Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd - [2007] NSWLEC 59

No judgment structure available for this case.

Reported Decision: (2007) 161 LGERA 1

Land and Environment Court

of New South Wales

CITATION: Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd [2007] NSWLEC 59
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
Taralga Landscape Guardians Inc
FIRST RESPONDENT
Minister for Planning
SECOND RESPONDENT
RES Southern Cross Pty Ltd

FILE NUMBER(S): 10196 of 2006

CORAM: Preston CJ

KEY ISSUES: Ecologically Sustainable Development :- designated development - electricity generating station - wind turbines - renewable energy - visual impact - noise impact - impact on flora and fauna

LEGISLATION CITED: Electricity Supply Act 1995 (NSW) Pt 8A
Electricity Supply Amendment (Greenhouse Gas Abatement Scheme) Act 2006 (NSW)
Environmental Planning and Assessment Act 1979 (NSW) s 5(a), 76A(7), s 79, s 79C, s 80, s 81, s88A, cl 89, Schedule 6, s 91, s 98
Environmental Planning and Assessment Regulation 2000 (NSW) cl 8J(4), cl 8J (6)
Land Acquisition (Just Terms Compensation) Act 1991 (NSW)
Renewable Energy (Electricity) Act 2000 (Cth)

CASES CITED: Genesis Power Limited & Anor v Franklin District Council [2005] NZRMA 541;
Tenacity Consulting v Warringah Council (2004) 134 LGERA 23 NSWLEC 140;

DATES OF HEARING: 04/09/2006, 05/09/2006, 06/09/2006, 07/09/2006, 08/09/2006, 01/11/2006, 03/11/2006, 06/11/2006, 10/11/2006.

DATE OF JUDGMENT:
12 February 2007

LEGAL REPRESENTATIVES:
APPLICANT
Mr R O'Gorman-Hughes (Barrister)
SOLICITORS
Storey & Gough
FIRST RESPONDENT
Mr P Clay (Barrister)
SOLICITORS
Legal Branch
Department of Planning
SECOND RESPONDENT
Mr A Pickles (Barrister)
SOLICITORS
Middletons Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

12 FEBRUARY 2007

10196 OF 2006

TARALGA LANDSCAPE GUARDIANS INC V MINISTER FOR PLANNING and RES SOUTHERN CROSS PTY LTD

JUDGMENT

PROLOGUE

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.

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.

3 Resolving this conundrum - the conflict between the geographically narrower concerns of the Guardians and the broader public good of increasing the supply of renewable energy - has not been easy. However, I have concluded that, on balance, the broader public good must prevail. The reasons for doing so are set out in the body of this judgment.

4 Having said that, as discussed in more detail below, these proceedings have resulted in a better development with greater environmental protection - including now providing a public “right to know” as the development unfolds.

5 Finally, as also discussed more fully below, the Court's role has enabled the inclusion of a range of conditions founded on the precautionary principle. These include, for example, new conditions to ensure measures are available to deal with any occurrences of threatened flora or grasslands if they are subsequently discovered during construction of the windfarm.

6 It is important to note that these conditions only emerged as a consequence of the third-party right of appeal to the Court - exercised by the Guardians - against the Minister’s approval of the project.

7 Whilst, no doubt, the Guardians will be disappointed with the Court's decision, their launching of an appeal and the Court's hearing and determination of it have made the development of this windfarm a significantly more environmentally responsible project than that originally approved.

8 In hearing and determining this appeal, I have been greatly assisted by Commissioner Moore.

The proposal

9 The proponent, RES Southern Cross, lodged Development Application 241/04 with Upper Lachlan Shire Council on 10 November 2004.

10 On 15 December 2004, the Minister for Infrastructure and Planning (the Minister) directed Upper Lachlan Shire Council (the Council) to refer DA 241/04 to the Minister for determination under s 88A of the Environmental Planning and Assessment Act 1979 (the Act).

11 RES Southern Cross seeks consent to construct and operate a windfarm at Taralga. Taralga is about 140 km south west of Sydney. It is 38 km east of Crookwell and 35 km north of Goulburn.

1. Construct and operate 69 wind turbines each consisting of a 65 m tower, nacelle and 3 x 45 m long fibreglass blades;

2. Construct a network of unsealed site tracks to access each turbine;
install a transformer unit next to each turbine;

3. Construct and operate an electrical substation and control building;

4. Construct and operate a network of 33kV underground electrical cables, connecting each turbine to the electrical substation;

5. Construct and operate 2 single overhead power poles linking the turbine rows to the electrical substation; and

13 On 1 March 2005, RES Southern Cross amended its application by reducing the number of wind turbines it was seeking from 69 to 62 because it did not have landowner's consent for 7 turbines which were proposed to be located upon a property known locally as “Omaru”.

The geographic context

14 The windfarm will be built along ridgelines that stretch about 11 km north to south across a number of privately owned rural land holdings and one parcel of vacant Crown land. These privately owned rural land holdings are described as “associated properties” (a concept discussed further below).

15 The associated properties and the parcel of vacant Crown land total about 3,830 hectares. The associated properties are located between about 3 km and about 7 km east of the village of Taralga.

16 The associated properties are known locally as “Circle C”, “Greenhills”, “Killarney”, “Montrose”, “Rossville”, “Selection”, “Summerlea”, “The Meadows”, “Tyrol” and “Woolbrook”.

17 Development is proposed to be situated at various locations on these associated properties and the parcel of vacant Crown land. The associated properties and the parcel of vacant Crown are largely surrounded by other rural properties.

18 There are 11 dwellings located within about 1 km of a turbine with 7 of these dwellings being located on associated properties.

Associated properties

19 The concept of associated property is relevant when addressing a number of the technical issues, particularly those of noise impact and its consideration against the South Australian " Environmental Noise Guidelines: Wind Farms " (2003) (“the SA guidelines”).

20 Although dealt with more fully when the issue of noise is discussed, it is to be noted that, as a consequence of the voluntary acceptance of a property owner of a commercial relationship with RES Southern Cross, a less stringent approach is taken with respect to impacts on such associated properties. Interestingly, as also discussed later, an academic study by Pedersen and Waye, “Perception and annoyance due to wind turbine noise – a dose-response relationship” (2004) 116 Journal of the Acoustical Society of America at 3460 shows that those who voluntarily accept a windfarm are less likely to react adversely to its noise impacts.

The planning framework

21 The proposal is subject to the Mulwaree Local Environmental Plan 1995 (the LEP), and Development Control Plan - Wind Power Generation 2005 (the DCP).

22 The land is zoned 1(a) - General Rural under the LEP. The proposed development is permissible with development consent as an innominate use under the LEP.

23 Although the DCP came into existence after this application was lodged, a number of its controls, as discussed later, provide some assistance in individual instances.

24 As a consequence of a direction under s 88A of the Act made by the Minister on 15 December 2004 and by the operation, at that time, of cl 89, Schedule 6 of the Act and cl 8J(4) and (6) of the Environmental Planning and Assessment Regulation 2000 (the Regulation), the development became State Significant Development under s 76A(7)(c) of the Act.

25 The development is designated development under cl 18 (1) (c) of Schedule 3 of the Regulation, being an electricity generating station which supplies or is capable of supplying more than 30MW of electrical power from other energy sources.

26 The development application was accompanied by a two volume Environmental Impact Statement – Taralga Wind Farm Environmental Impact Statement (the EIS) prepared by Geolyse and dated November 2004.

27 The development proposal constitutes integrated development under s 91 of the Act.

1. An Environment Protection Licence from the Department of Environment and Conservation under the Protection of the Environment Operations Act 1997;

2. A permit from the Department of Natural Resources under Part 3A of the Rivers and Foreshores Improvement Act 1948 for proposed works in the vicinity of the Wollondilly River;

3. A consent from the Upper Lachlan Shire Council with the concurrence of the Roads and Traffic Authority (RTA) under the Roads Act 1993 for proposed works relating to a public road; and

Roads Act

29 The Minister received general terms of approval from each of the relevant approval bodies indicating the terms under which they would be prepared to issue their permission.

30 The EIS indicated that, since the proposal would not impact on any matters of National Environmental Significance, an approval from the Commonwealth Minister for the Environment and Heritage under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) would not be required. The proposal was, as a consequence, not referred to the Commonwealth.

The Minister’s assessment process and determination

31 The application and the EIS for the development were publicly exhibited from 19 November 2004 until 31 January 2005.

32 Nearby landowners and occupiers were notified of the development application by letter in accordance with s 79 of the Act and the Regulations.

33 The development application was advertised in accordance with s 79 of the Act and the Regulations in the Goulburn Post on 19 November and 22 December, 2004.

1. The Department of Planning's Head Office, Sydney;

2. Upper Lachlan Shire Council's Head Office, Crookwell;

3. Upper Lachlan Shire Council's library, Crookwell;

4. Goulburn Mulwaree Council; and

1. Seven submissions from Government bodies (six State bodies and the Civil Aviation Safety Authority); and

36 In addition, two petitions were received during the exhibition period. One was in favour (signed by 168 individuals) and one opposed (signed by 113 individuals).

