Victorian Civil and Administrative Tribunal|2012-08-03

The applicant (Bald Hills) has a permit for a wind energy facility.[2] The permit will expire if the development is not started by 19 August 2012 and is not completed by 19 August 2015.
The permit contains various conditions which require certain plans to be approved to the satisfaction of the Minister for Planning before the development starts (the development plans). All the required plans have been submitted to the Minister, but the Minister has failed to approve the plans. This proceeding is an application for review under section 149(1)(d) of the Planning and Environment Act 1987 by Bald Hills (as a specified person under section 148 of the Act) to review the failure of the Minister to make a decision to approve the development plans within a reasonable time after they were referred to him.
The Minister opposes the application on the basis that it is premature. It is the Minister's position that a reasonable period of time had not elapsed between the submission of the plans for approval pursuant to the terms of the permit and the making of this application to the Tribunal.
Since the application was made, the Minister has not made a determination in respect of the merit of the proposed plans. In the event that the Tribunal does not accept the Minister's primary submissions about the prematurity of the application, the Minister made no submissions either supporting or opposing the plans submitted by the applicant. Instead, the Minister's submissions were directed towards assisting the Tribunal to evaluate the merit of the plans. This included submission of a peer review of the acoustic materials prepared for Bald Hills by Marshall Day (which were submitted in support of the proposed development plans) by Mr Gustaf Reutersward of SLA Consultants. Mr Reutersward was called to give evidence about his peer review.

Notwithstanding that DPCD officers have signed off on all the development plans submitted and assessed that in each case the relevant condition has been satisfied, the catalyst for Bald Hills making this application was a letter dated 6 July 2012 from David Hodge, Executive Director, State Planning Services and Urban Development, which states:

I advise that the department's initial assessment of the development layout plans, when considering existing houses and building envelopes within tenement plans, has raised concerns regarding the noise predictions likely to apply to a number of these sites.

It is the department's view that the wind turbines circled in yellow on the attached plan are not able to achieve operational compliance with the relevant noise standard based on the information submitted.

In particular, I refer to the impact on houses identified within the Marshall Day report dated 24 February 2012 as numbers 19, 61 and 66 and building envelopes proposed within tenement plans for Wooldridge, Buckland, Delbridge and for Don Jelbart. I note that within the Marshall Day report three turbines will be operated in a noise optimised mode to limit noise impacts to the building envelope proposed within the Wooldridge tenement plan.

The department would like to give you the opportunity to respond to these concerns before a decision is made in relation to the development plans.

Upon receipt of this letter, Bald Hills became concerned that the Minister would fail to make a decision to approve the development plans in time to meet the deadline of enabling the development to commence before the permit expires on 19 August 2012. As a result it made this application to the Tribunal. The Tribunal considered that the circumstances of the case justified a priority hearing.
On 10 July 2012 the Tribunal made procedural orders. Amongst the orders was that the Minister must advise the applicant by 5pm on 16 July 2012 of any outstanding information in respect of the development plans submitted by the applicant pursuant to the permit. The Minister duly advised that there was no further information required.
The key issues that the Tribunal must consider are:
- Has the Minister for Planning had a reasonable time in which to assess the documents in relation to which approval and/or endorsement is sought?
- If so, based on their merits, should the various development plans be approved and/or endorsed?
An important issue in assessing the merits of the various development plans concerns the ability to meet the required noise standard under the permit at a number of dwellings and/or tenement plans and whether this is indeed, relevant to a decision on the merits of the development plans.
Some queries have also been raised by the Tarwin Valley Coastal Guardian Inc about the adequacy of the Bat and Avifauna Management Plan.

Tarwin Valley Coastal Guardians Inc is a community organisation acting for three landowners whose land abuts the subject land and in respect of whose properties tenement plans have been prepared under condition 28 of the permit. The landowners are:
- John McDougal
- Don Jelbart
- Andrew Kilsby
At the commencement of the hearing, Tarwin Valley Coastal Guardians sought leave to table certain material and speak to it. It did not seek to be joined as a party either on its own behalf or on behalf of the landowners whom it represented.
Leave was given to Tarwin Valley Coastal Guardians Inc to submit this material and speak to it briefly. We said that we would consider it, so far as relevant, pursuant to the Tribunal's power under section 98(1)(c) of the Victorian Civil & Administrative Tribunal Act 1998 to inform itself on any matter as it sees fit.

