change which confronts their present reality. However, those perceptions come in differing hues. To residents, such as members of Taralga Landscape Guardians Inc (the Guardians), the change is stark and negative. It would represent a blight and the confrontation is with their enjoyment of their rural setting.
46 The community group in these proceedings, the Guardians, has a similar perspective on this proposed wind farm in their landscape. Equally, others who objected to this proposal but who are not members of the Guardians raised similar objections.
47 There is, however, in these proceedings, at least one significant difference from the circumstances with which Preston CJ was faced in Taralga. In the Taralga wind farm proceedings, the line of turbines in that wind farm ran across the field of vision of a modestly concentrated population centre comprising the rural village of Taralga. Rural residences, on non-associated properties, were comparatively sparse and spread out. In addition, the presence of the Cockbundoon Range (and the wooded barrier it provided to the east of the proposed Taralga wind farm) meant that there were very few residences on rural properties to the east of the most easterly line of turbines that needed to be considered for that proposed wind farm.
48 Here, as can be seen from the earlier reproduced air photos, there are residences in comparatively close proximity to the Gullen Range (to both the east and the west of both its northern and southern portions). The township of Grabben Gullen is located approximately 3 km to the west of the Bannister sector. A common concern voiced by many of those individuals who gave evidence in the Guardians’ case is that there are 32 non-associated residences within 1.5 km of one or more of the turbines and about 60 non-associated residences within 2 km of one or more of the turbines.
49 Equally, although there is a nearby township of Crookwell and a major urban area of Goulburn in the region of the wind farm, the proposed Gullen Range wind farm will not be visible significantly (or at all) from these settlements.
50 The consequence of that set out immediately above is that the assessment of this wind farm in its rural landscape requires a series of impact assessments on individual rural properties greater in number than that which was required for the Taralga proposal. Those individual assessments dealing with issues such as visual impact; noise impact; and shadow flicker are set out later in this decision.
The field inspections
51 We spent two days and a portion of a night undertaking extensive field inspections. For reasons of time constraint, even within two full days, it was not possible to visit every property to assess the impacts raised by the Guardians with respect to that property.
52 However, in addition to those properties that we were able to visit, other affected landholders were able to speak to us about their concerns from locations in the vicinity of their landholdings. During the course of hearing from these landholders, notes were taken of this informally given evidence and those notes were subsequently tendered.
53 As part of the EA, the proponent had had its visual impact assessment expert, Mr Wyatt, prepare a number of photomontages showing the proposed turbines in the landscape from various locations. In response to contentions raised by the Guardians, Mr Wyatt also prepared supplementary photomontages from various affected properties. These were tendered as part of his evidence. The nature and location of these photomontages are discussed, in detail, where relevant to be considered for a particular location.
54 In general terms, Mr Wyatt's photomontages were used during the course of the field inspections, and at a number of public domain and private landholding viewing locations to understand what would be seen from each location when looking in the direction toward which each base photograph had been taken. A more detailed explanation of the nature of the photomontage as produced by Mr Wyatt is given later.
55 Finally, with respect to the field inspections, there are three specific elements that should be noted in addition to the general description given above. Two of these relate to an existing wind farm on the Cullerin Range some 30 km west of Goulburn and 12 km to the east of Gunning. This wind farm is immediately to the west of the Hume Highway (the highway) where this road passes within a few hundred metres of the closest of those turbines. The third relates to the inspection made of the Kings’ property as this is an inspection relevant both in their specific proceedings and in the general proceedings.
The Cullerin Range wind farm
56 The Cullerin Range wind farm comprises 15 turbines – each of which has a turbine housing height of 85 m and an uppermost rotor to a height of 135 m. The majority of the turbines run along the ridge in a north/south direction with several more to the west in a line roughly perpendicular to the line of the majority of the turbines. The separation between turbines is some 400 m or so.
57 At the commencement of the second day of the field inspections, we drove to the Cullerin Range wind farm. When approaching this wind farm from Goulburn, we stopped, on the side of the highway, some 3.4 km to the east of the closest turbines. This viewing location gave us an appreciation both of the cluster of turbines at the southern end of this wind farm and an impression of these turbines in linear spread.
58 Some 400m from the closest turbine, Lerida Road North joins the highway and runs, generally north-westerly, along the base of the Cullerin Range and the southern end of the wind farm. We took this road and turned left along a track located on a Crown road reserve. This track climbed the Cullerin Range to a communications tower and associated facilities. Immediately adjacent to this communications tower (but across a fence) are located a number of the turbines. When we arrived, the turbines were not turning and we were subsequently informed that they had been stopped to permit network maintenance in the vicinity. As we drove away to commence our visit to sites selected by the Guardians, we observed that that the turbines had started to turn. As a consequence, we returned to the communications tower and walked close to one of the turbine towers. During the course of this revisit, we were able to gain an appreciation not only of the visual presentation of the moving blades in the landscape but also to hear, both up wind and downwind, the noise of the turbines. We did this from points only some 200 m or so from the closest rotor.
59 For aviation safety reasons, seven of the 15 turbines of the Cullerin Range wind farm have flashing red LED lights located on top of and at the rear of the turbine housing or nacelle. Each of the affected turbine housings with such lights is fitted with a pair of these lights.
60 Although the Minister's conditions of development consent for the Gullen Range wind farm do not include any requirement for such lighting, the proponent and the Minister agreed that a condition prohibiting such lighting would be appropriate for the Gullen Range wind farm. If such lighting were validly to be required by the Civil Aviation Safety Authority (CASA), such requirement would, by virtue of s 109 of the Commonwealth of Australia Constitution Act, override any State planning prohibition contained in the conditions of development consent.
61 As a consequence, we agreed to undertake a night-time inspection of the Cullerin Range wind farm to obtain an appreciation of what might be the visual impact of the flashing red lights. Although we did not stop at an observation point on the highway whilst approaching the wind farm from Goulburn, its lights were obvious from a considerable distance. The evidence discloses that they can be seen from some parts of Crookwell, a town located some 6 km or so in a generally northerly direction.
62 During the night-time inspection, we again drove up to the communications tower via the track on the Crown road reserve. As the evening was comparatively cloudless and we had a full moon, we were able to appreciate the likely maximum night-time visibility of the turbines and their moving blades as well as to see the flashing lights close-up.
63 After leaving the vicinity of the communications tower, we then drove to a point on the old Hume Highway, now known as the Old South (or Cullerin) Road, where we were able to see all seven of the sets of turbine nacelle lights from a distance of some 8 km.
The planning context
64 The vast majority of the properties that are non-associated objector properties are located in the council’s local government area. This shire was created by the amalgamation of two pre-existing shires, Gunning Shire and Crookwell Shire, and the addition of a significant portion of a third, Mulwaree Shire. The residual portion of Mulwaree Shire was added to the Goulburn City local government area to form the Goulburn Mulwaree Council local government area. The consequence of this is that three Local Environmental Plans (LEPs) apply to land in the vicinity of the Gullen Range wind farm.
65 In addition, the council presses planning controls contained in the DCP as being applicable to this proposal. To the extent that the DCP might be applicable, it is obviously only applicable to those residences within the boundaries of the council's local government area.
66 The consequence of this is that a number of the objector properties in the vicinity of the south-eastern corner of the southern section of the proposed wind farm are across the shire boundary in the Goulburn Mulwaree Shire local government area and thus, if it were applicable, would not have the benefit of any of the provisions of the DCP. The following Guardians members’ properties are located in Goulburn Mulwaree Shire: the Aboutaka, Bridge, Brooks, Clark, Cox, Dallas, Greeshaw, Jones and Watson properties.
67 Finally, with respect to the planning controls, it should be noted that the question arose for consideration relating to the subdivision potential (under the various LEPs) of various present landholdings.