37 On 17 January 2006, the Minister approved the application under s 80 of the Act, subject to a broad range of conditions of consent.

38 The conditions included one deferring commencement of the consent until necessary approvals have been obtained for the construction of a transmission line to enable the connection of the windfarm to the electricity grid as this does not form part of the application. Such connection, as is proposed by RES Southern Cross, would be to the main State grid at Marulan.

39 The Minister required the removal of Row 1 (turbines TI to T4) and Row 13 (turbines T59 to T62) due to what the Minister considered were unacceptable visual amenity impacts. Although the Minister also did not give consent for Row 2 (turbines T5 to T8), he indicated that consent for them would be possible, subject to their relocation to address visual amenity impacts.

40 The Minister's determination was notified under s 81 of the Act by letter dated 30 January 2006. Two objectors were notified in a subsequent letter dated 13 February 2006.

41 An advertisement notifying the Minister's determination was placed in two local newspapers - the Goulburn Post (3 February 2006) and the Crookwell Gazette (7 February 2006).

The Guardians

42 This appeal has been brought by Taralga Landscape Guardians Inc, an incorporated community association, whose members reside in or around Taralga or who have landholdings in the village or in the immediate district. A number of them have businesses in the village. Some are not permanent residents but intend to be so in the future.

43 Not all objectors from whom evidence was heard were members of the Guardians.

44 The Guardians raise objections with respect to the impacts they say will be wrought on the village of Taralga and on the surrounding countryside (which impacts, they say, are contrary to the public interest) as well as putting, legitimately, a number of matters of specific individual impact on particular properties or dwellings.

45 On the other hand, evidence was also given by members of the community who supported the proposal and, as noted elsewhere in the context of the Minister’s assessment and approval process, public submissions have been made which both oppose and support the project.

The statutory basis of the appeal

46 The Guardians’ right of appeal arises pursuant to s 98(1) of the Act as the proposal is for designated development and the Guardians were an organisation which lodged an objection to the proposal.

Description of the view

1. A number of public and private perspectives in the village;

2. The Stonequarry Cemetery – about 5 km north west of the village;

3. The Hillview and Goulburn Roads intersection (4 [in black] and A [in red] on the map described in (62) below);

4. A vantage point to the north of the village on the Wombeyan Caves road;

5. A vantage point to the west of the village on the Crookwell road;

6. The location of turbine T 42 – being a location appropriate to gain some understanding of issues with respect to native grassland (an endangered ecological community potentially impacted by the development);

7. The Ross property (H 12) (also Ross [in red] on the map);

8. Ms Brown’s property (H13) (also 3A [in red] on the map);

9. Ms Alders’ property;

10. Cushendall vineyard (8A [in red] on the map);

11. The Polley property (14 [in red] on the map); and

48 The inspection also included a visit to the existing windfarm at Crookwell. Although this windfarm was not operating and it comprises a smaller number of turbines which are smaller in dimension than those proposed for Taralga and is not readily visible from the town of Crookwell, it did provide a useful broad landscape context for consideration of the much larger sized and numbered turbines proposed at Taralga.

Taralga and its setting

“The country around the present township of Taralga was first explored in May 1819 by Charles Throsby. The present site of Taralga was within grants given to James Macarthur and William Macarthur in 1824 and later.

The settlement at Taralga thus appears to have been a "private village" of the Macarthur family but by the late 1850s a town had developed. The economy of the town has been principally based on wool and sheep since its inception. Peak population was 723 in 1891. Taralga is 45km (28 miles) north west of Goulburn in the north west corner off the County of Argyle. It is 915 metres (3,000 feet) above sea level. The country is undulating with rich volcanic soil interspersed with rocky patches.

The town is attractively situated between three hills. Buildings are one or two storey, of local stone, wood or brick and dispersed. The openness of the town is further emphasised by a swamp area which effectively breaks the town in two. Two significant beautiful rows of poplar trees along Orchard Street cross this swampy area. This street has also fortunately seen the undergrounding of all electric wiring.

51 In addition, the Catholic Church in the village (the Church of Christ the King) was listed on the State Heritage register in April 2004. There is no suggestion that the proposal will have any specific impact on this heritage item.

52 The Stonequarry Cemetery, the Taralga courthouse and the Taralga war memorial were all listed on the Commonwealth Register of the National Estate. The concept of listing on the Register of the National Estate was repealed (as was the Register itself) by the Environment Protection and Biodiversity Conservation Act 1999 (Cth). These places have not been listed under Part 15 Division 1A of this new Act. However, there is also no suggestion that the proposal will have any specific impact on any of these items.

53 Although there are a number of dwellings in semi-rural settings reasonably close to the village, such as the Polley residence discussed specifically elsewhere, the village is, in general terms, a compact settlement.

54 Although not located in a geographically distinct valley, nonetheless, the surrounding topography is such that the village is effectively located on a gentle eastward facing slope of an elongated bowl in the regional landscape. Along the eastern rim of this bowl is the location of the windfarm.

55 Although the thirteen rows of turbines do not all have the same north-south axis, the overall general orientation of the proposal can be described as being on such an axis along a range of ridges so that, in some parts, at least when viewed from the village, the rows of turbines stand at least two deep in the landscape.

56 For reasons which will become obvious later, it is to be noted that Bannaby Road runs to the east from the village. It effectively divides the proposed windfarm into two (very roughly) equal portions of (again very roughly) equal elements of visual intrusion into the landscape.

1. The first shows the present landscape from that vantage point;

2. The second imposes the turbines but removes the intervening landscape elements by imposing a monochrome foreground; and

58 A number of photomontages were also prepared by objectors to give a perspective of the view from a specifically impacted location.

59 Whilst I do not accept that these photomontages (whether from RES Southern Cross or the objectors) are precise, they nonetheless provide between them a very useful collation of impressions of the proposal in a variety of settings.

60 It is not possible in this judgment to reproduce all of these photomontages. However, in order to present some sense of the proposal, the photomontage prepared for RES Southern Cross, as at the Hillview and Goulburn Roads intersection, has been attached in two images (as it is not possible to include it as a single image attached to this judgment). It shows the proposal looking to the north east from a point roughly equal to the proposal’s southern extremity.

61 Although not a perspective from the village itself, this photomontage has been included as it represents a “gateway” view of the proposal. Such a view would be one of the first public views of the windfarm from the predominant entry road to the village.

1. The location of the village;

2. The location of the various rows of turbines;

3. The support elements of the proposal (service roads, substations and transmission lines);

4. The location of various rural and semi-rural dwellings about which assessments of the proposals impact needs to be made;

5. The location of the rural dwellings on associated properties; and

63 Each row of turbines is numbered (from Row 1 in the south west to Row 13 in the north) and each turbine is also numbered (T1 at the southern end of Row 1 to T62 at the northern end of Row 13).

64 With one exception (a rural dwelling known as “The Farm”), these dwellings have been identified on the map with the letter “H” (for “house”) and a designating numeral – for example, the Ross house is marked as “H12”. When discussing later the impacts on certain dwellings, the relevant map citation will be given at the introduction of that discussion.

65 The rural properties named in paragraph 16 above are not to be purchased by RES Southern Cross. These properties are ones whose owners have agreed, on commercial terms, to host the various elements of the proposal. As a consequence of these commercial relationships between RES Southern Cross and those owners, these properties are designated as associated properties.

66 One further property, H3, (whose owners originally were objectors) is now an associated property as RES Southern Cross has negotiated to purchase it although it will not host any element of the proposal. This latter point is merely noted to permit understanding of the map.

Policy framework

Climate Change

67 Addressing the implications of climate change involves a complex intersection of political, economic and social considerations. It is widely recognised that the state of the global environment is in rapid decline, requiring an urgent response if the current quality of life enjoyed by most Australians is to continue and future generations are to have access to the resources of the present.

68 The Intergovernmental Panel on Climate Change (IPCC) has catalogued the increasing levels of atmospheric greenhouse gases and the processes affecting climate change in recent years. Its 2001 report compiles the research of hundreds of scientists around the world and is approved by the IPCC member countries, including Australia: Intergovernmental Panel on Climate Change, Climate Change 2001 – IPCC Third Assessment Repor t . It estimates that the rate of global warming over the 20th century is much greater than in the previous nine centuries and it is considered likely that the 1990s was the warmest decade of the millennium. Over the twentieth century the global average surface temperature (the average of near surface air temperature over land, and sea surface temperature) has increased by 0.6 degrees Celsius (+ or - 0.2 degrees Celsius): Intergovernmental Panel on Climate Change, ‘Summary for Policymakers’, Climate Change 2001: The Scientific Basis , IPCC Third Assessment Report at 1.