The Bald Hills Wind Farm has been a contentious proposal since the Environments Effects Statement (EES) and permit application were first prepared in 2003. Permit TRA/03/002 was issued on 19 August 2004 following a panel hearing and panel report, which considered submissions in respect of:
- The Bald Hills Wind Farm project Environment Effects Statement (EES);
- The Bald Hills Wind Farm project EES supplement (SEES);
- Permit application TRA/03/002 for a wind energy facility; and
- Called in permit application 2003/5634 related removal of native vegetation.
Hearings were conducted by the panel over 17 days in March and April 2004 and a comprehensive panel report was released on 24 June 2004.[4]
On 31 August 2006 the (then) Minister extended the life of the permit by a period of five years to the present expiry dates of development, which require commencement by 19 August 2012 and completion by 19 August 2015.
On 21 December 2006, the Commonwealth Minister for the Environment and Heritage approved the construction of the Bald Hills Wind Farm pursuant to the Environment Protection and Biodiversity Conservation Act 1999.
In May 2008 Bald Hills Wind Farm was acquired by Mitsui and Co (Australia) Limited from the original proponent.[5]
In March 2009 an application for secondary consent under the permit was submitted to the Minister in relation to an increase in height of the turbines from 110m to 135m. The application included a report by ERM Consultants detailing the assessment of the impact of the height change on the assessed impact of the wind farm. The application was supported by a series of technical assessment reports, including noise. On 30 November 2009 the Commonwealth Department of Environment, Water, Heritage and the Arts confirmed that the proposed increase in turbine height was acceptable to the Commonwealth Minister. On 16 December 2009, the Minister for Planning confirmed that the modification of specifications in condition 4(b) of the permit had been approved by secondary consent to allow the wind generators to be constructed to a maximum height of 135 metres.
By order of the Tribunal made on 28 July 2010 the Tribunal dismissed an application made by the Tarwin Valley Coastal Guardians Inc seeking to challenge the lawfulness of the Minister's decision made on 16 December 2009.[6]
In late September 2011 consultation commenced between the applicant, DPCD and other referral authorities about the process for submission and approval of plans required under the permit.
A detailed chronology of the discussions held, consultation with stakeholders, and details of correspondence and documents submitted for comment and approval was included in the affidavit of Matthew Croome dated 10 July 2012. We have included this information in Appendix A. It was not challenged by the Minister.
In addition to the development plans requiring approval under the permit, condition 18 of the permit requires local background sound level measurements to be taken at two properties before the development starts. These measurements do not need to be submitted for approval to the Minister, nor are they required to be to the satisfaction of the Minister. They were taken and a report sent to the Minister at the same time as sending the development plan on 4 May 2012.
The permit conditions also required plans to be submitted prior to the development plans being prepared that show all farm tenements neighbouring the development site. These tenement plans are to include the location of existing dwellings on each tenement as at 24 June 2004. If a tenement had no existing dwelling at this date and was over 40ha in area, a potential house site is to be indicated on the tenement plan. The potential house site is to be nominated after consultation with, but does not require the agreement of, the landholder.
Condition 29 provides that a dwelling site on an approved tenement plan has the same potential as existing dwellings under permit conditions. This applies particularly in respect of noise and shadow flicker.
In April 2012, Mr Croome had discussions and correspondence with Mr Gane of DPCD about noise. Mr Gane was provided with copies of the latest noise reports and other documents, including a scope of works for post construction noise monitoring prepared by Marshall Day Acoustics.
On 6 July 2012 the applicant received a letter from Mr David Hodge of DPCD relating to future noise compliance issues and the development plans approval process, which we have referred to earlier. The applicant sent Mr Hodge a response on 9 July 2012, which expresses concern about the significant delay in approving the development plans under the permit and which states:

... the issue of future noise compliance is not a relevant consideration to the Minister's approval of the development plan submission.

Acoustic issues were extensively analysed by the Panel appointed to consider the impact of the wind farm in 2004. The Minister at the time granted the Permit on the basis of advice from that Panel that the wind farm could comply with noise limits and set conditions accordingly in the Permit. Nothing has changed since this time.

The layout plans and tenement plans have been prepared in accordance with the Permit conditions, including in condition 1(a) that the layout be generally in accordance with the layout plan considered at the Panel.

Indeed, the only relevant Permit pre-condition relating to noise is condition 18 which requires background noise modelling to be carried out prior to commencement of the development. This modelling does not have to be 'to the satisfaction of the Minister' nor does it need to be submitted to the Minister 'for approval' prior to commencement of the development.

It is the obligation of the wind farm to comply with the requirements of the Permit in relation to noise limits imposed by condition 19. If it does not comply in the future, then it will face enforcement proceedings. We consider there is no reasonable basis for not approving the development plans due to hypothetical future noise compliance concerns.

We have sought the advice of the key expert in the area of wind farm noise, Christophe Delaire at Marshall Day Acoustics, and the advice will be followed. As noted by you in your letter, this advice includes that turbines 40, 46 and 47 be operated in noise optimisation mode to limit the sound power level and to ensure compliance with the limits of condition 19 of the Permit at nearby dwelling/tenement sites. The wind farm will implement this advice and therefore we have no concerns that the wind farm will not be able to comply with condition 19 of the Permit.

This application for review was lodged on 10 July 2012.

(1) A specified person may apply to the Tribunal for the review of -

(a) a decision of a specified body in relation to a matter if a planning scheme specifies or a permit contains a condition that the matter must be done to the satisfaction, or must not be done without the consent or approval, of the specified body; or

(d) if there is no prescribed time for a decision of a kind referred to in paragraph (a), (b) or (c), a failure of a person or body to make that decision within a reasonable time after the matter is referred to it.

There is no specific time frame stipulated in the Act or the regulations for the assessment of plans for endorsement pursuant to planning permit conditions.
It was common ground between the parties, and the Tribunal so finds[7], that what constitutes "a reasonable time" for the purposes of section 149(1)(d) of the Act is a matter of fact to be determined having regard to the nature of the matters to be evaluated by the decision maker. It must be determined having regard to the specific facts and circumstances of each case. This would include the type of approval, the history of the matter, the complexity, the implications of delay in decision making, the expectation of feedback being provided to enable correction or additions to information being provided to assist in the decision making, and expectations of the legislative framework within which the decision is being made.[8]