68 There are a variety of subdivision minimum allotment size provisions applying at the present time depending on which LEP of the former local government areas is applicable. The council has also prepared a draft shire-wide LEP based on the state-wide template. This draft LEP has been on public display and the evidence of Mr Mowle, the council's Director of Environment and Planning, was that the councillors were meeting, in a workshop, in mid-December 2009 to consider whether or not any changes should be made to the draft as a result of the public comments.
69 Although Mr Mowle expressed the hope that the new LEP would receive Ministerial approval, and come into effect, in the first half of 2010, this was a speculative proposition, at best. We do not consider that the draft LEP would therefore be regarded as being either imminent or certain and therefore should be given no weight in these proceedings.
70 In addition, the draft LEP includes a standard clause, clause 1.8A, which is the common transition provision in the template LEP. This transition provision is in the following terms:
If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had been exhibited but had not commenced.1.8A Savings provision relating to pending development approvals
71 As a consequence, even if we are wrong in concluding that the draft LEP should be given no weight in these proceedings, we are satisfied that it is probable that any subdivision application lodged under any of the presently applicable local environmental plans would be predominantly assessed against the terms of the existing applicable local environmental plan. We set out this conclusion because the ability to subdivide into a number of smaller and more lifestyle oriented rural allotments will be curtailed when the draft LEP comes into effect (unless there are significant changes to the presently proposed zonings) for the potentially affected properties in the vicinity of this proposed wind farm. We note that we do not understand there to be any undetermined subdivision applications (to either council) with respect to any property that is relevant in any of these proceedings.
The genesis of the DCP
72 In his statement of evidence, Mr Mowle said the following concerning the genesis of the setback distances contained in the DCP:
- These setback distances were generally based upon overseas research, particularly papers presented by Dr Robyn Phipps (Massey University, New Zealand) and Dr Nina Pierpont (USA). A copy of these papers are [ sic ] attached at Appendix 5.
73 During the course of his oral evidence, Mr Mowle was asked, by Mr Pickles, whether these controls had been changed after the council had reviewed that the terms of the DCP in each of 2007 and 2008. Mr Mowle said that the controls had not been changed and remained in the form originally adopted by the Council on 24 September 2005.
74 The combination of his original statement of evidence and this exchange during the course of oral evidence causes us significant disquiet about the evidence given by Mr Mowle and the extent, if any, to which credibility can be attached to what he has written or said.
75 This concern arises because it is clear, as he had admitted during the course of his oral evidence, that the two documents he asserted were the research foundations for the controls in the DCP were, in one instance, written at least three months after the date of the council meeting in 2005 when the DCP was adopted (as this document cites another paper presented on 14 December 2005) and, in the second instance, was written no earlier than at least some time in 2006 (as this document cites material originating some time during that year).
76 Under further questioning, Mr Mowle revealed that he did not know what was the basis for the setback controls in the 2005 DCP but that he understood, anecdotally, that they had been developed from (unspecified) material made available by elected members of the council.
77 At its most charitable, the approach that Mr Mowle has taken to the preparation of his evidence concerning the DCP could be described as sloppy in the extreme. To the extent that matters concerning the DCP require consideration of his evidence, we consider it to be unreliable. Had other matters arisen in the proceedings where his evidence was in conflict with evidence from other witnesses or appropriately validated documents, circumstances which fortunately have not arisen, we would have had great difficulty in placing any reliance on his evidence. We would have preferred the other evidence to any evidence given by him unless that other evidence were also undermined as to credit to a similar extent as his is or his evidence had been corroborated by other, reliable evidence.
The provisions of the DCP
78 There are a number of controls in the DCP, contained in cl 8, that are said by Mr Griffiths to be relevant. These controls are as follows:
f) Where visible from a non related dwelling or immediate surrounds, the development shall not be located within 15 times the blade tip height or 2.0 kms (which ever is the greater) of any dwelling not associated with the development or 15 times the blade tip height or 2.0 kms (which ever is the greater) from any lot that has been created for the purpose of a dwelling. Where turbines are proposed to be significantly higher that such properties/dwellings or where the turbines will dominate the immediate view from the dwelling or dwelling lot, increasing these separation distances is recommended.e) Proposed wind turbines shall comply with the South Australian EPA Wind Farms Environmental Noise Guidelines. Note that where noise levels are found to exceed EPA guidelines, Council may require remediation work such as cessation or decommissioning of the turbines to reduce the noise impacts on sensitive receptors such as non related dwelling.
79 With respect to the requirements in the controls relating to the application of the 2003 South Australian Environmental Noise Guidelines: Wind Farms, this provision is mimicked in the Director-General's requirements and is uncontroversial save to the extent that it has been submitted that the 2009 South Australian Wind Farms Environmental Noise Guidelines should be applied rather than the 2003 version. This matter is dealt with elsewhere in this decision.
80 The imposition, if the DCP were applicable, of a 2 km radius [in this case] turbine visibility exclusion zone from any existing dwelling or allotment where there is an existing dwelling entitlement has been described by Mr Witherby, the proponent's town planner, as being “a crude tool”.
81 Before we turn to deal with an extent to which this provision, if relevant, would be of utility, we regret that it is appropriate that we make some further commentary on the quality of Mr Mowle’s evidence. Mr Mowle prepared a series of air photos on which he had marked those turbines that he considered did not comply with the exclusion zone requirements of the DCP. Mr Griffiths tendered those marked air photos. Those air photos had been used by Mr Mowle to mark, with crosses, those turbines that he considered did not comply with the exclusion zone requirements of the DCP and those that Mr Mowle assessed as compliant were circled.
82 When questioned why the location of turbine POM_19 – some 15 m or so from the boundary of an allotment with not merely a dwelling entitlement but with a fixed location building envelope pursuant to plans incorporated in the development consent (this being one of the allotments in the Kings’ subdivision) – was not shown as being a turbine that he considered did not comply with the exclusion zone requirements of the DCP, Mr Mowle conceded that he had, in fact, only made his assessment based on presently existing dwellings on the non-associated properties rather than on the second limb of the exclusion zone tests in the DCP relating to allotments with a dwelling entitlement.
83 Mr Mowle further conceded that, if allotments with dwelling entitlements were taken into account, it would be unlikely that any significant number of turbines in the presently proposed wind farm would satisfy this provision of the DCP. His approach to this issue in the preparation of his evidence demonstrated the same degree of unacceptability, for the same reasons, as earlier discussed.
84 In final submissions, Mr Clay and Mr Pickles both raised the issue of the relevance of the DCP to our decision. Section 75J(3) of the Act says:
- (3) In deciding whether or not to approve the carrying out of a project, the Minister may (but is not required to) take into account the provisions of any environmental planning instrument that would not (because of section 75R) apply to the project if approved. However, the regulations may preclude approval for the carrying out of a class of project (other than a critical infrastructure project) that such an instrument would otherwise prohibit.
85 Section 75R says:
(3) Environmental planning instruments (other than State environmental planning policies) do not apply to or in respect of an approved project.
86 Putting a contrary view, Mr Griffiths submitted that s 39(4) of the Land and Environment Court Act 1979 (the LEC Act) and its reference to the ‘public interest’ requires us to consider the DCP. Mr Maston submitted that no provision of Part 3A of the Act inhibits the Court, on appeal under s 75L, from having regard to any relevant standard. Mr Maston submitted that the DCP represents the will of the local community as council has reviewed the DCP on no less than three occasions.
87 First, we note that the definition in the Act of "environmental planning instrument" is in the following terms.
- " environmental planning instrument " means an environmental planning instrument (including a SEPP or LEP but not including a DCP) made, or taken to have been made, under Part 3 and in force.
88 The consequence of this is that the discretionary opportunity to consider an environmental planning instrument provided by s 75J(3) of the Act is not enlivened with respect to the DCP. As a consequence, we consider that there is no basis upon which we could have regard to the DCP within this statutory framework.