69 The most recent IPCC Report, released earlier this month, makes it clear that the effects of human behaviour on climate change are impossible to ignore: Intergovernmental Panel on Climate Change, IPCC WGI Fourth Assessment Report, Climate Change 2007: The Physical Science Basis , ‘Summary for Policymakers’ (as at 8 February 2006). This IPCC report concludes that global atmospheric concentrations of carbon dioxide, methane and nitrous oxide have increased markedly as a result of human activities since 1750 and now far exceed pre-industrial values. It attributes these changes primarily to ‘fossil fuel use and land-use change, while those of methane and nitrous oxide are primarily due to agriculture’: at 2.

70 Although natural and human ecosystems are adaptive in nature, the rate at which the global climate is changing outweighs the rate at which these systems can adjust. Available data indicates that regional climate changes have already affected a wide range of physical and biological systems across the world. Examples given by the IPCC of the effects of climate change include the shrinkage of glaciers, thawing of permafrost, later freezing and earlier break-up of ice on rivers and lakes, lengthening of mid- to high-latitude growing seasons, poleward and altitudinal shifts of plant and animal ranges, declines of some plant and animal populations, and earlier flowering of trees, emergence of insects, and egg-laying in birds, as well as the death of coral reefs, atolls and mangroves. Although some species may thrive under the new conditions, many of these systems will be irreversibly damaged: Intergovernmental Panel on Climate Change, ‘Summary for Policymakers’, Climate Change 2001:Impacts, Adaptation and Vulnerability , IPCC Third Assessment Report, at 2.1-2.3. The most recent IPCC Report states that average Arctic temperatures have increased at almost twice the global average rate in the past 100 years: Intergovernmental Panel on Climate Change, IPCC WGI Fourth Assessment Report, Climate Change 2007: The Physical Science Basis , ‘Summary for Policymakers’, at 8. In Australia, the effects of global warming are likely to have serious effects on Australia’s natural environment, such as on the Great Barrier Reef.

71 Human systems are also vulnerable to the effects of climate change, especially in relation to water resources and agriculture: Intergovernmental Panel on Climate Change, ‘Summary for Policymakers’, Climate Change 2001: Impacts, Adaptation and Vulnerability , IPCC Third Assessment Report, at 2.4. Many of these effects will be manifested in natural disasters including droughts, floods and avalanches. They will also have a disproportionate impact on impoverished people as those with the least resources have the least capacity to adapt: Intergovernmental Panel on Climate Change, ‘Summary for Policymakers’, Climate Change 2001: Impacts, Adaptation and Vulnerability , IPCC Third Assessment Report, at 2.8. In Australia, climate change seriously threatens to compound the desperate situation in Australia’s rural and drought-affected areas.

Energy Industry

72 The difficulty facing governments globally is how to deal with the implications of climate change while continuing to meet the needs of growing populations. In 2004, the net emissions of greenhouse gases in Australia are estimated to have been 525.7 Mt (CO2-e). By comparison, net emissions were 507.5 Mt in 2003 and 499.9 Mt in 1990. The energy industry is by far the largest contributor to greenhouse gas emissions. The combined energy subsectors (stationary energy, transport and fugitive emissions from fossil fuel extraction and distribution) accounted for 74% of the total emissions described above: Australia’s National Greenhouse Accounts - National Inventory Report 2004 (Revised) – Volume 1:The Australian Government Submission to the United Nations Framework Convention on Climate Change 2006 , Australian Greenhouse Office, Department of Environment and Heritage at 2. Compounding this situation is that in the past two decades electricity demand in Australia has almost doubled: Securing Australia’s Energy Future , Australian Government, 2002 at 37. In addition, the projected electricity needs of the population indicate further growth of 50 per cent in the period prior to 2020, making large-scale new developments in infrastructure and energy resources a necessity: Securing Australia’s Energy Future , Australian Government, 2002 at 2.

Sustainable Development

Intergovernmental Agreement on the Environment

World Conservation Strategy: Living Resource Conservation for Sustainable Development

74 The attainment of intergenerational equity in the production of energy involves meeting at least two requirements. The first requirement is that the mining of and the subsequent use in the production of energy of finite, fossil fuel resources need to be sustainable. Sustainability refers not only to the exploitation and use of the resource (including rational and prudent use and the elimination of waste) but also to the environment in which the exploitation and use takes place and which may be affected. The objective is not only to extend the life of the finite resources and the benefits yielded by exploitation and use of the resources to future generations, but also to maintain the environment, including the ecological processes on which life depends, for the benefit of future generations. The second requirement is, as far as is practicable, to increasingly substitute energy sources that result in less greenhouse gas emissions for energy sources that result in more greenhouse gas emissions, thereby reducing the cumulative and long-term effects caused by anthropogenic climate change. In this way, the present generation reduces the adverse consequences for future generations.

Renewable Energy

75 Renewable energy sources are an important method of reducing greenhouse gas emissions and preserving traditional energy resources for future generations. To facilitate this objective the Australian Government has adopted a Mandatory Renewable Energy Target which commenced on 1 April 2001. The Renewable Energy (Electricity) Act 2000 (Cth) requires the generation of 9,500 gigawatt hours of extra renewable electricity each year by 2010. This target aims to meet the residential electricity needs of four million people: Senator the Hon. Robert Hill, ‘Mandatory Renewable Energy Target to Continue’ , Media Release , 16 January 2004.

Electricity Supply Act 1995

(b) by providing a scheme for the recognition of activities that reduce or promote the reduction of greenhouse gas emissions and enable trading in, and use of certificates created as a result of those activities for the purpose of meeting greenhouse gas benchmarks, and

(c) by imposing penalties for failure to meet greenhouse gas benchmarks in any year”: Electricity Supply Amendment (Greenhouse Gas Abatement Scheme) Bill 2006, Explanatory Notes.

77 The scheme, as originally enacted, had effect until 31 December 2012 as State greenhouse gas benchmarks that are the basis of the scheme were set until that date.

Electricity Supply Amendment (Greenhouse Gas Abatement Scheme) Act 2006

“(a) to provide for the extended operation of the scheme from 2012 to 2021 and beyond or until a scheme with similar objects is established on a national basis or in this jurisdiction and at least one or more other States or Territories, and

79 Wind energy has emerged as a potential source of renewable energy that may assist in lowering the amount of greenhouse gases emitted in Australia each year. Wind energy involves the emission of almost zero greenhouse gas emissions after the construction of the wind turbines: A. Wawryk, “Planning for Wind Energy: Controversy over Wind Farms in Coastal Victoria”, (2004) 9 The Australasian Journal of Natural Resources Law and Policy at 104. A typical wind turbine can meet the energy needs of up to 1000 homes. A typical 50 megawatt (MW) windfarm in Australia can reduce greenhouse gas emissions by between 65,000 and 115,000 tonnes a year: National Code for Wind Farms – A Discussion Paper , Australian Government, Department of the Environment and Heritage, Australia’s Greenhouse Office, May 2006 at 6.

80 Unfortunately, all energy supply involves some level of environmental impact. Wind farm development in Australia has raised controversy in the community in relation to the positioning of windfarms, the noise levels created by the turbines and the impact the construction and operation of the turbines might have on local native flora and fauna.

81 It is common that the areas that are best suited to wind energy are also the most visually prominent locations. In constructing windfarms, it is necessary to go where the wind is.

Wind assets

“The wayward wind is a restless wind
A restless wind that yearns to wander”

82 The first step in identifying whether or not a particular location is viable for a windfarm in New South Wales is for a proponent to consult the New South Wales Wind Atlas 1999 (the Atlas). The Atlas was produced by the NSW Government’s Sustainable Energy Development Authority and is described as being “a snapshot of wind speed around the State”.

83 The atlas identifies a number of places, including the Southern Tablelands where this proposal is to be located, which are potential locations with sufficient wind resource available for the siting of a windfarm.

84 A further refinement in defining a potential wind resource involves consideration of the wind direction and strength mapping on a more localised basis. Such wind strength mapping was tendered in the evidence for the area around Taralga and to a distance of about 15 km to the east and shorter distances to the north, south and west.

85 That localised wind mapping shows, as is intuitively obvious, that the higher levels of wind availability are at high points in the landscape.

86 Critically for this application, this localised wind mapping shows that the wind resource is significantly higher to the east of the village than to the west. This explains the general rationale for the proposed windfarm’s siting. It also explains why RES Southern Cross did not consider that there was any alternative viable location to the west of the village. Had a site to the west been available, the windfarm would have been out of the broad visual catchment and outlook of the village which outlook, as earlier noted, is predominantly to the east.

87 Although the mapping shows there are other areas of significant and high wind availability in the vicinity of those locations upon which rows of turbines are to be sited under this proposal, there are several reasons why they have not been included in the proposal.

88 With respect to one property, “Omaru”, although there was some consideration of its inclusion (the details of the extent of that consideration being disputed by the property owner and RES Southern Cross), it is clear that that owner of “Omaru” was not prepared to become an associated property and host any turbines.

89 With respect to several other potential high value wind resource locations in the region to the east of the village, RES Southern Cross did not propose to include them for reasons of difficulty of access (even if they were available – availability being a matter which, I infer, was not explored by RES Southern Cross).