It was submitted by the parties that a critical element in the Tribunal's deliberations in determining the period of time within which the Minister could have reasonably assessed the plans submitted for endorsement is identifying from when time should start to run.
The applicant contends that time should start to run from 4 May 2012 being the date that the CD was filed with DPCD containing the final version of the development plans. Whilst subsequent CDs were submitted on 11 May, 26 June and 6 July 2012, the applicant says they contained no substantive changes to the plans but only minor changes and updates.
The Minister contends that time should only start to run from:
- 6 July 2012, being the date on which the final version of the tenement plans were submitted for approval; or in the alternative
- 26 June 2012, being the date on which the plans showing the full extent of the surrounding tenements were first submitted to the Minister.
We consider that in the context of this particular case it is the totality of the time period over which the substantive material has been available to the Minister for assessment that is relevant, even though that material has been refined over time with input from DPCD and other referral bodies. When time should start to run should not be judged by reference to a specific date when a specific version of a document was submitted. Rather, we consider that what is reasonable must be judged by reference to the overall period that has been available to assess the content of the plans in question.
This is not the same type of situation that arises when a specific period of time is stipulated for making a decision or doing something, and that time period is measured from a specified date or the doing of some specified action; for example, lodging a permit application.
In the present case, 11 conditions require plans or other documents to be prepared to the satisfaction of the Minister for Planning or other body before development starts. A list is included in Appendix B.
The work required to prepare all these plans and undertake the surveys required is considerable. Most are of a complex and technical nature. The process involved in approving such plans requires close consultation between an applicant and the responsible authority. From a practical perspective, the assessment process commences when the initial drafts begin to be submitted and are refined as the process of consultation between the applicant, its consultants and the responsible authority progresses. It will involve input from various authorities referred to in the conditions.
With a project of this complexity and the range of development plans requiring approval, the assessment process does not commence simply when the final versions of the plans are submitted. The assessment process will extend over some time post and previous to this event.
In the present case, we consider that when the applicant submitted the final version of the various plans it was reasonable to expect that they represented plans which DPCD officers charged with assessing the content and merits of the plans were satisfied with. This point represented the end of the stage in the approval process consisting of the officers' assessment of the plans and marked their satisfaction with the plans.
This analysis of the approval process is supported by a report submitted by the Minister[9] headed "Assessment of development plans received for the Bald Hills Wind Farm Project" (the assessment report). It consists of a table which details:
- Conditions contained within South Gippsland Planning Permit TRA/03/002 that need to be satisfied prior to development commencing;
- Whether referral to Government agencies was required;
- DPCD officer discussion/comment; and
- An assessment on whether the condition has been satisfied.
In respect of each of the relevant conditions, the Department considers that the plan satisfies the condition and is suitable for endorsement.
Mr Horner was the DPCD officer responsible for preparing this assessment report. He began its preparation in mid May 2012. It passed through various iterations. The last iteration was some 10 days prior to the hearing when the final CD of development plans was submitted on 6 July 2012.
With the exception of the tenement plans, which we will deal with as a separate issue, we are satisfied that DPCD has been in possession of the substantive final versions of all plans since 4 May 2012. We consider that the time since then, when taken together with the months of consultation preceding this (as evidenced by the chronology set out in Appendix A) together with the time that has elapsed since 4 May 2012, which has resulted in refining the final details in the plans, constitutes a reasonable time within which to make an assessment. This conclusion is evidenced by the officer's final assessment that all the plans satisfy the relevant conditions and are suitable for endorsement.
However, assessment by DPCD officers and their satisfaction with the plans are not the same as final approval by the Minister for Planning, which is what is required under the conditions in the permit.
We acknowledge that the period of time from when the officers' assessment was completed until the applicant lodged this application for review is a short period of time. Was it reasonable to expect the Minister to have made a decision within that time?
We conclude that the Minister did have a reasonable time within which to make a decision for the following reasons.
In practical terms, the Minister will rely upon the assessment by Department officers about the adequacy of plans in technical terms. Like other responsible authorities, a wide range of skills, expertise and significant time inputs from various personal are relied upon to assess and compile advice and recommendations on the decision to be made. In the present case, the Minister had available to him an officer's assessment of all the plans compiled in this way. He was therefore not in a position where it could be said that the plans had not been examined and assessed on their merits. They had, and recommendations had been made supporting approval and endorsement of the plans.
We accept that having an officer's report and recommendation for approval or refusal on the final plans which the permit holder relies on, does not, of course, mean automatic approval (or refusal) by the Minister. A reasonable time must remain for the Minister to review and consider the officer's report and recommendations and make a decision. Moreover, the time taken must be considered in the context of the approval being sought. That context is one of compliance with permit conditions.
Notwithstanding the complexity of the number of plans and other matters, it is a relatively lesser burden administratively than the initial grant of the permit. The merits of various issues have already been dealt with in the permit assessment process (in this case by the panel) and the original grant of the permit. We would consider that being in receipt of all the necessary information as to compliance with the permit conditions, a final decision could have been made by the Minister within the period that occurred between the date of the advice so received and the date of this application and the hearing.
This is more so given that time was of the essence in terms of the Minister making a decision. It was necessary for the Minister to make a decision in time to enable the applicant to mobilise its resources to commence development before 19 August 2012. If development is not commenced by this date, the permit will expire. If the project does not proceed, the applicant will suffer significant financial loss, having already invested over $12 million in the project. Given the urgency associated with obtaining approval of the development plans, we do not consider that any delay on the part of the Minister in making a decision was justified. We consider that this urgency influences what is a reasonable time in the circumstances, especially having regard to the length of time the Department had to assess the material.
The Minister has advised that there was no further information required from the applicant. All the plans have been favourably assessed by Department officers. We therefore consider that the Minister was in a position to make a decision by the time when the application against failure was made. We do not consider that the concerns about noise raised by Mr Hodge in his letter dated 6 July 2012 were relevant to the decision the Minister was required to make about the development plans under the conditions in the permit. We deal with this issue and the lack of substance to these concerns and their relevance further later.
We are not persuaded that the length of time the permit has been on foot (since 2004) is a reason why the Minister should suggest that the development plans could have been submitted earlier and, presumably, given the Minister more time to make a decision. Many things have occurred since then. There was the delay in obtaining approval under the Commonwealth EPBC Act. There was the change in ownership of the project and the work associated with obtaining secondary consent to increase the height of the turbines consequent upon advancements in wind turbine technology since the time that the EES and permit application were first assessed.
However, since the planning controls changed in March and then August 2011, which meant that the proposal in its present form could not be approved and that no further extensions of the permit in its present form could be obtained, we consider the applicant has acted expeditiously to undertake the necessary work to prepare the development plans in time for them to be approved and for the development to start before the permit expires on 19 August 2012. Discussions commenced with DPCD and other government agencies in late September 2011 and work has progressed steadily since then on the part of the applicant and its consultants.
We are not persuaded either that there was no reasonable basis upon which the determination of this application should be prioritised over the multitude of other matters that the Minister must deal with in his capacity as a responsible authority and otherwise.
In the present case, the Minister is acting in his capacity as responsible authority for the purpose of approving development plans under the permit. The duties of a responsible authority include to implement the objectives of the planning scheme.[10] These objectives include the objectives of planning in Victoria (as set out in section 4 of the Planning and Environment Act 1987). The first of these is to provide for the fair, orderly, economic and sustainable use, and development of land.[11]
We consider that when making a finding about whether the Minister has had a reasonable time to make a decision after a matter is referred to him within the meaning of section 149(1)(d) of the Act this objective of planning in Victoria is relevant. We consider that the Minister, as a responsible authority, has a duty to be fair. We do not consider it would be fair or reasonable in the circumstances of this case for the Minister to delay making a decision about whether to approve the development plans under the permit for so long as to render futile the applicant's ability to comply with the permit and commence development before 19 August 2012.