89 However, if we are correct in reaching this conclusion, this does not entirely remove any opportunity to consider the DCP. In Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195, Mason P said, at para 81:
- A consent authority may range widely in the search for material as to the public interest.
90 As a consequence, subject to what we discussed earlier about the basis upon which the DCP has been developed, the DCP might be capable of consideration on a broader “public interest” basis.
91 In this instance, it is relevant to note that McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at para 87, in his second dot point, said:
- A development control plan adopted after consultation with interested persons, including the affected community, will be given significantly more weight than one adopted with little or no community consultation.
92 In this context, evidence that we have concerning the genesis of the DCP is that provided by Mr Mowle as discussed earlier. For the reasons we earlier set out, it is clear from proper consideration of his evidence that we have no basis upon which we could establish the provenance or derivation of the numerical controls contained in the DCP. Absent such provenance or derivation, we are left with only the conclusion that what is colloquially described as “the streaker’s defence” – it seemed like a good idea at the time – could be applied to these numerical controls in the DCP. This is not a proper basis upon which to found numerical controls that relate to structures of the type that are not commonly dealt with through such controls (unlike, for example, conventional building heights or floor-to-ceiling distances within built structures where there is a widely understood general numerical range for such controls).
93 As a consequence, on this second basis, we do not consider it is appropriate to pay particular regard to the numerical controls in the DCP and we propose to proceed to deal with an individual assessment of the impacts on specified properties having regard to topography, orientation of dwellings, distances to and numbers of visible turbines and the like.
94 The issues that were raised by the parties in the proceedings fall within five categories. First, conveniently, it is appropriate to deal with those matters that were raised as issues by the objectors that are not properly matters capable of being considered by the court in an appeal such as this. Second, there are those matters that related to what data was required or how data should be collected. Third, there arose a number of issues that relate to construction of elements of the proposed wind farm comprising construction of elements that are not specifically of a wind farm nature such as road construction. Fourth, there are those issues that arise specifically from potential impacts of the location and nature of the structures that are idiosyncratically part of a wind farm. Finally, there are several framework issues that arise concerning the operation and structure of any consent that might be granted to the wind farm.
Issues not capable of consideration
95 A number of the objectors raised the issue of blight (or impact on property values) if the wind farm were to be permitted. As discussed in more detail below, these are matters not capable of consideration by the Court.
Issues of a general nature concerning project construction
96 Two issues arose concerning the proposed construction of an access road and the installation of underground power cabling along a presently unconstructed Crown road.
Data and methodology framework issues
97 Particular issues arose concerning noise including the nature of the noise that might be experienced at various locations; where and how it was appropriate to measure wind speeds; and what would be the resulting noise impacts, if any, if different methodological approaches were taken.
Impacts arising from wind farms
98 There are three adverse impacts that potentially arise from the establishment of a wind farm. These potential impacts can be impacts on existing or future residences but can also be on the broader public domain.
99 The first of these is the visual impact of the turbines in the landscape and, if they are lit at night for aviation safety reasons, the visual impact of the flashing red lights in the night sky. Visual impact is one that requires to be assessed not merely from individual residential or potential residential locations but also from the broader public domain.
100 The second potential impact arises from the noise caused by the operation of the turbine blades. There are a number of noise effects that arise in varying operational and meteorological conditions.
101 The third effect is known as shadow flicker and arises from the movement of the turbine blades if they are between an observer and the rising or setting sun.
102 Each of these effects is explained in more detail below in the relevant section of this decision dealing with that topic.
Development assessment and consent framework issues
103 The matters that arose of this nature concerned three distinct matters.
104 These were:
- how the conditions of consent would operate with respect to property acquisition or, in the alternative, turbine removal;
- how the money proposed to be provided by the proponent for community compensation would be calculated and administered; and
- whether or not, in a specific instance raised with respect to the Kings’ property, the proponent should be permitted to relocate turbines to positions that might become available if portion of the Kings’ property were to be acquired by the proponent.
Assessment perspectives of windfarm impacts
105 There are a variety of different locations raised by the Guardians and Mr and Mrs King from which it is necessary to make an assessment of either all of the proposed wind farm or of individual elements of it. For each of these types of location, an assessment will be required of the possible visual impact; noise impact; and shadow flicker impact as relevant. In addition, it is necessary to consider what would be the cumulative impact of any combination of these arising at those receiver locations.
106 These locations fall into three separate categories. They are:
- Locations in the public domain;
- Existing residences and existing allotments with a dwelling entitlement; and
- Those landholdings said to be able to be subdivided in order to create dwelling entitlements and thus the impact on a dwelling on such a hypothetically subdivided allotment.
Compensation and loss of value
107 A significant number of the individual objections raised concerns about the impact on the potential resale value of their property if the proposed wind farm were to be constructed. Compensation was requested to be required to offset this loss of value.
108 There is no loss of value issue to which we are lawfully able to have regard in these proceedings. The proposal is one that is permissible with development consent and, as we have undertaken in the main body of this decision, is to be tested as to its acceptability both in a general sense and as to the impact on individual properties. To have regard to fears of a loss of value for properties, fears which may or may not be realised (but which we accept are genuinely and honestly held) are not matters that we are permitted to take into account in these proceedings. To do so would, on our understanding, constitute an appealable error.
109 With respect to such requests for compensation for “blight”, Preston CJ said in Taralga:
The concept of “blight”
150 The Guardians advance the proposition that a consequence of approval of the wind farm will be that a number of properties which are in the vicinity will suffer from “blight” for which there should be payment of compensation if the project were to be approved.
151 The blight which is described as occurring relates to the loss of future property value or from loss of amenity.
152 The loss of value is said to arise either because of a general amenity impact from the presence of the turbines or because some anticipated subdivision development – whether by way of concessional allotments or otherwise – may not be able to occur or, if permitted by the Council, would have the amenity of the resulting allotments so impacted by the wind farm that they would be unable to be sold.
153 The Guardians say, as a consequence of this blight, there should be a general requirement for those who can demonstrate such an effect to be compensated, monetarily, for that blight. They say that this compensation should be assessed consistent with the statutory approach laid down in the Land Acquisition (Just Terms Compensation) Act 1991 (NSW).
154 Such a proposition faces a number of insurmountable hurdles.
155 The first is that the wind farm, as earlier noted, is a permissible use on all of the parcels of land upon which it is proposed to be located.
156 The second is that, although it is appropriate to consider the possibility that ameliorative works might be required to be undertaken by a proponent for landholders who might otherwise be adversely impacted (but not so adversely impacted to warrant refusal of the proposal or any part of it), what is sought is not remedial measures but payment of monetary compensation.
157 The third is that, whilst I have decided, for reasons I have given below, there are two properties which are sufficiently impacted that it is appropriate to require RES Southern Cross to purchase them (should their owners elect to sell), that is a matter where, again, the choice of response is in the hands of the two landholders.
158 Although there are elements of public interest and public policy issues associated with this proposal, nonetheless, the project remains one by a private developer on land where it is permitted. It is, although of a significantly large scale, nonetheless on all fours with a similar development in any other context which met the same criteria.
160 Creating such a right to compensation (for creating such a right it would be) would not merely strike at the basis of the conventional framework of landuse planning but would also be contrary to the relevant objective of the Act, in s 5(a)(ii), for “the promotion and co-ordination of the orderly and economic use and development of land”.159 If the concepts of blight and compensation, as pressed by the Guardians, were to be applied to this private project (a proposition which I reject) then any otherwise compliant private project which had some impact in lowering the amenity of another property (although not so great as to warrant refusal on general planning grounds when tested against the criteria in s 79C of the Act) would be exposed to such a claim.