90 Although there were other areas with lesser but still apparently satisfactory wind resource available where additional turbines might possibly be located, they have not been included in the proposal and there is no necessity for me to consider why that might have been the case.

91 There are two generally prevailing wind directions in this district. The first is from the north west and the second is from the east. These wind directions also reinforce the suitability of the location and orientation of the turbines in this proposal.

92 I am satisfied, on the basis of the evidence of wind availability, if there is to be a windfarm within the Taralga locality, that sites to the village’s east, as exemplified by the present proposal, represent a selection of the sites with acceptable wind resources to support such an activity.

93 I am certainly satisfied that there are no other viable wind resources immediately to the west of Taralga which might offer an alternative range of siting options for such a proposal.

What the Guardians seek

94 As their primary submission, the Guardians seek that consent for the proposal be refused.

1. Consistent with Dr Lamb's evidence on visual impact discussed below, all turbines north of Bannaby Road should be deleted;

2. An additional noise penalty of 5 dB(A) should be imposed to compensate for a form of noise modulation known as the Van den Berg effect. This noise penalty would lower the permitted sound level at residences which were not on associated properties to 30 dB(A) in lieu of the level of 35 dB(A) otherwise permitted by compliance with the SA guidelines;

3. The adoption of a regime of financial compensation for “blight” on non-associated properties in the vicinity of the windfarm;

4. The deletion of various other turbines which have specific impacts on individual properties such as the Ross's property;

5. The Guardians seek a number of variations to the proposed conditions of consent. The conditions of consent were the subject of considerable discussion and evolution during the proceedings and are discussed as the relevant issue is considered below; and

What RES Southern Cross now seeks

96 RES Southern Cross now seeks reinstatement of the three rows of turbines which had being excluded from the Minister’s consent, consent to increase the maximum power of the generator in the nacelle of each of the turbines from 2.0 MW to 3.0 MW and a number of modifications to the conditions of consent. These are also considered as they arise below.

The Guardians’ issues

Visual impact on Taralga

97 The Guardians say that the insertion of 62 turbines into the landscape across the natural view corridors from the Taralga village fundamentally and unacceptably alters the setting of the village in its landscape. They say that the turbines are alien industrial structures which destroy the historical context and landscape setting of the village. They say that these impacts are unacceptable aesthetic alterations to the life of those living in the village.

98 The Guardians also say that the attractiveness of the village as a tourist destination will be significantly diminished by this alteration to its landscape setting thus leading to significant damage to the economic fabric of the village.

99 Finally, with respect to general matters concerning Taralga, the Guardians say that the tranquillity of the Stonequarry Cemetery - which was founded in 1865 and remains in use as the Taralga community cemetery – will also be unacceptably impacted as the tranquillity of its outlook, being an aspect to the east toward the windfarm, will be destroyed by the intrusion of turbines.

Visual impact on individual properties

100 The Guardians raise concerns about specific impacts on three classes of property in the vicinity of elements of the windfarm. The first class comprises properties outside the village where there are existing dwellings which the Guardians say will receive unacceptable visual intrusion from one or more rows of turbines.

101 The second class of properties comprises those with an existing dwelling entitlement but for which no development approval for a dwelling has been given.

102 The final class comprises those properties where the Guardians say there is the loss of the development potential that would otherwise arise because of subdivision of concessional allotments or subdivision of a more general kind permitted under the LEP.

Noise impact

103 The Guardians say that RES Southern Cross cannot meet, at a number of relevant receivers, the 35 dB(A) noise limit required by the SA guidelines. They say, as a consequence, the application should be refused.

104 The Guardians also say that the SA guidelines are inadequate as they do not apply an appropriate penalty for a form of noise modulation known as the Van den Berg effect.

Flora impacts

Orchid

Diuris aequalis

Native grassland

106 A threatened native vegetation association, known as Natural Temperate Grassland (the native grassland), would grow, if present, predominantly in the cleared grassed areas such as those adjacent to Row 8. The proposed location of a turbine of this row was visited during the site inspection.

107 The Guardians say that, if the native grassland be found there, clearing of it for the construction of access roads or turbine sites is an unacceptable impact. The Guardians say that there has been inadequate survey work undertaken by RES Southern Cross and that the application should not be approved until adequate surveys for the native grassland had been undertaken.

Fauna impacts

Birds

108 Issues relating to the bird strike impact of the turbines arise from the presence of a number of Wedge-tailed Eagles which live in the general locality of the proposed windfarm.

Bats

110 Two threatened species of bat, the Eastern Falsistrelle ( Falsistrellus tasmaniensis ) and the Yellow-bellied Sheathtail Bat ( Saccolaimus flaviventris ), live and forage in the vicinity of parts of the proposed windfarm, particularly in the woodland area associated with the ridge upon the top of which Row 6 is to be located. The Guardians say that there are unacceptable impacts on these animals which may arise as a consequence of the proposal.

111 The first is that there will be destruction of habitat area as a consequence of clearing for Row 6. The second is that there is a significant likelihood of unacceptable mortality of these animals caused by impact with the turbines.

Reptiles

113 If the native grassland does occur and is impacted by the proposal, such impacted native grassland would also have been the potential habitat for two threatened grassland reptiles, the Striped Legless Lizard and the Grassland Earless Dragon.

114 The Guardians say that, if the native grassland is found, clearing of it for the construction of access roads or turbine sites, may also have an unacceptable impact on these animals. The criticism of the adequacy of the survey work for identification of the native grassland carries through to the assessment of possible impacts on these reptiles.

Assessment of the issues

Visual impact

115 In considering the acceptability or otherwise of the visual impact of the turbines not only on Taralga village but also at a number of the individual properties whose owners have objected to the windfarm, I have had the assistance of what I saw personally during the inspection, the evidence of three visual impact assessment experts, being Dr Lamb on behalf of the Guardians, Mr Wyatt on behalf of RES Southern Cross and Mr Williamson on behalf of the Minister, as well as the expressions of concern from the objectors who gave evidence in the proceedings.

116 The insertion of windfarms into a rural landscape involves interrupting the rural and natural cohesion of that landscape.

117 In the case of Taralga, the orientation of the village, toward the east, results in the primary general outlook of the village being toward rural properties. The only present intrusions are roads, occasional dwellings, fence lines and the like which typify an agricultural landscape whose only substantial modification since European settlement has been extensive clearing and removal of native vegetation for the establishment of pasture lands.

118 Dr Lamb’s primary position is that no turbines ought to be permitted to intrude into this landscape. It was his opinion that the breaching of the integrity of this rural landscape represents an unacceptable impact on the collective outlook and setting of the village. It was his secondary position that, if there were to be a windfarm, to ameliorate the impact on the village, no turbines should be permitted to the north of Bannaby Road.

119 Dr Lamb also proffered a range of other options including options designed to ameliorate specific visual impacts on individual properties. Collectively, these might be described, in general terms, as cascading options.

120 The position adopted by the Minister in his consent, in requiring the deletion of Rows 1 and 12 and proposing the relocation of Row 2, was based on what the Minister had accepted was a desirable limitation on the cone of viewing of the windfarm from a notional viewing point in the village. This cone of viewing was limited to 80° thus requiring these alterations to the proposal.

121 The adoption of this cone of viewing and its transposition to the map involved an arbitrary selection of the angle of the apex of the cone and of the viewing point within the village from which it was to be measured. No firm justification was provided for this during the course of the hearing.

122 Mr Wyatt adopted the position that the totality of the proposal was acceptable whilst Mr Williamson broadly supported the proposal but suggested a number of options to ameliorate its impact if the Court considered that this was desirable. These options also included ones designed to ameliorate specific impacts on identified properties as well as also offering cascading options of a more general nature.

123 There was considerable discussion between these experts as to how the various landscape elements, and various locations, should be valued as part of a visual assessment process. This hierarchy of values, using a three-point hierarchy (low or moderate or high scenic quality), for example, ultimately is of little assistance as there was no agreement between the experts on a precise methodology for such classification. There was, however, a significant degree of agreement between the experts that the scenic quality of the landscape surrounding the village was at least moderate and, in some locations or from some perspectives, some portions of it might have a high scenic quality.

124 It seems to me that the threshold question to be considered for such a proposal is whether or not a first “breach” in the present general landscape should be permitted. Once such a breach is permitted, it is then relevant to turn to whether or not the extent of it should be limited, as a general question, and also to turn to the question of the impacts on individual properties.

125 Thus, it is appropriate to consider first whether or not the rural context of Taralga village requires its preservation without any wind turbines.

126 As earlier noted, in discussing the history and setting of the village, the National Trust has not accorded the rural landscape within which Taralga is located any particular intrinsic value of its own. Although the village's setting is noted as being rural, there is no suggestion that it is an iconic one or one warranting its own separate recording by the National Trust.

127 The intrusion of a single industrial structure (being a turbine) into this rural landscape would undoubtedly change the nature of the landscape viewed from the village. However, I do not consider, even having regard to the reservations expressed by Dr Lamb, that a turbine (even with its industrial connotation) would be so antithetic to the landscape, generally, or to the outlook from village, specifically, as to warrant its rejection.