Section 149(1)(d) of the Act provides an opportunity for a specified person to apply to the Tribunal for the review of a failure by a specified body to make a decision within reasonable time after the matter is referred to it. We find that this does not refer necessarily to a specific date. Nor does it necessarily mean the date upon which a briefing is placed before the Minister himself. In the circumstances of the present case, where the matter is the approval of multiple complex development plans, it is the totality of the time from initial referral of the substantive plans to the Department, which will undertake the assessment of the plans on behalf of the Minister and which will liaise with the applicant to facilitate approval of the plans, that is relevant in the context of assessing whether there has been a reasonable time for the purpose of an application under section 149(1)(d).
We find that in the circumstances of this particular case, the Minister has had a reasonable time within which to make a decision. As a result, we find that this application for review against the failure of the Minister to make a decision is not premature.

Condition 28 requires the preparation of a tenement plan(s) as follows:
1. Prior to the preparation of the development plan, a plan shall be prepared to the satisfaction of the Minister for Planning showing all farm tenements neighbouring the development site (including those separated from the site by a road), and the location of existing houses on each separate tenement, as at 24 June 2004 (the 'tenement plan'). In the event that there are any tenements over 40 ha in area without an existing house, a potential house site for the tenement should be identified after consultation with the tenement owner. The Minister for Planning may indicate satisfaction with an otherwise reasonable plan that does not address the issues raised by all consultees.
Condition 29 makes the tenement plans relevant for the purpose of compliance with other conditions in the permit. It provides as follows:
1. Where a dwelling site is shown on an approved tenement plan, it shall be considered as an existing dwelling for the purposes of all other relevant conditions in this permit.
A total of seven tenement plans for different properties have been prepared under this condition. Each plan (save one) identifies a potential building site for a dwelling that will meet the noise requirements of condition 19 and the shadow flicker requirements of condition 30. In one case where it was not possible to define a viable potential building location due to the constraints of shadow flicker and noise, the applicant has agreed to purchase the tenement property should the wind farm proceed.[12] In another case where the location of the potential building area for a residence was determined after a number of discussions with the landowner, the preferred location was achieved after an adjustment of the wind farm layout through the relocation of turbines to a permitted alternate location to ensure the land owner's preferred building area was unconstrained by noise or shadow flicker.[13]
Tarwin Valley Coastal Guardians is critical of some of the identified building sites of the people that it represents. However, the landowners' agreement to the sites is not a pre-requisite for approval of the tenement plans.
The tenement plans generally identify a potential building area ranging in size from 0.5 hectares to 5 hectares, unconstrained by noise or shadow flicker, which we consider are reasonable having regard to the purpose underlying condition 28 and the need for tenement plans to be prepared.
Department officers made the following comments in their assessment of the tenement plans in the assessment report:

The Tenement Plans were prepared after the preparation of the development plan and not before as required by this condition. The final tenement plans were delivered to the Traralgon office on 26 June 2012 while the development plan was in it's current form in May 2012 with identical draft turbine layout plans in place in November 2011.

There are 7 properties identified as being tenements that fall within the description of this condition. Tenement Plans have been prepared for each of the properties involved. The proponent has entered into an agreement to buy one of the 7 properties and building envelopes for the other six properties have been finalised after varying degrees of consultation with the property owners. Agreement with a number of the land holders regarding the location of the building envelopes could not be obtained with the proponent designating a building envelop that represents their view of the optimal building location after considering the view of the land owner and the constraints of the site.

All of the 6 sites nominated development plan sites face potentially significant sound pressure impacts of between 37 to 40dB from the wind farm development. The Kilsby and FIRs Pty Ltd development sites could potentially be moved further away from the wind farm to reduce the impact of noise from the nominated building envelopes.

Several of the tenement holders contacted have been unsatisfied with the level of consultation provided by the proponent. Mr John McDougal (FIRS) for example claims to have had no discussions with the proponent regarding the location of the building envelope selected by the proponent.

The remaining 4 building envelope sites however have little room for error with respect to sound power levels and it is possible that under unfavourable meteorological conditions these sites may be subject to sound power impacts of greater than 40dB. However, there are no technical reasons available to the department, such as an independent peer review, to not approve the tenement plans submitted.

The Tenement Plans submitted satisfy this condition and are suitable for endorsement.

At the hearing, the Minister submitted that it is plain from the terms of the permit that the tenement plans were intended to form an integral component of the assessment process. Rather than being submitted as a precursor to the commencement of development, they were to be prepared as a precursor to the preparation of the development plan itself. No submission was made that this necessarily renders the development plans submitted on 4 May 2012 void or invalid. Nevertheless, the Minister submitted that the failure on the part of the applicant to submit the tenement plans in advance of the development plans compromised the assessment of the entirety of the material. It was not until the Minister was in possession of a full set of tenement plans that he could be satisfied that the proposed development plans depicted a turbine configuration which had been appropriately designed and located (ie one which would not wholly sterilize adjacent parcels of land from reasonable development potential given its rural setting). This in turn, it was submitted, precluded the Minister from properly assessing the majority of the remainder of the material, which relied on the turbine configuration shown in the development plans.
We do not accept this submission. We acknowledge that the last three tenement plans were not submitted until 26 June 2012. However, the late submissions of these plans did not prevent the remainder of the plans from being assessed by Department officers on their merits following input from relevant referral bodies.
Condition 1(a) of the permit provides as follows:
1. Before the development starts, development plans to the satisfaction of the Minister for Planning must be submitted to and approved by the Minister for Planning. When approved, the plans will be endorsed by the Minister for Planning and will then form part of this permit.

(a) The location of all wind generators (using Global Positioning System coordinates or another appropriate method and including dimensions from adjoining property boundaries) generally in accordance with the indicative layout shown on Figure S1 in the Supplement to the Environment Effects Statement but subject to the requirement that none are located at position number 10 or A2.