110 Nothing has been demonstrated to us that would lead us to the opinion that there has been any change to this position since Preston CJ enunciated it. As a consequence, we decline to consider any issues relating to claims for compensation.
- The Crown road
111 The proponent proposes that the alignments of two unmade Crown roads will be used for purposes associated with the substation that is to be located toward the north-eastern corner of the southern portion of the proposed wind farm. These are for construction access and for underground cabling.
112 The alignment of one of the unmade Crown roads is proposed to be used to construct an access road to bring structural components needed for the construction of the proposed wind farm elements in this sector to their proposed sites. This arises because an alternative access (using a second unmade Crown road for part of its path) is said by the proponent not to be feasible as two landholders who are opponents of the wind farm have not granted consent to cross their properties. There is also said to be an existing high voltage transmission tower that presents a problem using this Crown road (unless there were an easement over an objector property to avoid the tower).
113 No action has been initiated, pursuant to relevant provisions of either the Conveyancing Act 1919 or the Land and Environment Court Act 1979 to obtain the very modest easements over these objectors’ properties that would be necessary to utilise the existing public road sections and shorter element of the second unmade Crown road. However, two factors render the possibility of easements irrelevant. These arise from our conclusions that:
- there are no insuperable barriers to using the southern of these Crown road (as discussed below); and
- if the proponent acquires the Johnson’s landholding (rather than deleting turbine POM_01) – as these alternatives will arise from the individual property assessments discussed later, easements would not be required (as we understood from our drive along the northern of these Crown roads during the field inspections).
114 In addition, each of the Crown roads is proposed to be used to bring an underground electricity cable to the substation to feed electricity generated by the wind turbines into the state's main electricity grid – a transmission line of which, as earlier noted, passes across an associated property near the proposed substation.
115 The trenching to bring this underground cabling needs to be excavated, for electrical safety reasons, approximately 1 m deep and between 500 mm and 1 m wide. There is no issue or controversy concerning the use of the shorter length of Crown road, that is the northern access route, for cabling (rather than construction vehicle traffic) but there are two issues associated with the use of the southern of the two unmade Crown roads.
116 The longer (the southern) of the two unmade Crown roads has two issues raised by the Guardians concerning its development for the purposes of the wind farm. These are set out in more detail immediately below but relate to possible disturbance of contaminants near an abandoned sheep dip and the possible disturbance of Aboriginal cultural items. These issues arise from the discovery of scatters of aboriginal cultural material on portions of the Crown road and from the fact that, in close proximity to Gurrundah Creek, the Crown road passes within 20 m or so of a sheep-dipping site.
117 An additional matter was raised by Mr Phillip Price, a member of the Guardians, relating to platypus habitat in the vicinity of this Crown road.
118 After visiting the Ikin property (discussed when dealing later with individual property assessments), we traversed the paddocks to a point opposite on the upper slope of a steep gully above and on the opposite side of Gurrundah Creek to the sheep-dip site and the south-western section of the Crown road on the Phillip Price property. In this vicinity, the Crown road is unmade but its route follows a fence line in an east-west direction, turns 90 degrees south down a steep slope to Gurrundah Creek and then turns 90 degrees to the east along the creek and immediately to the south of a farm dam.
Sheep-dip and possible contamination
119 The sheep dip site, on the basis of anecdotal evidence given to the proponent's contaminated sites consultant, Mr Hobbs, by Mr Phillip Price, operated between approximately 1950 and approximately 1980. According to this anecdotal evidence, in the earlier part of its operation, arsenic-based dipping compounds were used and, towards the end of its operation, these had been replaced with organophosphate or organochlorine pesticides. Mr Hobbs reported that there were several rusting drums at the site, labelled as containing the active constituent ‘Diazinon’ (an organophosphate). This is consistent with the anecdotal evidence.
120 The point where trenching for a cable crossing and any constructed road crossing of the creek would take place is down-slope from the sheep dip site.
121 Mr Hobbs provided a statement of evidence and also gave oral evidence concerning the sheep dip site. In his statement of evidence, relevantly, he said:
Based on my observations the site exhibited the potential for the presence of elevated concentrations of soil contaminants, such as arsenic and other associated dipping/drenching compounds (including organophosphate and organochlorine pesticides), which would have been typically used as treatment chemicals at such sites.
Based on my observations of the site it was apparent that the slope of the land was to the north and west from the sheep-dip structure which is in the direction of the proposed Crown road reserve. If contaminants were released from the sheep-dip structure it would therefore be reasonable to assume that they may have migrated in a down-gradient/down-slope direction toward the Crown road reserve.
I am therefore of the opinion that it would be prudent to assume that there is a reasonable chance of disturbing contaminants, if present, during future site works associated with the proposed Crown road.
122 During the course of Mr Hobbs’ oral evidence, he made it clear that his assessment of the sheep dip site was based on a surface assessment only and that no soil sampling or subsurface investigation had been carried out by him. He said that it would not be possible to understand whether and to what extent there might be a risk of mobilisation of contaminants if there were to be excavation at or in the vicinity of this site without undertaking soil sampling and analysis of what contamination, if any, might actually be present.
123 During the course of this inspection, Mr Phillip Price gave evidence that his domestic and stock water supply was pumped from Gurrundah Creek 100 m or so downstream of the point where the Crown road reserve crossed the creek.
124 On the basis of the uncontradicted expert evidence of the proponent’s own witness concerning the inadequacy of the information regarding contamination risks from the sheep dip site, particularly given that there is a water supply for human and livestock consumption drawn from Gurrundah Creek in reasonable proximity downstream from a location where potentially serious contaminants might be mobilised during the course of construction, we do not consider that it would be responsible, on a precautionary basis, to permit any excavation in the vicinity of the sheep dip site.
125 We have considered whether or not we could impose a condition that would preclude such construction unless and until the Director-General was satisfied that there was no likelihood of contaminant mobilisation into Gurrundah Creek from such construction activity or that there was, in fact, no such down-slope contamination capable of being so mobilised but we are satisfied that such a condition is not appropriate. We have reached this conclusion because we consider it preferable that we deal with this matter to finality.
126 As a consequence, we require the conditions of consent to be amended to require that no soil disturbing activities of any nature are permitted in this Crown road reserve between Gurrundah Creek and 10 m upslope from the northern end of the abandoned sheep dip site. We consider that, in light of Mr Hobbs’ evidence, the incorporation of a prudent upslope separation from the northern end of the abandoned sheep dip site will provide a sufficiently precautionary buffer.
127 Placing the restriction on the use of the Crown road in this fashion will not, therefore, preclude the proponent from exploring engineering solutions that would obviate the necessity for any soil disturbance in the area where there is the potential to mobilise contaminants. Equally obviously, this requirement may be the subject of some modification application, in future, if the proponent can establish some proper evidentiary basis for any proposed modification after some proper testing regime is undertaken as envisaged by Mr Hobbs’ evidence.
Archaeological issues
128 We have also been provided a report concerning aboriginal artefact scatters within the Crown road reserve. This report, from Ms Dibden, an archaeologist retained by the proponent, is uncontradicted expert evidence on this issue. Ms Dibden’s statement of evidence contained the following conclusion:
The opening up of the Crown road will result in impacts to Indigenous artefacts (including both recorded artefacts and those which are predicted to be present); any Indigenous artefacts which are present will be comprehensively disturbed as a result of road construction and/or the installation of transmission lines. However the impacts will disturb Indigenous artefacts which are assessed to be of low significance.
In addition, given the small development footprint in the Crown road (that is – an impact area which is discrete, linear and narrow), the proposed impacts to Indigenous artefacts can be considered likewise to be discrete and minimal in nature. The corollary of this is that Indigenous artefacts which are situated to and outside the Crown road within the broader landscape will not be subject to impacts relating to the proposal.