128 Having concluded that one turbine breaching the landscape would be acceptable, it is therefore appropriate to turn to the question of whether or not the totality of that which is proposed is acceptable or whether it should be modified in some fashion.

129 I have considered whether I should approach this on an aggregation or disaggregation basis.

130 An aggregation approach would endeavour to determine, building on the present landscape, turbine by turbine, where one might reach a point of unacceptable visual impact (if one were to reach such a point short of the complete windfarm proposal).

131 A disaggregation approach would take the project and consider whether it is necessary or appropriate to remove elements of it if, in the first instance, one had reached a prima facie view that the present total project would have an unacceptable impact but that some lesser (but still viable) project might be approved.

132 Given that I have rejected Dr Lamb's starting point (that there should be no turbines whatsoever), the fact that this is a merits-review appeal against an approval by the Minister leads me to conclude that the disaggregation approach is the desirable one. Indeed, the Minister’s cone of viewing approach is, itself, a form of disaggregation assessment.

(a) the preferred modification option advanced by Dr Lamb would involve the elimination of all turbines north of Bannaby Road;

(b) the obvious corollary to this position would be the elimination of all turbines south of Bannaby Road;

(c) there is the cone of viewing option (whether the limited one adopted by the Minister in his conditions of consent or one which contracted the ends of the proposal even further); and

134 With respect to the first and second modification options, it is clear that adoption of either of them would constitute constructive refusal of the proposal.

135 Such constructive refusal is obvious from the evidence given by Mr Liebmann on behalf of RES Southern Cross about the number of turbines which are necessary for economic viability of the proposal.

136 Although information was provided to the Court which clearly showed that the output of each turbine varies according to its location (and thus with the strength of wind able to be accessed by it), it is clear that anything other than removal of a comparatively small number of turbines would render the project uneconomic.

137 Although the way the case was conducted makes it inappropriate for me to discuss the generating capacity of individual rows or individual turbines, I can state, as a generality, that the removal of the rows that are located where the local wind mapping shows that there is the greatest wind strength would also have the greatest impact on the viability of the proposal.

138 In this context, it is interesting to note that the recently released Stern Report ( Stern Review on the Economics of Climate Change , HM Treasury, London, 2006 includes academic research which shows that, if there was a greater element of “truth in costing” of carbon emissions, the economic viability of windfarms would approach or be better than that of coal fired generation of electricity: see Aligning Climate and Energy Policy: Creating incentives to invest in low carbon technologies in the context of linked markets for fossil fuel, electricity and carbon Report prepared by William Blyth and Kirsty Hamilton, April 2006 - particularly 1.1 and Figure 2. In addition, other research supporting this report shows that, over time, it is probable that the cost of generation capacity from windfarms, even without additional carbon emission pricing, will approach (and, indeed, may become less than) the cost of coal fired generation: Costs and Finance of Abating Carbon Emissions in the Energy Sector Report prepared by Dennis Anderson, Imperial College, London, October 2006 – particularly Table 1.1, Figures 2.2a, 2.2c, Table 3.1 and Annex 3.

139 As I am satisfied that the presence of at least some turbines in the Taralga village landscape is acceptable, following a path of modification leading to constructive refusal is inappropriate. I have so concluded because to grant a consent, knowing that it was an effective futility, would clearly be contrary to the proper function of the Court and contrary to the broad public interest in the establishment of viable renewable energy sources.

140 Moreover, I do not consider that the presence of turbines on only one side of Bannaby Road but not the other is justifiable on visual impact grounds. There is nothing about their presence on one side of the road which demands their absence on the other.

141 As earlier noted, the Minister's cone of viewing approach lacked any rational justification apart from having the effect of eliminating the outer edges of the rows of turbines. There would remain, on this approach, a broad sweep of turbines in the landscape only punctuated by a minor break to the north of Row 10.

142 Nothing that was said in the visual assessment experts’ evidence leads me to conclude that such marginal outer edge adjustment to the proposal achieves any particular benefit for the village and its outlook. Whether or not the turbines at the northern or southern end of the proposal should be deleted because of the impact on specific properties is a separate question dealt with elsewhere.

143 Finally, the option of creating a gap in the centre of the proposal by the elimination of Row 10 is, also, unless required by an unacceptable impact on a specific property, something which would provide little benefit to the outlook from the village.

144 In conclusion on this issue, there is no compelling general visual impact basis upon which to adopt any one of the four major modification options as there is no such option which would achieve both a significant visual impact benefit for the village and leave a wind farm which would be economically viable.

145 As a consequence, having accepted that the intrusion of turbines into the landscape is acceptable and that the various broad modification options requiring consideration are not viable, it follows that the choice lies between the whole project as originally proposed (including those turbines removed by the Minister) or no project at all.

146 This choice arises in a context where there is no compelling reason why there should not be some turbines in this landscape and where there is a significant public interest, in general terms, in adoption of alternative, more environmentally friendly, energy generation sources.

147 Although there will be change to the village's outlook, I am satisfied that the broader public interest must outweigh this impact.

148 I also note, in passing, that the controls in cl 8 of the DCP which relate to visual impact ((c), (i) and (k), at least) do not automatically reject individual windfarm proposals on the basis of visual impact.

149 Finally, although on a much more dramatic scale of change to the landscape, I should note that the visual impact elements of this case are, in effect, not dissimilar from those of ordinary consideration of view impacts in an urban residential context. The planning principles set out by Roseth SC in Tenacity Consulting v Warringah Council (2004) 134 LGERA 23, at paras 25 to 29, could equally be applied in this context. If they were to be applied, the project does not offend against them.

The concept of “blight”

150 The Guardians advance the proposition that a consequence of approval of the windfarm 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 windfarm 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 windfarm, 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.

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.

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”.

Assessment of impacts on individual properties

Ross property

161 The Ross property is located at the southern end of the proposal and would have views of Rows 2, 4, 5, 6 and part of Row 1 from the house (H12). The house is located toward the bottom of a valley. The house’s outlook is oriented to the north toward Row 5.

163 The house is significantly below the turbines to the north. Although the impact of the turbines in Row 1 is significantly diminished because of the topography between those turbines and the house and the orientation of the house away from them, the other turbines dominate the dwelling. Although not completely surrounded, the Ross house is sufficiently dominated by turbines because of the topography effectively to be surrounded by them.

164 The property has been subdivided to create three small concessional allotments on the higher south-eastern corner of the property.

165 Mr and Mrs Ross are in their seventies. They gave evidence and described their wish to retire and pass their property to the next generation. They saw the concessional allotments as being their superannuation and representing the opportunity to move to town.

166 There is no viable opportunity to ameliorate the visual impact on the Ross residence by landscaping. Although not conceded by RES Southern Cross, I did not understand this conclusion to be vigorously resisted by it.

167 Equally, it is clear from the table of generating capacity potential for each of the turbines that the elimination of the turbines which dominate the visual outlook from the Ross property would render the proposal unviable.

168 It is the agreed position of all parties to these proceedings that the most significant impact on an individual property is the impact on the Ross property.

Omaru

169 This property is located at the northern end of the proposal. Its dwelling (H1) has Row 13 immediately to its west, Row 12 a little further to its southwest and Row 11 somewhat closer to its south east. As earlier noted, RES Southern Cross had initially wished to include this property as part of the proposal.

170 This dwelling is also in a valley. Although not visited during the site inspection, it was observed from a little distance during the course of inspection. That observation and a number of photographs which were in evidence showed that the house is oriented to the north – that is, away from the proposal.

171 The owner of this property did not give evidence but correspondence was tendered on his behalf setting out his objections. Although there was some dispute as to the extent, if any, of discussions between RES Southern Cross and the owners of this property about the possible inclusion of project, it is not necessary for me to have regard to this.

172 It is agreed that there will be a significant visual impact on this dwelling. However, the acceptability of the impact is not agreed by the visual impact assessment experts. Essentially, Dr Lamb said that the impact is unacceptable and that the elimination of a number of turbines, principally Row 13, is required to ameliorate the impact.

173 Mr Wyatt disagreed and proposed that landscaping would render the proposal visually acceptable at this location.

174 I am satisfied that a combination of the orientation of dwelling away from the turbines, coupled with the fact that there is not the degree of dominance that exists for the Ross residence, means the visual impact can be rendered acceptable by landscaping. On balance, therefore, the imposition of a requirement that RES Southern Cross provide landscaping, if requested by the owners of this property, is an appropriate response for this impact.

Ms Brown

175 Ms Brown's house (H13) is located to the south of Row 6. Although the end turbines of this row (likely to be T20 to T22) will be visible from the house, they are some distance away. The local topography and orientation of the dwelling means that it is highly unlikely that other turbines will be seen from her house.

176 I am satisfied that, as a consequence of the separation between her house and Row 6, there will not be a significant overall visual impact on her dwelling.

177 However, Ms Brown will fall within a 2 km radius of the closest turbine and thus will be entitled to access the proposed landscaping provision regime. This is an appropriate response to the visual impact on this dwelling.