We do not consider it was ever the intention of condition 28 to require the removal of any approved turbines or their relocation to a point that was not otherwise generally in accordance with the requirements of condition 1(a). Some adjustment by way of micrositing of individual turbines might result, which is what has occurred in respect of the property at 1325 Walkerville Road, Tarwin Lower. But we reject the suggestion of Mr Andrew Kilsby (one of the persons represented by Tarwin Valley Coastal Guardians) that 5 turbines should be removed to safeguard his preferred building site selected to maximise views, because we do not consider that such an outcome was ever intended by the condition.
The background to condition 28 is dealt with in the Panel Report.[14] The discussion in the Panel Report focused on rural tenements of over 40 hectares without a dwelling where the planning controls (at the time) enabled a dwelling as of right on a lot over 40 hectares. The panel identified that there is a reasonable expectation that such tenements should be capable of having a dwelling to serve agricultural purposes. Specifically, it commented:

The Panel does not have sufficient information as to tenement ownership patterns (as opposed to lot boundaries) to determine if any of the land adjoining the wind farm sites is so configured as to prevent the construction of a dwelling for agricultural purposes on a tenement of over 40 ha without that house being within acknowledged amenity constraints such as noise and shadow flicker. The Panel does not consider that of principle there is likely to be a tenement located anywhere within the surroundings of the project, that would be entirely washed over in this way. However, the Panel considers that it is reasonable that the proponent should lend assistance to the relatively few neighbours who may seek reassurance about their position. It follows that, (and the Panel would emphasise that this is unlikely) it is found that a tenement lacks a viable location for an agricultural dwelling because adverse amenity conditions wash over it in entirety, then steps should be taken by turbine optimisation, or micrositing to enable a reasonable dwelling envelope to be found.[15]

In relation to the retention of opportunities for other rurally related use and development, the Panel has considered planning scheme policy which directs it to consider possible future development. It has concluded that as a general position, where new dwellings are sought as of right or subject to permit in locations within a range where adverse amenity impacts might apply, the onus of responsibility - for the cost of management of turbine noise and blade shadow amenity impacts - should fall upon the agent of change; generally the constructor of the new dwelling.

The only exception to this principle appears to be where an existing agricultural tenement lacks an existing single dwelling for agricultural purposes. In such circumstances, the Panel considers that it is reasonable for the landowner to be able to seek the assistance of the proponent in locating the best and most feasible location for a dwelling and for amenity standards at that location then to be protected by permit condition binding on the wind farm operator.[16]

These findings have translated into conditions 28 and 29 of the permit.
We consider that the applicant has complied with the intent of conditions 28 and 29 in the preparation of the tenement plans. Whilst the tenement plans were not prepared prior to the initial preparation of the development plan under condition 1(a), this does not invalidate the development plan or the tenement plans. Both have been prepared and assessed as satisfying their respective conditions.
With respect to the Department officer's comments about noise in the assessment report, we consider they have been addressed by the peer review subsequently undertaken by Mr Gustaf Reutersward on behalf of the Minister. We are satisfied that there are no permit conditions about noise that would mean the tenement plans are not appropriate for the reasons we set out below about acoustic permit requirements.
We therefore find there is no reason why the tenement plans should not be approved. We do not consider that the final submission of the last three tenement plans on 26 June 2012 changes our conclusion that the Minister had a reasonable time to make a decision.

Under the heading of 'Noise' the permit sets out a series of conditions to address acoustic or noise matters. Condition 18 requires that before the development commences, background sound levels are required to be measured at two properties. There is no contention between the Minister and Bald Hills that this is the only noise based pre-development permit condition. The other permit conditions under this heading deal with compliance with noise criteria and any remedial monitoring and action during the operation of the facility. These conditions set noise targets to be achieved at dwellings (condition 19), exemptions (Condition 20), noise complaint and response requirements (conditions 21 and 22), and post construction monitoring and reporting (conditions 23, 24 and 25).
Whilst the Minister agrees that the pre-development background monitoring has been completed in satisfaction of condition 18, there remains a concern about final approval of the development plan and the potential for noise impacts. These concerns are about the ability of the facility to meet noise compliance levels at three dwellings and at building envelopes nominated for four tenements under the tenement plans. These concerns were conveyed to Bald Hills in the letter from DPCD on 6 July 2012 referred to earlier.
At the hearing, Mr Chessell, on behalf of the Minister, set out a further explanation of these concerns, namely that:
- Compliance with the target noise levels at these locations is predicted in Marshall Day noise assessments submitted in April 2012 to be marginal, i.e. at or just below the target noise criteria of 40 dB(A) and therefore there is little scope for error.
- Compliance at the Wooldridge tenement is dependant on three turbines operating in 'low noise mode'.
- There has been no allowance made for special audible characteristics, which if they were to occur would incur a 5 dB(A) penalty on each turbine's predicted noise generation level and hence exceed the criteria applicable to the dwellings or tenements of concern.
The Minister commissioned a peer review of the April 2012 Marshall Day noise assessment. Mr Reutersward undertook this review and gave evidence about his findings and conclusions.
Mr Reutersward's evidence is that the Marshall Day noise assessment has generally been conducted in accord with best industry practice and appropriately applies the nominated noise criteria under the permit. With particular reference to the issues raised by the Minister, Mr Reutersward's evidence is that:
- The potential to exceed the noise criteria at the Wooldridge tenement is predicted to occur when the wind is from certain directions. When this occurs, the level of noise can be reduced by a sequence of operating one, two or three nearby turbines in 'low noise mode'. He is satisfied that this operation will achieve the necessary noise reductions. He highlights that with advances in technology, it is possible to program the turbine operation controls to automatically select the 'low noise mode' when the wind is from the direction(s) of potential concern.
- Special audible characteristics and low frequency character have not been taken into account, but nor can they be readily predicted by modelling. He acknowledges that these particular audible characteristics may be a source of intrusive noise. They include modulation of noise pressure levels (otherwise understood by us to be the strength of a sound), varying noise tones (tonal impulses) and other variations in pitch or sound character distinguishable from the broadband spectrum of noise emanating from a turbine. They may be generated by meteorological conditions, operational or maintenance conditions of the turbine including the gear box, dirty or other irregularities of a turbine blade, weather conditions or a combination of any of these or other conditions. It is his evidence that the source of special audible characteristics is very complex and not well understood. The best approach to address such special audible characteristics is through a post construction/commissioning assessment with subsequent modification of operations by either operating individual turbines in low noise mode or in some circumstances stopping their operation when conditions might be favourable to generating such noise.[17]
Mr Reutersward's overall conclusion is that compliance with noise criteria can be achieved under the proposed development plans. While he makes recommendations for amendments to the April 2012 Marshall Day assessment, he considers that these are not material to this conclusion.
A number of other issues were also addressed in Mr Reutersward's evidence about tonal penalties, changes to the wind farm layout, turbine height and turbine type now proposed for Bald Hills. None of these matters were of concern to Mr Reutersward and indeed were addressed and were integral in reaching his overall conclusion that the wind farm would be able to comply with the applicable noise criteria.
We are satisfied from such evidence, when read in conjunction with the Marshall Day April 2012 assessment and Mr Delaire's evidence statement, that the wind energy facility can achieve compliance with the noise criteria set under the permit.
This leads us to observe that while we have reached the above conclusion, ultimately the only condition about noise contained in the permit required to be satisfied as a pre-condition to development plans being approved is condition 18 and the measurement of background noise levels. All other noise conditions relate to the operation of the facility and act as safeguards for action and enforcement if unreasonable noise impacts occur. Mr Chessell's submission is that such conditions, and condition 1 requiring the Minister to be 'satisfied' about the development plans afford the Minister, and now the Tribunal, a sufficiently broad discretion to need to be satisfied about an ability to achieve noise compliance.
Having been through a thorough permit and EES assessment process and a subsequent second assessment process to amend the development, we do not accept that the discretion to be satisfied about the development plans confers a discretion to re-ventilate matters already dealt with under those processes. A permit should only be granted if it is considered such matters as noise can be dealt with appropriately. A permit should embody appropriate conditions to ensure this, which may require further detail to be provided by way of development plans to be approved under the permit. But once granted, it is fundamental to the integrity of the planning system that a permit can be relied upon to provide certainty to the permit holder that they can proceed with the development authorised by the permit, subject to complying with conditions. Considering and endorsing development plans under the permit is not an opportunity to have 'second thoughts'.
Even if it was open to consider the potential to achieve noise compliance in the context of approving the development plan under condition 1(a), the combined evidence of Messrs Reutersward and Delaire satisfy us that the wind farm and location of turbines as set out under the development plans can comply with the related noise conditions.
If for some reason the noise conditions are not complied with, there are processes under the permit to deal with this, with the ultimate sanction being an enforcement order. This is a risk the applicant must manage. It should not preclude the approval of the development plans.
We find therefore that the noise issues raised by the Minister and others give us no cause to refuse approval and endorsement of the development plans.