129 Ms Dibden was not required for cross-examination by the Guardians. We have no basis upon which we could question her conclusions and, as a consequence, we accept her uncontradicted evidence. It therefore follows that, subject to the seeking of appropriate approvals under the National Parks and Wildlife Act 1974, we also accept that the nature of the aboriginal cultural material on the Crown road is such that it does not provide any basis upon which we could require modification of the proposal nor does it warrant refusal of the proposal.
Platypus habitat and the Crown road
130 In addition to Gurrundah Creek, there are two large farm dams in this immediate area. Mr Price gave uncontradicted evidence that they contained platypus. Platypus were not identified or listed in the biodiversity assessment carried out for the EA. As we have no reason not to accept Mr Price’s observations, any road construction and interference with Gurrundah Creek must take into account potential impacts on platypus. An ecologist is to be engaged by the company to undertake a detailed survey of the creek. The Director-General is to be satisfied that any measures that would need to be to be undertaken to mitigate any negative impacts on platypus habitat and activities are to be implemented.
- Noise
131 On 12 November 2009, the Court directed the Guardians’ acoustic expert to provide a list of concerns and then confer with the proponent’s and the Kings’ acoustic experts. A joint report of acoustic experts was submitted as evidence. The Guardians retained Dr Tonin and the proponent retained Mr Turner. The concerns raised by the Guardians related to:
- the Van den Berg modulation/effect;
- noise impact at night;
- should wind speed be referenced at hub height;
- data analysis;
- noise mitigation;
- turbine options; and
- peer review of consent approval.
132 The Van den Berg Effect is described by Preston CJ in Taralga, in para 229, as:
- … an additional noise modulation described as a thumping noise which occurs, in limited circumstances, as a consequence of a temperature inversion between the tip of the rotor when it is at its upmost extension and the tip of the rotor when it is at its most downward extension.
133 Dr Holmes and Mr Purton, meteorologists for the Guardians and the proponent respectively, authored of a joint report entitled ‘Analysis of Meteorological Data for Gullen Range Wind Farm’. Based on this meteorological analysis, Dr Tonin and Mr Turner agreed that the Van den Berg modulation is unlikely to occur at any relevant location, or if it does, it would occur infrequently. We accept this uncontradicted expert evidence that the Van den Berg effect is unlikely to occur and it thus cannot be the basis for any modifications to the proposal.
134 With respect to noise levels at night, Dr Tonin expressed the opinion that the proponent should be required to undertake night-time assessments of background noise levels and a revised noise assessment for the final turbine model for night-time noise. He argued that the base limit between the hours of 2200 to 0700 should be 40dB(A) rather than 35dB(A). This noise level is based on the World Health Organisation (WHO) recommendations for internal noise level of 30dB(A) for bedrooms coupled with the assumed noise reduction through an open window of 10dB(A) for NSW conditions (the latter being based on published criteria for industrial noise and road traffic noise).
135 The actual WHO guidelines are 45dB(A) and this level was used by Marshall Day Acoustics (MDA) in the preparation of the noise impact assessment in the EA.
136 Mr Turner contended that neither the 2003 nor the 2009 South Australian guidelines require noise assessment to be separated into day and night periods. He was of the view that the baseline of 35dB(A) stated in those guidelines is more stringent than the WHO recommendations and therefore the need to go beyond the SA guidelines is not justified.
137 We do not consider that we should require the separation of the noise levels. We have so concluded for two reasons. First, we accept that the application of the 2003 SA guidelines has been and remains the proper assessment framework to apply in the assessment of this proposal as was set in the Director-General’s requirements. Second, separately, we also accept Mr Turner’s evidence that those guidelines are more stringent than the WHO recommendations and there is thus no need to go beyond the SA guidelines.
138 There was a difference of opinion as to how wind speeds should be referenced. Dr Tonin was of the opinion that they should be referenced at hub height according to the 2009 SA guidelines. Mr Turner contended that the referencing at 10 m above ground is in accordance with the 2003 SA guidelines and is also acceptable under the 2009 SA guidelines if acceptable wind shear models are used to calculate wind speed at hub height. However, both experts agreed that:
Referencing at hub height represents best industry practice because it makes no assumption about the value of the surface roughness coefficient for the locality nor of the variation in shear coefficient at different times of day or night.
139 In light of this agreement and no suggestion by Mr Turner, as we understood his evidence, that acceptable wind shear models were not to be used, we consider it appropriate for the conditions to provide that any additional noise modelling or recalculations required when the final turbine selection is made are to be referenced at hub height.
140 With respect to data analysis, both acoustic experts agreed that the Minister’s condition 2.15 be modified to require the proponent to undertake a revised noise assessment for the final turbine model conditions (including an assessment of the suitability of background noise level data to cover the range of wind speeds and directions generally expected at the wind farm site). This agreed position arose in response to the omission by MDA, in their preparation of the noise impact assessment in the EA, to follow the SA 2003 guidelines requiring wind speeds outside of the normal operating range of the turbines to be removed from the background data set.
141 In terms of noise mitigation, the experts agreed that the conditions of approval could be improved by the inclusion of a requirement that establishes a ‘Noise Operating Strategy’ that addresses any noise exceedences for the wind farm based on final turbine selection and layout.
142 They also recommended that condition 2.19 be improved by the inclusion of a requirement to confirm operation of the wind farm in accordance with any ‘Noise Operating Strategy’ developed in accordance with the revised condition 2.15 and a requirement to repeat the verification of the operational noise performance for any change in the ‘Noise Operating Strategy’. In their joint statement they recommend the following wording:
The proponent shall prepare a Noise Operating Strategy identifying specific methods of noise reduction based on the final turbine selection and layout for the various turbines which are predicted to result in noise levels exceeding the noise limits for the worst case wind directions at any receptor location. The Strategy shall include noise modelling verification demonstrating the noise reductions claimed can be achieved.
143 As this reflects the uncontradicted expert opinion, we adopt the agreed position and necessary relevant alterations are to be made to the conditions to reflect this.
144 A further issue between the acoustic experts was whether the accuracy of the ISO9613-2:1996 model as implemented in the MDA report [claiming an accuracy of +/- 3dB(A)] can be validly raised within the issue of noise mitigation. Dr Tonin contended that the MDA report and the method used to factor in acoustic screening would have under-predicted noise levels and therefore they could not be relied upon. He recommended the levels be re-calculated. Mr Turner believes that this is not a valid issue with respect to noise mitigation but considered the main issue of noise mitigation has been dealt with by the proposed changes to condition 2.15.
145 We accept Mr Turner’s position as, as we understand it, the proposed requirement for a Noise Operating Strategy will ensure that acoustic screening is adequate at the locations requiring it or operational restrictions would be adopted to deal with any inadequacies not rectified.
146 The experts were asked to consider the noise impacts of an alternative turbine, the 3.3MW Re Power MM104. Their modelling showed noise levels approximately 1-2dB(A) lower than predicted for the turbine models used in the EA (MM82 and MM92). They also stated that another turbine, the V90 3MW model exceeded noise levels by up to 5dB(A) at between 20 and 30 residences. As a consequence, they agreed that the conditions of approval requiring re-assessment following the final turbine selection were appropriate.
147 The final acoustic issue concerned whether or not acoustic reports prepared by the proponent ought be critically peer reviewed by an independent expert at the cost of the proponent. Dr Tonin agreed with such a requirement as he considered the matter to be of sufficient complexity to warrant an independent specialist. Mr Turner disagreed as he considered that there would be staff within the appropriate regulatory authority who could assess these matters and, if peer review was required, the responsible authority could seek that peer review. We accept the position adopted by Mr Turner, as the ability to assess such reports is a matter appropriate for consideration by the regulator. That body can determine, as and when necessary, if it wishes to commission such independent reviews.