178 Ms Brown is also said to have development potential for an additional allotment which would be closer to Row 6 but protected from any view of these turbines by virtue of the likely building site being in a valley and protected by the spur running upward toward T20 at the end of Row 6.

179 Even accepting that this development potential exists, I am satisfied that there would not be an unacceptable visual impact on it from this proposal.

The Polley residence

180 The Polley residence (red 14 on the map) is located near the south-eastern outskirts of the village. It is set in an open rural landscape and is near to but just outside a 2 km radius from the nearest turbine.

181 The family are not permanent residents of the village but Mr Polley proposes to retire to the village with his family in the reasonably near future.

182 The outlook from the portion of the property visited during the site inspection will undoubtedly have a significant perspective of substantial elements of the proposal. The Court did not visit the house and thus is not aware of the orientation of the outlook of the dwelling on the property. In many respects, the visual impact on this property could be regarded as being analogous to that of the village itself. Similarly, the consequences of such visual impact should be treated in an analogous fashion.

183 To the extent that there is a difference, it is that the dwelling is not enfolded within a village setting and may have a significant orientation towards the proposal without having any sense of urban place to offset it.

184 As a consequence, although this dwelling is marginally outside a 2 km radius from the nearest turbine, it is appropriate under the circumstances, as a matter of discretion, that it be treated as if it were within such a radius for the purposes of access to landscaping. The conditions are to be amended to provide for this.

Cushendall Vineyard

185 This property (red 8A on the map) is a vineyard operated by Mr and Mrs Miskelly. The property does not presently have a dwelling on it. However, I am satisfied that it does have a dwelling entitlement.

186 The Miskellys have retired to the village where they own a house and have another small vineyard.

187 During the site inspection, the Court visited the property and was shown the general location of a proposed dwelling site. The leading turbine of Row 11 would be visible in a generally northerly direction from the dwelling site. Although the closest row is Row 10, the property is shielded from it by the intervening hillock to the west.

188 Although there will be some impact on the ambience of the vineyard itself, there is no sense that the vineyard would be dominated by the turbines although they are located in the obvious viewing orientation from the property.

189 This property is within a 2 km radius of the nearest turbine. Any future dwelling would not automatically qualify for access to the landscaping regime to be made available as no development has been approved.

190 However, I am satisfied that the more intensive vineyard development on this property compared to conventional grazing development elsewhere coupled with the clear present intention of the Miskellys to erect a residence (that clear present intention being absent for other vacant allotments) warrants a future dwelling being given a landscaping entitlement. I am satisfied that the separation from the nearest turbine coupled with the fact that it is a limited viewing of such turbines means that this is an appropriate response to the visual impact on this property. The conditions are also to be amended to provide for this.

Cloverlee

191 This property is owned by Mr Kerridge (it is marked with a blue K and red “Kerridge” on the map). There is no dwelling on this property. It is in a number of titles and, according to Mr Kerridge, has subdivision potential as well as existing rights to a number of dwelling entitlements.

192 Mr Kerridge owns other properties in the district. His wife also owns a number of properties in the village. Although they are not residents of the village, they have a local residence on another property further to the east. Mr Kerridge candidly admitted that a very significant part of the attraction of this property and others which he owns are their future development potential.

193 The property is located immediately to the south of Bannaby Road. It is in a slight valley falling to the south from the road. There is a rural shed currently located at the road frontage immediately below the site of Row 10 which is on the opposite side of the road.

194 Row 8 runs, effectively, parallel to and near the western boundary of this property. Row 5 is located directly down slope and in the centre of the natural southern outlook from the property. Rows 6 and 7, somewhat to the west, are also in the immediate visual catchment of the property.

195 RES Southern Cross tendered a diagram showing a potential house location which was more than 1 km from any turbine. It also showed the area on the property, including this site, which was at least 800 m from any turbine. RES Southern Cross and the Minister submitted that the Court should not regard this property as falling within the strictures of being surrounded by turbines thus calling up the provisions of the cl 8(k) of the DCP quoted above in the discussion of the Ross property.

196 I reject the proposition that any dwelling located on this site would not, it in a practical sense, be surrounded by turbines. The obvious aspect for a wide landscape view from any hypothetical dwelling is generally southerly. This aspect is dominated on each side and in its centre by turbines.

197 If a dwelling were to be constructed with a northerly aspect, this aspect would be dominated by the turbines of Row 10 which would be significantly above any such dwelling as a consequence of the sloping of the topography.

198 I am satisfied that the visual impact on any dwelling on this property will be quite significant. The appropriate planning response to this impact is one which needs to be considered in conjunction with the noise impact of the proposal on any hypothetical dwelling on the property.

199 Although it was suggested to me that such a house could, effectively, be constructed within what amounted to a vegetated compound to shield it from the visual impact of the turbines, I do not consider that such a design option which shut out all parts of the otherwise pleasant rural aspect would be appropriate.

Ms Alders’ property

200 This property was visited during the course of the site inspection and stops were made at three locations (red A1 to A3 on the map). The property is currently used for grazing purposes. The turbines of Row 13 are located immediately adjacent to the eastern boundary of the property. The turbines of Row 12 are located close to and above a valley following a creek line running through the property.

201 Ms Alders raises two concerns about the impact on the property. The first is her ability to manage her rural property as she presently musters her cattle on horseback. She is concerned that her horses will be spooked by the turbines.

202 With respect to this concern, although I have no direct evidence in these proceedings, I note that in Genesis Power Limited & Anor v Franklin District Council [2005] NZRMA 541, a windfarm case where equine issues were argued and evidence was available, the New Zealand Environment Court (at paras 129 to 170) concluded the proposed windfarm, subject to proper conditions of consent and proper management at the equine centres, was unlikely to cause effects on horses on adjacent properties which were more than minor.

203 Ms Alders is also concerned at the impact on the development potential of her property as she believes she has an entitlement to a number of concessional allotments from it.

204 The Court had some evidence about possible locations for dwellings on concessional allotments on Ms Alders’ property where they might not be impacted either visually or by noise. However, I do not consider that the turbines would have such an unacceptable impact on Ms Alders’ property as to require mitigation measures.

205 Any residual impacts are effectively encompassed by the concept of blight raised by the Guardians and rejected by me earlier in this decision.

Other properties without dwellings or dwelling approvals

206 Although they were not visited during the course of the site inspection, the Guardians have raised a number of other properties which they say will be visually impacted by the proposal.

207 No suggestion has been made, with respect to any of them, that there is any definite intention by the owner of any of those properties to construct a dwelling on it. There is, therefore, no reason, in my view, why they should have a landscaping exception made for them as has been made for the Miskellys.

208 Further, I am satisfied that such visual impact as might fall on those properties would also be encompassed within my rejection of the concept of blight.

Noise impact

209 Wind farms generate noise. That noise is potentially annoying to those who hear it.

“The general approach in setting noise criteria for new developments is to require compliance with a base noise level.

This base noise level is typically 5 dB(A) lower than the level considered to reflect the amenity of the receiving environment. Designing new developments at a lower level accounts for the cumulative effect of noise from other similar development and for the increased sensitivity of receivers to a new noise source.

The impact of a given noise is also closely linked to the amount it exceeds the background noise. For example, the same noise in a quiet rural area will generally have a greater adverse impact than in a busy urban area because of the masking effect of high ambient noise environments.

Noise Criteria

“ Background noise measurement locations

Background noise measurements should be carried out at locations that are relevant for assessing the impact of WTG [wind turbine generator] noise on nearby premises (relevant receivers).

Relevant receiver locations are premises:

(a) on which someone resides or has development approval to build a residential dwelling

(b) at which the predicted noise level exceeds the relevant base noise level for wind speeds (V10m) of 10 m/s or less

Background Noise

Background noise measurement locations

213 The exclusion of premises on the same land as the noise source is relevant to understanding the approach taken by these guidelines to associated properties.

“2.3 Agreements with windfarm developers

Wind farm developers commonly enter into agreements with the owners of private land suitable for a windfarm site. The agreement provides the windfarm developers with the appropriate siting and generally provides the landowner with a level of compensation and diversity in their income stream.

70 All roadwork is to be designed and constructed to Upper Lachlan Council’s version of AUS-SPEC Design and Construction specification or alternative specifications that meet the minimum requirements of AUS-SPEC. Detailed drawings of the access points along Bannaby Road must be approved by the Council prior to the commencement of these road works.

71 Prior to the commencement of Construction, site road work design and specifications shall be completed and certified by an appropriately qualified person that all roads within the site associated with the development are of an acceptable standard for traffic generating requirements of the development.

Road Maintenance

72 During Construction, designated gravel access roads shall be maintained in a safe and satisfactory condition at all times by the provision of regular maintenance and grading. The maintenance can be undertaken by the Applicant as a work in kind and/ or by Council at agreed rates.