Tarwin Valley Coastal Guardians complain that the Bat and Avifauna Management Plan (BAM Plan) condition has not been complied with, in so far as they believe that bat monitoring at Arch Rock has not been undertaken. Mr McIlrath refers to the prospective language used in the BAM Plan report[18] and other facts that lead to such a belief.
The applicant maintains that the monitoring has been completed, reported on and the BAM Plan developed to the satisfaction of DPCD and the Department of Sustainability and Environment (DSE)
Condition 17 of the permit requires that before development commences, a BAM Plan must be prepared in consultation with DSE and be submitted to and approved by the Minister. We are informed that this has occurred and the Minister raises no issue with the BAM Plan. This was confirmed by Mr Chessell at the hearing. The assessment report indicates the plan is 'a comprehensive document' and has met all DSE's requirements.
We have taken the opportunity to review the particular aspects of the BAM Plan raised by Mr McIlrath. In doing so, we find that the ecological consultants engaged by Bald Hills were not able to gain direct access to Arch Rock due in part to its isolated offshore location and poor access opportunities. However, we are not persuaded that the terms of condition 17 specific to Arch Rock and Large Bent-wing bat monitoring necessarily required gaining access onto Arch Rock.
The issue being addressed by this requirement was the subject of much deliberation by the Panel in recognition of the known roosting of a colony of Bent-wing bats on Arch Rock.[19] The Panel's consideration is now a matter of record and we need not repeat it here. We note however that even the witness called on behalf of the local landholders to address the Bent-wing bat issues at the Panel hearing, Dr Stapleton, expressed caution about how monitoring of the bat numbers should be undertaken given the species' sensitivity and vulnerability to disturbance.[20] She advocated the use of Anabat recorders.[21]
The assessment of bat movements and numbers proceeded on the basis of Anabat monitoring and species recognition from recordings of bat calls. While the number of Anabat recordings may not have been as extensive as those advocated by some at the Panel hearing, the assessment included monitoring immediately onshore of Arch Rock and at two locations within the wind farm land. A variety of bat species and activity have been determined from this assessment.
Having considered the bat survey assessment, we are satisfied that the intended outcomes of this permit condition have been satisfied, given that:
- The intent of the BAM Plan includes the monitoring of Large bent-wing bat[22] numbers over time at Arch Rock as a reference for impact analysis.
- The monitoring performed to date has used appropriate techniques.
- The assessment has detected the presence of one or more Eastern Bent-wing bats[23] traversing from Arch Rock to the mainland and two instances of this subspecies being present on the subject land. No Large Bent-wing bats have been identified in the vicinity of Arch Rock or the wind farm site.
- An ongoing monitoring assessment program for the presence and mortality of avifauna and bat species has been developed.
- The various monitoring regimes conducted to date and proposed for the future include assessing species' frequency and height of movement, changes in seasonal activity and other components of the conditional requirements.
Accordingly, we find there is no reason to be concerned that Bald Hills Wind Farm has not and will not fulfil its obligations under the BAM Plan and condition 17.

There were no other matters presented to us by the Minister to indicate why we should not be satisfied with the development plans and why they should not be approved. Mr Chessell submitted that in the event the Tribunal does not accept the Minister's primary submission that the application is premature, the Minister is not in a position to make submissions either in support of or in opposition to the proposed plans. Nevertheless, in an attempt to assist the Tribunal to properly assess the plans (should the Tribunal consider that it is appropriate to do so), certain submissions were made about the conclusions that could be drawn from the peer review by Mr Reutersward on noise. We have considered those submissions and set out our conclusions regarding noise previously.
We have also set out our conclusions regarding the suitability of the tenement plans and the BAM Plan.
With respect to the suitability of the other development plans for approval, we rely upon the detailed assessment which has been made by DPCD officers that the plans satisfy the relevant conditions and are suitable for endorsement.
We therefore determine that all the development plans submitted by the applicant in satisfaction of conditions 1, 2, 5, 8, 10, 13, 14, 17, 28, 32 and 35 of permit TRA/03/002 as included in the CD of plans submitted to DPCD on 6 July 2012 are approved and, where required by the relevant condition, must be endorsed.