617 As a consequence, particularly in light of the fact that the increased contribution levels we have determined will make it more likely that there will be the ability to enrol more households than previously anticipated (even if there is no financial contribution required from that household), such contributions are not to be a part of the scheme.
618 The second element of the proponent’s proposal that concerns us is it makes the provision of these alternative energy installations subject to uncertainty, in some fashion, by making it conditional on the extent of government subsidies or rebates available for this purpose. The social desirability (as well as the environmental desirability) of these installations should not be subject to such a linkage. As a consequence, the proponent's scheme, to ensure certainty for the local community, should also have this aspect removed. Again, because of the fact that there is likely to be significantly more money available for the scheme than would be provided under the proponent’s funding regime, we would not expect this uncoupling from government subsidy levels to make any significant difference to take up rates.
619 As a consequence of all the foregoing, the outline of a modified proponent proposal scheme can be derived from this decision (and reflected in the conditions) but we would expect that the final details of the scheme, including a process for calling of applications, assessment and prioritisation for access to funding from the scheme (if there were more applications in any year than there were funds available to support them) needs to be developed and approved by the Director-General. Such details of the scheme should include a basis for participation by the local community and by the council in the selection and prioritisation process and the conditions of consent are to reflect that this is to be a requirement of the scheme.
Structure of the acquisition condition
620 As we have concluded that the impact on a number of individual properties is sufficiently adverse that the proponent should either acquire them or delete specified turbines from the proposal, we have turned our attention to what should be the structure of the relevant condition to give effect to this position.
621 In considering this, we have had regard to the overall public policy desirability of renewable energy and the broad public interest matters associated with it (as discussed by Preston CJ in Taralga). However, we have also had regard to the legal principle of certainty in decision-making concerning conditions of development consent (see Mison v Randwick Municipal Council (1991) 23 NSWLR 734). In this instance, this is to be coupled with the social desirability of providing the maximum possible degree of certainty and predictability to the adversely affected landholders.
622 The Minister’s approval includes conditions 2.23 to 2.27 that set up an acquisition regime that applies only to Lots 5 to 12 of the Kings’ subdivision.
623 The Minister's acquisition condition is structured in a fashion that requires the proponent, if it has determined to proceed with any or all of the impacting turbines, to notify the owners (of the identified allotments in the King subdivision) at that time of that fact. If such notification is given to those owners, those owners may, within one year from the date of that notification (provided that neither the wind farm development consent nor the subdivision development consent had lapsed or been surrendered within that period), the proponent shall acquire the property or properties of which such notification has been given if the proponent intends to proceed with any or all of the impacting turbines. If such written request is made, the proponent is required to make a binding written offer to acquire the requested lands on a valuation and other costs basis set out in the conditions. A process is then set out that would permit the determination of an acquisition price if the proponent and the relevant land owner were not able to reach agreement on the terms for acquisition.
624 The Director-General's environmental assessment report was provided to the Minister, under cover of a departmental briefing note recommending that the Minister approve the proposal in the form to which her consent was given. At page 34 of the Director-General's assessment, the discussion set out below occurs relating to subdivision impacts. The discussion is in response to a submission made by the Kings. Although the council had provided information to the Department indicating that two properties in the vicinity of the proposed wind farm had received subdivision approval the second (obviously the Christie property) is not discussed and no consideration is given to impact on the Christie property in the Director-General's assessment report.
625 The discussion concerning the King's subdivision is in the following terms:
- On 24 July 2008, Upper Lachlan Shire Council issued development consent for a 20 lot subdivision with site-specific dwelling entitlement for land adjacent to the Pomeroy West portion of the project. Five Lots have dwelling sites within 250-800 m of planned turbines POM_20, POM_19, POM_16, POM_15, POM_14, POM_13 and POM_12. Potential environmental impacts to the proposed subdivision including and visual impacts have not been addressed by the Proponent.
- The Department considers that the proximity of turbines to the approved subdivision lots will severely affect the identified and approved dwelling sites, resulting in significant amenity impacts. Mitigation is suggested in the Proponent’s Statement of Commitments (being “reasonable and feasible noise mitigation measures to achieve a criterion (LAeq 10) of 30dB(A) inside bedrooms for no more than one dwelling on each parcel of land) are not considered by the Department to be sufficient to adequately address these amenity impacts. Therefore the turbines should either be deleted from the proposal or the Proponent should be required to acquire eight affected lots of the owner's request. The Department proposes that the Proponent be required to acquire the affected lots if requested by the owner, and recommends imposition of conditions of approval accordingly. The acquisition conditions would only take effect if the Proponent proceeds with the turbines in question, thereby allowing the Proponent to effectively delete these turbines (ie choose not to proceed) as an alternative to the acquisition.
626 The Ministerial briefing note recommending approval (to which the Director-General's assessment was appended) effectively incorporated the salient elements from the Director General's assessment report.
627 The Director-General's assessment report includes a footnote noting that the five lots mentioned in the second sentence are Lots 6, 7, 8, 9 and 10 in the King's subdivision. There is no detailed assessment for each of these lots nor is there any explanation of how the five lots in this sentence become the eight lots identified in the second paragraph – an expansion that led to Lots 5, 11 and 12 being incorporated in the acquisition conditions. It is, therefore, necessary for us to conduct, as best we are able on the evidence available to us, an assessment of the impacts of the wind farm on each of these eight allotments and reach a conclusion as to whether or not any or all of them should remain subject to a requirement for acquisition by the proponent.
628 We have not considered any submission that may have been made by the Kings because it is obvious from the Director-General's assessment report and the briefing note to the Minister that the individual submissions were not provided to her and did not, therefore, form part of her decision-making process.
629 In the alternative, the Kings propose alternative conditions with a more complex timeframe for compliance. For reasons discussed in the following portion of the judgment, we do not set them out in full.
630 The Guardians have adopted the Kings’ proposed acquisition regime for general application.
631 The limit that the Minister has imposed on the validity of the approval is in the following terms:
- This approval shall lapse five years after the date on which it is granted unless the Proponent has confirmed to the satisfaction of the Director-General that orders have been placed for wind turbines, or demonstrated that work subject of this approval has been completed on the site before that time.
632 We have concluded that:
- it is desirable that there be a single acquisition condition applying to all properties that are contained in the acquisition schedule although, as later discussed, the proponent is to be given a choice between acquisition or deletion of the unacceptably impacting turbines;
- although the Kings’ acquisition conditions were adopted by the Guardians as an alternative to the Minister's condition, we consider that the Kings’ conditions themselves, if applied generally, would also fall foul of what we regard to be the significant structural defect of the Minister's acquisition condition – that is the potential open-ended nature of the time period for which such a condition might run;
- the Minister's condition is one which leaves, when considered in conjunction with the lapsing condition for the consent, far too much of the burden of uncertainty as to acquisition for landholders whose properties, in whole or in part, fall within the acquisition clause.
633 Although we are satisfied that the five years provided by the Minister's lapsing condition does not cause uncertainty whether this time period is too long is a matter discussed below, the two exceptions to the time lapsing being triggered (placing an order for turbines or the completion of work encompassed by the consent) are resplendent with uncertainties.
634 There is nothing in the evidence that would indicate that there might be any guaranteed time limits for delivery of turbines after an order were to be placed for them. Second, the expression “work subject of this approval has been completed on the site” in the condition, could merely, understanding of the way the condition is written, be satisfied by construction of portion of the access road network within the wind farm (for example). Either of these processes could contribute to a further significant period of time within which landholders who are listed in the acquisition of schedule would be left with the uncertainty of whether or not the project would proceed.