73 During Construction, designated bitumen road access shall be maintained in a safe and satisfactory condition. Should any of the roads fail due to construction traffic, immediate maintenance must be undertaken by the Applicant as work in kind and/ or by Council at agreed rates to maintain the road in a safe trafficable condition.

74 Should Construction materials, such as road-base, be sourced locally, the access route must be jointly inspected with Council’s officers to determine the suitability of the route and the extent of improvement works required prior to Construction. Should the route be approved for use, maintenance of the route during Construction shall be undertaken in accordance with conditions 72 and 73.

Crown Roads

75 The Applicant must indemnify and keep indemnified the Crown and the Minister for Lands against all claims arising out of the use and occupation of the Crown Public Roads in relation to works associated with this development.

76 No works must be undertaken on any Crown roads until any necessary authorities, easements, licences or approvals, as required by the Department of Lands, have been obtained.

77 In the event of a transfer of ownership, the terms and conditions imposed by approval from the Department of Lands shall also apply to future owners of the development. Following a change of ownership, any existing tenures will be terminated and new tenures granted. The Department of Lands reserves the right to vary the terms and conditions of a new tenure or any authority or consent previously granted.

78 Public access along Crown roads must not be denied, impeded or obstructed when the development is completed. Alternative access is to be provided, if required, during the construction period.

79 The Applicant and any subsequent owner of the development must be responsible for the maintenance and rehabilitation of Crown roads used for access, construction and installation of works throughout the term of the occupancy.

80 Upon decommissioning of the project, or parts thereof, all structures and works on Crown roads must be removed to the satisfaction of the Department of Lands. A maintenance period of two years shall apply for the rehabilitation work after the works have been removed and the site associated with the development rehabilitated.

Operational Traffic

81 Prior to commencement of Operation, all works relating to permanent vehicle access to the site associated with the development must be completed. In the case of Bannaby Road, permanent access must be completed to the satisfaction of Council and comply with the following requirements:

82 The Applicant must, in consultation with the RTA and Council, identify any road safety changes along the Taralga Road, Bannaby Road, Old Showground Road, Alders and Crees Road that may have arisen during the first 12 months of Operation. Road safety changes must include, but not be limited to, any significant change in motor vehicle accident rates since the previous survey was undertaken. The Applicant must implement any reasonable and feasible mitigation measures as required by Council and the RTA, to address the road safety impacts that could be attributed to the development.

HERITAGE

Indigenous Heritage Management

83 In the event that an Aboriginal object (as described in the National Parks and Wildlife Act, 1974) or a relic is uncovered during the Construction, all work in the vicinity of the object must cease and the Applicant must contact the DEC as soon as practicable. The Applicant must meet the requirements of the DEC with respect to the treatment, management, and/or preservation of any such object.

Historical Relics

84 In the event that a non-indigenous heritage item is uncovered during Construction, all work in the vicinity of the object must cease and the Applicant must contact the NSW Heritage Council to determine an appropriate course of action prior to the recommencement of work in the vicinity of the item.

FLORA AND FAUNA

Construction

85 A Construction Flora and Fauna Management Sub Plan must be prepared as part of the CEMP. The Sub Plan must be prepared in consultation with the Department and must include but not be limited to:

(i) terrestrial vegetation communities; important flora and fauna habitat areas; habitat trees, locations where threatened species, populations or ecological communities were recorded; and areas to be cleared. The plans must also identify vegetation adjoining the development where this contains important habitat areas and/or threatened species, populations or ecological communities;

86 The Applicant must design, construct, operate and maintain the development in a manner that avoids damage to or loss of suitable habitat for Natural Temperate Grassland and the orchid, Diurus aequalis.

To ensure compliance with this condition, the Applicant must engage a suitably qualified person(s) who is to receive the prior approval of the Director-General, to undertake a detailed botanical survey, prior to the commencement of construction, of:

turbine rows 4,5,6, 7 and10; and

all access roads requiring construction or upgrading,

during the appropriate season (that is, November to December).

Where Natural Temperate Grassland or Diurus aequalis is found to occur either on, or adjacent to these locations, the area must be fenced during construction and that component of the development (including construction components) must be relocated at least 50 metres from the grassland or orchid population but no more than 250 metres from the original location of that component.

A report detailing the results of this survey, including details of any proposed relocation of infrastructure associated with the development is to be submitted to the Director-General within one month of completion of the survey. Construction must not commence until the Director-General has confirmed the results of the survey and approved the position of any relocated infrastructure (inclusive of any construction-related components).

Note: The Natural Temperate Grassland of the Southern Tablelands of NSW and the Australian Capital Territory Endangered Ecological Community “Natural Temperate Grassland” is defined under the Commonwealth Environment Protection and Biodiversity Conservation Act, 1999. The location of the turbine rows and the access tracks is as described in the EIS.
Where any component of the development is proposed to be relocated greater than 250 metres from its original position on the grant of consent, modification of the consent or further consent under the Act will be required.

87 The Applicant must design, construct, operate and maintain the development in a manner that avoids damage to and/ or loss of suitable habitat for the Striped Legless Lizard and the Grassland Earless Dragon.

To ensure compliance with this condition, the Applicant must engage a suitably qualified person(s) that is to receive the prior approval of the Department, to undertake a detailed survey of the site to determine the presence of such suitable habitat, so as to enable the Applicant, in consultation with the DEC and the Department, to locate infrastructure (including turbines, underground cables and power poles) and other elements associated with the development (such as access tracks and construction lay-down areas) at least 50 metres from these areas, but no more than 250 metres from the original location of that infrastructure or element.
Note: Where any component of the development is proposed to be relocated greater than 250 metres from its original position on the grant of consent, modification of the consent or further consent under the Act will be required.

88 Notwithstanding condition 87, where the Applicant is unable to avoid damage to and/ or loss of such suitable habitat in respect of the Striped Legless Lizard, the Applicant may seek the approval of the Director-General to damage and/ or destroy this habitat however, this loss must be suitably compensated. Any such compensatory works are to be implemented, in consultation with and to the satisfaction of the Department and DEC.

89 Prior to the commencement of construction, all vegetation and fauna habitat to be protected under this consent is to be fenced off with clearly visible, durable and appropriately signposted exclusion fencing to prevent uncontrolled or inadvertent access by vehicles or construction personnel.

90 To compensate for the loss of the existing forest/ woodland resulting from the construction of the wind turbine generators and access tracks on Row 6, the Applicant must reforest a similar-sized area to that which is lost, at a location not immediately adjacent to any turbine.

To ensure compliance with this condition, the Applicant must prepare and submit for the approval of the Director General, details of the habitat compensation plan. Construction activities at Row 6 must not commence until the Director-General has approved the plan. Following approval by the Director-General, the Applicant must implement the compensatory measures within such period as the Director-General may direct.

Operation

91 An Operation Flora and Fauna Management Sub Plan must be prepared as part of the OEMP. The Sub Plan must be prepared in consultation with the Department and include:

92 The Proponent must make a financial contribution of $1500.00 to the NSW Wildlife Information and Rescue Service (WIRES) for each death of a wedge-tailed eagle that has reasonably been attributed to the carrying out of the development. The financial contribution must be paid by the Proponent within one month of the Proponent becoming aware of the death. The contribution must be adjusted to take account of any increase in the Consumer Price Index over time, commencing at the March 2007 quarter.

93 Prior to the commencement of Construction, the Applicant must prepare and submit for the approval of the Director-General, a Bird and Bat Adaptive Management Program must be prepared and undertaken, which takes account of bird/bat monitoring methods identified in the current editions of AusWEA Wind Farms and Birds: Interim Standards for Risk Assessment (July 2005). The Program must be undertaken by a suitably qualified expert, approved by the Director-General.

The Program must incorporate Monitoring, and a Decision Matrix that clearly sets out how the Applicant will respond to the outcomes of monitoring. It must:

The Applicant is required to implement reasonable and feasible mitigation measures, to the satisfaction of the Director-General, where the need for further action is identified through the Bird and Bat Adaptive Management Program.

PHYSICAL ISSUES

Soil, Water and Riparian Management

94 The Applicant must not commence any works within 40 metres of a watercourse until a Permit under Part 3A of the Rivers & Foreshores Improvement Act is obtained from DNR.

95 As part of the CEMP, a Riparian Vegetation Management Sub Plan must be prepared and developed in consultation with DNR. This Sub Plan is to outline details of the protected riparian zone(s) including, but not limited to:

(a) requirements of the Permit under Part 3A of the Rivers & Foreshores Improvement Act, 1948 ;
(b) drawings demonstrating the locations and extent of the zone(s), remnant vegetation, and where areas will be revegetated/regenerated;
(c) plant species list to be utilised for revegetation; and
(d) maintenance and performance monitoring.

96 As part of the CEMP and OEMP, Soil and Water Management Sub Plans must be prepared in consultation with relevant government agencies. The Sub Plans must:

97 The turbines, substation and access tracks in high erosion hazard areas must be fenced off from livestock. The location of fencing and high erosion hazard areas must be identified in the OEMP.