I attended a meeting at DPCD (Traralgon) with DPCD, SGSC, EPC, DSE, VicRoads, Repower, URS and BHWF to discuss the process for submission and approval of plans required under the Permit.

Email from Mr Brendan Fernandez (PB) to Mr Alan Freitag (DPCD) detailing how BHWF will manage the various documents such as the Environment Management Plan (EMP) and the Contractor's EMP

I am informed that there was a telephone discussion between Mr Andrew Horner (DPCD) and Mr Fernandez (PB), during which:

□ Mr Horner advised he will be the main contact at DPCD;

□ Mr Horner advised that the procedures listed needed to be included in the Planning Permit; and

□ Mr Horner advised that the Wildfire Prevention Plan needed to be included in the structure.

I sent an email to Mr Horner (DPCD) attaching Aviation Safety plans

Email from Mr Fernandez (PB) to Mr Horner and Mr Freitag (DPCD) attaching draft Construction EMP.

Email from Mr Fernandez (PB) to Mr Horner and Mr Freitag (DPCD) attaching draft Traffic Management Plan.

Email from Mr Horner (DPCD) to Mr Fernandez (PB) confirming that the Construction EMP documents have been forwarded to Agency officers, EPA, DSE and DPCD for comment. He requested responses by 20th January.

Email from Mr Fernandez (PB) to Mr Horner and Mr Freitag (DPCD) attaching draft Wildfire Prevention & Emergency Response Plan and the draft Security Plan.

Email from Mr Fernandez (PB) to Mr Horner and Mr Freitag (DPCD) attaching the Final Geotechnical Investigation report

Email from Mr Horner (DPCD) to Mr Fernandez (PB) advising that comments will be provided on the TMP once VicRoads has given feedback.

I am informed that there was a discussion between Mr Horner (DPCD) and Mr Fernandez (PB), during which:

□ Mr Horner informed Mr Fernandez that he had received the geotechnical file;

□ Mr Horner said there is no need for a meeting at the moment;

□ Mr Horner advised the key information they need at the moment is the layout plans and Mr Fernandez advised they will be ready soon;

□ Mr Fernandez advised they also need the Native Vegetation Management Plan in order to comment on the Construction EMP; and

□ Mr Fernandez advised that all the Plans will be submitted together to the Minister and that the Geotechnical report will not be submitted separately for endorsement.

Email from Mr Fernandez (PB) to Mr Horner and Mr Freitag (DPCD) attaching the draft Development Plans.

I am informed that there was a telephone discussion between Mr Horner (DPCD) and Mr Fernandez (PB), during which:

□ Mr Horner questioned the location of the site compound in the North-east area of the wind farm site and Mr Fernandez advised that the location was chosen to balance all the issues; and

□ Mr Horner advised that the offsets need to be included in the Native Vegetation Management Plan.

I am informed that there was a telephone discussion between Mr Horner (DPCD) and Mr Fernandez (PB), during which:

□ Mr Fernandez advised that that the Tenement Plans will be submitted soon; and

□ Mr Horner advised that he will visit the area of the wind farm the next week.

Email from Mr Fernandez (PB) to Mr Horner and Mr Freitag (DPCD) attaching the draft Construction & Work Site Management Plan.

Email from Mr Fernandez (PB) to Mr Horner (DPCD) attaching the Cultural Heritage Management Plan (No. 10611) for the whole wind farm.

Email from Mr Fernandez to Mr Horner and Mr Freitag (DPCD) attaching the draft Native Vegetation Management Plan.

I am informed that there was a telephone discussion between Mr Horner and Mr Fernandez, during which they discussed the Landscape Plan, Tenement Plan and Wildfire Prevention Plan.

Email from Mr Horner (DPCD) to Mr Fernandez (PB) providing comments from DSE on the Construction EMP and advising that the EPC has not provided any feedback.

Email from Mr Horner (DPCD) to Mr Croome, requesting an update on the Tenement and Landscape Plans. Mr Croome responded that the plans were expected in the next week, although landowner consultations may not be finalised by that date.

I sent an email to Mr Horner and Mr Freitag (DPCD) attaching the draft Pre-construction TV Reception Survey report.

I sent an email to Mr Horner and Mr Freitag (DPCD) attaching the Cultural Heritage Management Plan (No. 12011) for the north-east access point to the site.

I sent an email to Mr Horner (DPCD) attaching the Tenement Plans for the D Jelbart, Firs, M Jelbart and Wooldridge properties.

I sent an email to Mr Horner (DPCD) providing an updated overview of Tenement Plans

I attended a meeting at DPCD (Traralgon) with Mr Horner regarding the progress of plans during which the Visual Screening Plan and the Farm Tenement Plan were discussed and it was noted that the aim was to submit these plans by 30th March. Mr Horner advised they hope to receive comments on all the plans from the authorities by mid-April.

Email from Mr Fernandez to Mr Horner (DPCD) attaching the Landscaping & Visual Screening Plan

I sent an email to Mr Horner and Mr Freitag (DPCD) attaching the Approval for Cultural Heritage Management Plan (No. 12011)

I sent an email to Mr Horner and Mr Freitag (DPCD) discussing feedback from SGSC and CFA regarding the Landscaping & Visual Screening Plan.

I sent an email to Mr Horner (DPCD) requesting an update on submission of plans to the stakeholders. Mr Horner responded by email dated 5 April 2012 that the plans have been submitted to stakeholders and he hopes to receive comments by 20th April.

Email from Mr Fernandez (PB) to Mr Horner (DPCD) re-submitting the Landscaping & Visual Screening plan as the images were not clear. Mr Horner confirmed that the images were satisfactory on the version of the Landscaping & Visual Screening plan sent on 10 April 2012.