635 The extent of this potential uncertainty is, in our view, entirely unreasonable. Whilst the totality of the economic risk, obviously, lies with a combination of the proponent and those properties whose owners have chosen to be associated with the project, it would seem to us that the significant, if not total, social uncertainty lies with the landholders in the acquisition schedule and, to a very limited extent, in their slipstream, other landholders in the vicinity (whether participating in the proceedings and excluded from the acquisition schedule or otherwise); the broader local community; and the council. As a consequence, we consider it appropriate to fix a period of time as the outer limit within which the proponent must choose between commencing an acquisition process for any of the properties in the acquisition schedule where the proponent does not elect to delete the unacceptably impacting turbines.
636 However, in considering how much time should be given to the proponent before the self-executing turbine deleting condition discussed below is triggered, we are also mindful of a number of other factors that weigh in the proponent’s (or society’s) favour in making the time period for these decisions by the proponent more lengthy than might ordinarily be the case. Primary amongst these reasons is the social and environmental desirability of encouraging renewable energy. Although, at the present time, there is a Commonwealth government proposal to promote the desirability of projects such as this by amendments to the Commonwealth renewable energy targets, there is some degree of political uncertainty presently attendant on this legislation. In addition, there is, in our view, a reasonable expectation that the present global financial position might have impacted on the viability of a project such as this.
637 Although these specific uncertainties have an element of speculation attached to them, the broader social desirability of encouraging investment in renewable energy, as discussed by Preston CJ in Taralga warrants that, setting aside any speculative barriers, a significant period of time should be allowed for the proponent prior to any self-executing turbine deleting provision being triggered with respect to any or all of the properties on the acquisition schedule. It is for that reason that we have set an absolute time limit of four years from the date of the Minister’s consent as the period within which such decisions are required to be made.
638 It may be that there is some combination of the various alternatives between acquisition of all of the unacceptably impacted properties or, at the other end of the spectrum, removal of all of the turbines identified by us as requiring it. That is a matter about which the proponent should have sufficient time to undertake an assessment and make a determination but not such an unlimited time as to leave a Damoclean sword hanging over individual landholders and denying them any reasonable degree of certainty about their economic and property utilisation futures.
639 We have endeavoured to balance the competing interests earlier referred to by structuring an outline of a condition to apply to each property in a fashion that will leave the choice of whether or not the nominated turbines (that create the unacceptable impacts in each instance) should be deleted as a choice residing with the proponent whilst providing a self-executing element that will ensure that such consideration by the proponent is not allowed to drag on unreasonably.
640 As a consequence, we have concluded that, with respect to each of the properties that we have identified as being subject to unacceptable impacts occasioned by nominated turbines, a condition is to be incorporated in the terms of the consent (for each such property) to require that, if the proponent has not initiated the process provided elsewhere in the conditions of consent for the acquisition of the nominated property within four years of the date of the Minister’s consent or prior to commencement of any construction activities in the relevant sector of the proposal (whichever is the earlier date), the nominated turbines identified as causing an unacceptable impact on that property are deleted from the development consent.
641 In addition, if the proponent has initiated the acquisition process within the four year period discussed above and the owners of the relevant property indicate that they do not would wish their property to be acquired or fail to indicate that they do wish to have their property acquired within three months of the commencement by the proponent of the acquisition process for that property, the requirement to acquire that property or delete the nominated relevantly applicable turbines is to lapse.
642 Incorporating self executing conditions of this nature with respect to each of the properties unacceptably adversely affected by turbines will enable the proponent to make an economic assessment of which course of action is appropriate for it with respect to each of the properties and, on a cumulative basis, over the totality of the project.
643 If the combined effect of these conditions, in whatever permutations and combinations considered by the proponent, renders the proposal economically unviable, matters concerning which are not within the evidentiary scope of the proceedings, we do not consider it inappropriate that the outcome would amount to constructive refusal of the proposal. We have considered this prospect and have concluded, as is conventionally the case where adverse impacts are not sufficient, in each individual instance, to warrant refusal but cumulatively do so, that this would be an appropriate consequence that we have anticipated might occur without knowing, expressly, whether it would occur.
644 Further, although we understood that the proponent had conceded that it should be required to acquire a number of allotments in the Kings’ subdivision (although not to the extent pressed by the Kings) and, later, after further consideration of the evidence as it unfolded during the proceedings, acquisition of the Daniel Hewitt property was also appropriate, we consider that conditions in the form discussed above should also be applied to each of the these property interests so that the proponent can consider the full range of options of acquisition or turbine removal that arise from the findings concerning unacceptable impacts detailed above.
645 The final form of this condition is to be settled between the parties with recourse to us if there are drafting disputes making this necessary. We do note that we consider that the conclusions we have reached are sufficiently precise (thus restricting the parties’ discussions to the terms of language rather than outcome to be achieved) so that this determination is not one of the nature discussed by Biscoe J in RES Southern Cross Pty Ltd v Minister for Planning and Anor [2008] NSWLEC 332; (2008) 166 LGERA 116 – indeed, we have expressly endeavoured to take it outside the scope of any imprecision of this nature.
Conclusions
646 The summary at the commencement of this judgement sets out, briefly, the outcome of the matters that we have needed to consider. These conclusions are intended to be a modest expansion of that so that those who wish to understand the outcomes can do so without being required to digest the totality of what is, in a merit appeal in this Court, an unusually lengthy judgment.
647 First, we have considered the various issues that were raised about the methodology and outcomes of the noise assessment and we have concluded that there is no basis upon which we could require changes nor was there any inadequacy of any material nature in the original assessment process. However, as the experts agreed on some changes to the conditions of consent, we are satisfied that it is appropriate to incorporate their agreed conditions in the conditions of consent.
648 With respect to construction impact issues along the Crown road in the vicinity of Gurrundah Creek, we have concluded that there is no Aboriginal cultural issue requiring our intervention. However, we have concluded that additional conditions are necessary to respond to the possibility of contamination in the vicinity of the former sheep dip site. We have also concluded that, on the uncontradicted evidence of Mr Phillip Price and his observation of platypuses in this vicinity, a precautionary approach should be adopted and further investigation undertaken to ensure that the Director-General is satisfied that appropriate steps are taken to protect the platypuses if this is necessary.
649 With respect to the visual impact of the proposed wind farm on the public domain, we have concluded that there are no individual viewing points from the public domain that would require any modification to let alone refusal of the proposal. In addition, for the reasons outlined, we are satisfied that there is no cumulative visual impact, even for a person driving from one end of the wind farm to the other, that would warrant modification to or refusal of the wind farm. There are no shadow flicker or unacceptable noise impacts on the public domain.
650 As part of the public domain visual impact assessment, we have also concluded that, if aviation hazard warning lights are required in future, that is not a factor that would alter our conclusion concerning the acceptability of the proposal when viewed from the public domain. However, the possibility of a requirement for the installation of aviation hazard warning lights is a matter that is relevant for consideration for a number of the individual landholdings where the existing dwellings or possible future dwellings would be closer than 2 km to turbines that would be so lit.
651 Near the commencement of this decision [at (47)], we noted that there was at least one significant difference from the circumstances with which Preston CJ was faced in Taralga. We noted, inter alia, that, in the Taralga wind farm proceedings, rural residences, on non-associated properties, were comparatively sparse and spread out and, because of the Cockbundoon Range to the east of the proposed Taralga wind farm, there were very few residences on rural properties to the east of the most easterly line of turbines of that proposed wind farm. As a consequence, the number of properties or individual allotments requiring assessment was small. Here, we have had to undertake over 40 separate assessments of properties or individual allotments – most of which are closer to proposed turbines than virtually all (but not all) the non-associated properties that required individual assessments in Taralga.
652 These properties have comprised the various landholdings nominated by the Guardians (some of which had more than one dwelling or dwelling entitlement) and the Kings’ landholding that is the subject of separate proceedings. In addition, we have also included in this individual property assessment a further small landholding, that where dwelling B33 is located, in the south-eastern area of the northern section of the proposed wind farm.