98 Design and construction of any crossings over protected waters and riparian zones must be consistent with the Department’s Draft Guidelines – Watercourse Crossing Design & Construction and NSW Fisheries’ Why do Fish Need to Cross the Road? – Fish Passage Requirements for Waterway Crossings (2004) and Policy and Guidelines for Fish Friendly Waterway Crossings (2004).

99 Except as may be expressly provided by a licence under the POEO Act in relation to the development, the Applicant must comply with Section 120 of the POEO Act (prohibition of the pollution of waters), which prohibits pollution of waters.

Air Quality

100 The Applicant must design, construct, operate and maintain the development in a manner that minimises dust emissions from the site associated with the development.

101 The Applicant must take all practicable measures to ensure that all vehicles associated with the development entering or leaving the site and carrying a load that may generate dust, are covered at all times, except during loading and unloading. Any such vehicles must be covered or enclosed in a manner that prevents emissions from the vehicle at all times.

Spoil and Fill Management

102 For the purposes of the development, imported fill must be Virgin Excavated Natural Material as defined in the EPA’s publication Environmental Guidelines: Assessment, Classification and Management of Liquid and Non-Liquid Wastes.

MISCELLANEOUS REQUIREMENTS

Aviation

103 Prior to the commencement of operation, the following details are to be submitted to CASA, Department of Defence, and the Australian Aerial Agricultural Association:

(a) ‘as constructed’ coordinates of the wind turbines in latitude and longitude;
(b) final height of the wind turbines as per AHD;
(c) ground level at the base of each of the wind turbines as per AHD; and

104 In the event that required aerial weed control and/or fertiliser application is restricted on any property surrounding the site due to the location of turbines, the Applicant must fully fund the cost difference between aerial weed spraying/fertiliser application and a reasonable alternative weed control/fertiliser application method in the restricted area, unless otherwise agreed to by the Director-General.

Hazards
Bush Fire Fighting

105 As part of the CEMP, the Applicant must provide details of measures to prevent fires igniting during construction activities. These measures must include, but not be limited to:

106 During Construction, the Applicant is to consult with the local RFS in periods of high fire danger, to verify that proposed activities to be undertaken during this period, will not adversely increase the risk of bushfire. The Applicant must comply with any reasonable request of the local RFS.

107 The Applicant must consult with the RFS after the commencement of operation and any other time thereafter as required by the RFS, to ensure that the local RFS is familiar with the development, including location and identification of wind turbines for the purpose of fast access in emergencies.

Safety Management System

108 At least two months prior to the commencement of commissioning, the Applicant must prepare a report outlining a comprehensive Safety Management System, covering all on-site systems related to ensuring the safe operation of the development. The report must clearly specify all safety related procedures, responsibilities and policies, along with details of mechanisms for ensuring adherence to the procedures. Records must be kept on-site and must be available for inspection by the Department upon request. The Safety Management System must be developed in accordance with the Department’s Hazardous Industry Planning Advisory Paper No. 9, ‘Safety Management’, and should include:

Telecommunications

109 Prior to the erection of any wind turbine(s) on site, the Applicant must undertake an assessment of the existing quality of the television transmission available at a representative sample of residential dwellings located within five kilometres of a wind turbine.

110 The Applicant must undertake any Reasonable and Feasible mitigation measures to rectify any television transmission problems reasonably attributable to the development, including but not limited to:

(a) installation and maintenance of a parasitic antenna system;
(b) provision of a land line between the affected receiver and an antenna located in an areas of favourable reception; or
(c) other feasible measures.

In the event of interference reasonably attributable to the development not being able to be overcome by measures outlined in (a) to (c), the Applicant must, if required by the impacted landowner, install and maintain a satellite receiving antenna. If a dispute arises between the landowner and the Applicant as to these works, the matter may be referred by either party to the Director-General, whose determination must be final and binding on all parties.
Any requested works must be completed within three months of the completion of the relevant television and/or radio reception assessment, unless otherwise agreed by the landowner. The Applicant must be responsible for all costs associated with undertaking any mitigation measures.

Wastewater Management

111 The human wastewater management system is to be designed in consultation with the SCA, in accordance with the principles contained within the guidelines On-site Sewage Management for Single Households, and the AS/NZS 1547-2000 On-site Domestic Wastewater Management. The system, including any effluent management areas, is to be located at least 100 metres from watercourses and 40 metres from drainage depressions.

112 AAA-rated water conservation devices are to be installed in the site control room/facilities building to minimise the volume of wastewater produced.

113 All stormwater is to be diverted away from any effluent management area associated with the development.

Decommissioning

114 Prior to the commencement of Construction, the Applicant must provide written evidence to the satisfaction of the Director-General, that the lease agreements with the site landowners have adequate provisions to require that decommissioning occurs in accordance with this Consent.

115 If any wind turbine(s) is not used for the generation of electricity for a continuous period of 12 months, it must be decommissioned unless otherwise agreed to by the Director-General. The Applicant must keep independently verified annual records of the use of turbines for electricity generation. These records must be provided to the Director-General upon request. The relevant wind turbine and any associated infrastructure is to be dismantled and removed from the site within 18 months from the date that the turbine was last used to generate electricity.

116 Within one year of decommissioning, the site must be returned, as far as practicable, to its condition prior to the Construction. All turbines and associated above ground structures including but not limited to, the substation, the control and facilities building and electrical infrastructure, including associated transmission lines, must be removed from the site unless otherwise agreed by the Director-General. All other elements associated with the development, including site roads, must be removed unless otherwise agreed to by the site owner(s). The cost of such decommissioning works is to be borne by the Applicant.

SCHEDULE 2

For the purposes of any property acquisition required under this consent, the following properties are identified as being affected landowners:

1. Rosvale (H12), described as Lots 35, 36, 118 and 125 in Deposited Plan 750046, Lots 2 and 3 in Deposited Plan 605482 and Lot 1 in Deposited Plan 1011714; and

2. Cloverlee, described as Lots 17, 18, 19, 20, 26 and 28 in Deposited Plan 750046

SCHEDULE 3

In accordance with the provisions of condition 9 of this consent, the documents referred to within the following conditions of consent are to be made publicly available:

1. condition 10

2. condition 13

3. condition 14

4. condition 15

5. condition 22

6. condition 23

7. condition 25

8. condition 26

9. condition 27

10. condition 29 (a), (d), (e) and (f)

11. condition 30

12. condition 38

13. condition 39

14. condition 53

15. condition 58

16. condition 85

17. condition 86

18. condition 87

19. condition 90

20. condition 91

21. condition 93

22. condition 95

23. condition 96

ATTACHMENT 1 TO CONDITIONS

13/02/2007 - Correct turbine numbers to be consistent with para 13 - Paragraph(s) 355

26/02/2007 - Attachment of Orders and conditions of consent - Paragraph(s) Epilogue

26/02/2007 - Formatting of conditions - Paragraph(s) Conditions

05/04/2007 - remove web urls from paragraphs and create text hyperlinks to webpages - Paragraph(s) 19, 68, 69, 70, 72, 75, 79, 82 and 138

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Citations

Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd [2007] NSWLEC 59

Most Recent Citation

Walker v Minister for Planning [2007] NSWLEC 741

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Statutory Material Cited

6

Tenacity Consulting v Warringah [2004] NSWLEC 140

CITATION:	Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd [2007] NSWLEC 59 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT Taralga Landscape Guardians Inc FIRST RESPONDENT Minister for Planning SECOND RESPONDENT RES Southern Cross Pty Ltd
FILE NUMBER(S):	10196 of 2006
CORAM:	Preston CJ
KEY ISSUES:	Ecologically Sustainable Development :- designated development - electricity generating station - wind turbines - renewable energy - visual impact - noise impact - impact on flora and fauna
LEGISLATION CITED:	Electricity Supply Act 1995 (NSW) Pt 8A Electricity Supply Amendment (Greenhouse Gas Abatement Scheme) Act 2006 (NSW) Environmental Planning and Assessment Act 1979 (NSW) s 5(a), 76A(7), s 79, s 79C, s 80, s 81, s88A, cl 89, Schedule 6, s 91, s 98 Environmental Planning and Assessment Regulation 2000 (NSW) cl 8J(4), cl 8J (6) Land Acquisition (Just Terms Compensation) Act 1991 (NSW) Renewable Energy (Electricity) Act 2000 (Cth)
CASES CITED:	Genesis Power Limited & Anor v Franklin District Council [2005] NZRMA 541; Tenacity Consulting v Warringah Council (2004) 134 LGERA 23 NSWLEC 140;
DATES OF HEARING:	04/09/2006, 05/09/2006, 06/09/2006, 07/09/2006, 08/09/2006, 01/11/2006, 03/11/2006, 06/11/2006, 10/11/2006.
DATE OF JUDGMENT:	12 February 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr R O'Gorman-Hughes (Barrister) SOLICITORS Storey & Gough FIRST RESPONDENT Mr P Clay (Barrister) SOLICITORS Legal Branch Department of Planning SECOND RESPONDENT Mr A Pickles (Barrister) SOLICITORS Middletons Lawyers