Email from Mr Horner (DPCD) to me providing comments from DPCD on the Construction EMP. Mr Fernandez (PB) responded by email on the same day, noting that the different section in the EMP covered his question. Mr Horner also advised that he expected comments from VicRoads and SGSC by 20th April.

Email from Mr Horner (DPCD) to me providing comments from SGSC on Traffic Management Plan and Landscaping & Visual Screening Plan.

Email from Mr Horner (DPCD) to me providing comments from VicRoads on the Traffic Management Plan.

I sent a letter to DPCD detailing each of the permit conditions and the relevant Development Plan document submitted in response to the permit condition together with copy Development Plans on CD.

I sent an email to Mr Horner (DPCD) discussing a CD sent that day via express post with final versions of all the plans.

Email from Mr Horner (DPCD) to me acknowledging of receipt of the CDs with the final versions of the plans.

I sent an email to Mr Horner and Mr Freitag (DPCD) and updated cover letter provided. I advised that additional detail will be provided in the Native Vegetation Management Plan to cover Conditions 14 (g), (h) and (i).

I am informed that there was a discussion between Mr Horner (DPCD) and Mr Fernandez (PB), during which Mr Horner gave comments on the Traffic Management Plan. Specifically, Mr Horner noted that the date of the TMP was incorrect and references to "commercial in confidence" were incorrect. He also requested the wording to be amended in section 5. I am informed that Mr Fernandez agreed that these changes will be made.

The CD of reports sent on 4 May 2012 was re-submitted to the DPCD, with the only differences being:

□ minor changes to the Traffic Management Plan;

□ minor updates to the Construction Environmental Management Plan; and

□ updates to the Native Vegetation Management Plan.

I sent an email to Mr Horner (DPCD) attaching the updated draft of Tenement Plan Figure 1 to include some erroneously omitted properties.

The CD of reports sent on 11 May 2012 was re-submitted to the DPCD, with the only difference being that the Farm Tenement Plans had been updated. All other reports were unchanged.

I attended a meeting with Mr David Hodge (DPCD) and Mr David Kirkland (DPCD) to discuss approval of the Development Plans during which:

□ I advised of the process we had gone through since the draft Development Plans were submitted in January; and

□ I sought confirmation of the timing for Ministerial approval for the Development Plans given the pending 19 August 2012 expiry of the Permit.

The CD of Development Plan reports sent on 26 June 2012 was re-submitted to the DPCD, with the only difference being that the Figure 1 of the Farm Tenement Plans was updated to remove some duplicated turbine locations. All other reports were unchanged.

CONDITIONS THAT REQUIRE DOCUMENTS TO BE PREPARED TO THE SATISFACTION OF THE MINISTER AND APPROVED BEFOFE DEVELOPMENT STARTS**

b) location, layout and dimensions of all buildings and works

c) designation of vehicle access points to energy facility

d) designation of vehicle access points to interpretive facility

e) designation of truck operating hours and speed limits

e) Aboriginal cultural heritage and archaeology management plan

Late spring/early summer survey to determine presence of certain species

b) evaluation of flora values of roadside vegetation

e) revegetation and/or rehabilitation of affected areas

h) procedures to prevent spread of weeds and pathogens

Tenement Plan showing dwelling sites on each tenement as at 24 June 2004 (including for tenements over 40ha without a dwelling, a potential dwelling site identified after consultation with the tenement owner)

Pre-construction qualitative survey of television and radio reception at all residences within 3 km of any turbine.

Evidence of Civil Aviation Safety Authority satisfaction with siting and design of wind farm structures.

[1] Under section 4(2)(d) Victorian Civil & Administrative Tribunal Act 1998 a failure by a decision-maker is deemed to be a refusal.

Use and development of land for a wind energy facility for the generation and transmission of electricity from wind generators, together with associated buildings and works, including preliminary investigative works.

[3] Amendments VC78 and VC82 to all planning schemes

[4] Bald Hills Wind Farm Project: EES, EES Supplement and Called-in Permits Panel Report: 24 June 2004

[5] Mitsui is the parent company of the applicant, Bald Hills Wind Farm Pty Ltd.

[6] Tarwin Valley Coastal Guardians Inc v Minister for Planning & Anor [2010] VCAT 1226

[7] Whilst sitting as a two member Tribunal, questions of law or mixed fact and law have been determined by Deputy President Gibson.

[8] See Bidjara Aboriginal Housing and Land Corp Limited v Indigenous Land Corp [2001] FCA 138; (2001) 106 FCR 203 and authorities cited in this case.

[11] Section 4(1)(a) Planning and Environment Act 1987 and clause 10.02 South Gippsland Planning Scheme.

[12] Jelbart property - 195 Demerlos Pit Road, Tarwin Lower.

[13] Wooldridge property - 1325 Walkerville Road, Tarwin Lower

[14] Sections 18.3.3, 18.3.4 and 18.4 at pages 272 - 281

[15] Bald Hills Windfarm Project: EES, EES Supplement and Called-in Permits Panel Report: 24 June 2004; page 277

[17] Modern turbine technology using variable pitched blades allows for turbines to essentially be switched off - i.e. stopped from rotating.

[18] Bald Hills Wind Farm Bat and Avifauna Management Plan. Brett Lane & Associates Pty Ltd, April 2012.

[19] ` See in particular from pages 146, 148 to 150 and 153 to 157 of the Panel Report

[20] At page 150 of the EES Panel report.

[22] Miniopterus schreibersii; also known as the Common Bent-wing bat or somewhat confusingly as the Southern Bent-wing bat, which is also recognised as the subspecies Miniopterus schreibersii bassinii. The Large/Southern or Common bent-wing bat is listed as critically endangered under the EPBC Act and is a listed species under the FFG Act.

[23] Miniopterus schreibersii oceanensii

Bald Hill Windfarm Pty Ltd v Minister for Planning [2012] VCAT 1092 (3 August 2012)

Bald Hill Windfarm Pty Ltd v Minister for Planning [2012] VCAT 1092

At a glance

Court

Decision date

Source

Judgment (122 paragraphs)

Parties

Cases Cited (2)

Bald Hill Windfarm Pty Ltd v Minister for Planning [2012] VCAT 1092 (3 August 2012)