653 As a consequence of the hearings, the proponent agreed that it was prepared to offer to acquire two parcels of land. Those comprised in the Daniel Hewitt landholding and Lot 5 of the Christie subdivision (although this later agreement is not appropriate to be reflected in the acquisition schedule based on our merit findings). With respect to the Kings’ landholding, the proponent agreed that it should acquire Lots 6, 7 and 8 but resisted any requirement that it should acquire any other allotments in this subdivision.
654 We have concluded that not all the Kings’ subdivision allotments that the Minister had included in her acquisition condition warrant such a requirement. However, we have also concluded that the acquisition of Kings’ subdivision allotments proposed by the proponent is inadequate. We have also concluded that unacceptable impacts warrant inclusion of seven other landholdings or allotments with dwelling entitlements in the schedule of properties in an acquisition condition.
655 Because we had no evidence about the consequence for the proposal if any individual turbines were required to be removed, we have concluded that the acquisition process should be structured so that the proponent can elect whether to acquire any or all of the unacceptably impacted properties or delete any or all of the relevant impacting turbines. Because of the number of additional acquisitions we consider are warranted, we propose that this alternative acquisition or turbine deletion regime should apply to all the landholdings we have identified as being subject to unacceptable impact of including those four parcels – Daniel Hewitt, and Kings’ Lots 6, 7 and 8 accepted by the proponent as being appropriate for acquisition (as such inclusion is also supported by our merit assessments). More generally with respect to the Kings’ landholding, we have concluded, for the reasons earlier outlined, that the allotments to be included in the acquisition schedule should be Lots 6 to 11 rather than the more limited number accepted by the proponent.
656 With respect to the issue of compensation for loss of land value or “blight”, we have respectfully adopted the position taken by Preston CJ in Taralga that there is no lawful basis for requiring such compensation. We have also concluded that expectation of subdivisibility is, like any other development process, subject to constraints that arise from the nature of other approved development in the vicinity of any proposal.
657 Theoretical subdivisions, as opposed to approved subdivisions that have already undergone the planning approval process, may well be limited by the proposed wind farm, if constructed, but that is a development constraint that will arise from a lawfully approved development on an adjacent property. In this regard, there is no relevant difference between constraints arising from the wind farm compared to those that would arise from the necessity to protect endangered ecological communities or riparian corridors or sensitive landscapes (in a rural context) or heritage buildings or protection of solar access or acoustic and visual privacy of neighbouring properties (in an urban development context).
658 We have, therefore, concluded that no modification to or refusal of the proposed wind farm would be appropriate because of loss of subdivision potential (although we do accept that, in a number of instances, such subdivision potential is likely to be impacted). Similarly, for the reasons outlined in summary above, issues of compensation do not arise for legal reasons as well as on the merits concerning this topic.
Acquisition and impacting turbines table
Property to be acquired or turbines to be removed B33 BAN_20, BAN_21, BAN_22 Daniel Hewitt BAN_22, BAN_23, BAN_24 G & S Price-Jones BAN_14, BAN_15 Johnson POM_01 Kings’ Lot 6 POM_12 to POM_16, POM_19, POM_20 Kings’ Lot 7 POM_12 to POM_16, POM_19, POM_20 Kings’ Lot 8 POM_12 to POM_16, POM_19, POM_20 Kings’ Lot 9 POM_19, POM_20, POM_21 Kings’ Lot 10 POM_19, POM_20, POM_21 Kings’ Lot 11 POM_19, POM_20, POM_21 Montgomery (B121a) BAN_24 Montgomery (B122a) BAN_29 Picker-Wales BAN_22, BAN_25, BAN_26
659 Although we have not included the Humphrey and Jennifer Price-Jones landholding in the acquisition schedule, we have concluded that, if BAN_14 and BAN_15 are not deleted from the proposal and aviation hazard warning lighting were to be required in the future, the conditions are to require that the acquisition conditions would be triggered for this landholding at that time.
660 In addition, the property acquisition clause is to be structured so that if the proponent initiates the acquisition process but the property owner either indicates, expressly, that acquisition is not required or fails to indicate, within the nominated period then the requirement to acquire that property or delete the turbines impacting on that property will lapse. If any acquisition is not commenced within four years of the date of the Minister’s consent, a self-executing condition is to delete the relevant unacceptably impacting turbines.
661 We have rejected, for two reasons, giving any weight to the council's DCP and the numerical prescriptions in it. First, there is no statutory requirement for us to do so. Second, although it would be possible to have regard to the document as part of the broad public interest, the evidence given concerning the adoption of the numerical limits was exposed as being inaccurate and without foundation. The numerical limits in the DCP could, therefore, only be considered to be arbitrary and certainly could not be considered as being satisfactorily derived in the fashions for either a DCP or a council policy discussed by McClellan CJ in Stockland Development v Manly.
662 We have rejected two additional conditions proposed by the Kings – those seeking to impose a buffer utilising any land acquired from them by the proponent and a proposal for covenants preventing future intensive animal husbandry activities of any sort on any part of the Kings’ land acquired by the proponent.
663 We have determined that changes should be made to the landscaping condition to align it, generally, to the approach to this issue taken by Preston CJ in Taralga. Although this does not precisely reflect the changed landscaping clauses proposed by the Kings, our approach is responsive to some elements they suggested.
664 Finally, with respect to the community compensation scheme, we have concluded that there is no rational basis upon which visual or any other impacts and hence compensation, can be linked to the generating capacity of a turbine. As a consequence, we reject the formula proposed by the council and adopted by the Minister. Adopting what appeared to be an arbitrary figure, as the proponent did for the Cullerin Range wind farm, is an equally unacceptable approach. However, we are prepared to accept that the proponent, in reaching its conclusion about what might be an appropriate compensation amount for the Cullerin Range wind farm should be assumed to have had some regard to the number of turbines were proposed for that wind farm.
665 We have, therefore, adopted the relevant per turbine per annum amount that is derived from the Cullerin Range wind farm as being appropriate for this wind farm. That will result in a significant increase in the size of the fund compared to that suggested by the proponent but not to the extent required by the present conditions. We have preferred, in general terms, the proponent’s model for application of the funds in this scheme (where benefits can go directly to affected households and in a fashion sympathetic with and supportive of renewable energy with any unexpended monies in any year to be applied to the council's own fund). However, we have concluded that the proponent’s elements that involve attraction of or reliance on accessing government subsidies or which require co-contributions from beneficiaries are inappropriate and should be deleted.
666 As the conclusions we have reached require changes to the Minister’s conditions, we have considered how the three proceedings should be determined. It seems to us that each of the three appeals requires to be upheld, to some extent, at least. However, there is utility, in our view, in each appeal having common orders – namely that:
- The appeal is upheld;
- The conditions in Schedule 2 to the project approval by the Minister for Planning dated 26 June 2009 for Application No: 07_0118 are modified so that the project is now subject to the conditions in Annexure A; and
- The exhibits are returned.
667 To permit this to occur (and to permit the parties to propose alternative orders if so desired), the matter is set down for further hearing on the wording (but not the substance) of the conditions at 9 am on Thursday 27 May – if required. In the meantime, the Minister’s representatives are to draft conditions to reflect the terms of this decision and discuss them with the other parties. If no party wishes to propose alternative orders and agreed conditions are filed, in hard copy and electronically by e-mail to the Court marked to our attention, by the close of business on Tuesday 25 May, we will make orders in chambers and vacate the mention.
Tim Moore Judy Fakes
Senior Commissioner Commissioner of the Court
19/08/2010 - 1. Paragraph inadvertently included - paragraph paragraph deleted2. Incorrect geographic reference - south-eastern corrected to north-eastern - Paragraph(s) 1. 1482. 427
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