1. On 4 April 2013 the Tribunal delivered an interim decision in this matter. The Tribunal adjourned the hearing for a period of approximately six months.
2. The matter was adjourned to enable the completion of a study about to be carried out by the Environment Protection Authority of South Australia into the effects of wind turbines at the Waterloo wind farm in South Australia on surrounding residents. It was envisaged that the study might shed light on the alleged connection between wind turbines and adverse health impacts on some of those residents. The Tribunal was informed that data would be collected during May and June, and that a report should be available by September.
3. The Tribunal had also been advised that the National Health and Medical Research Council of Australia (the NHMRC), recognised as the leading public health authority in Australia, was in the process of reviewing its public statement of July 2010. That statement concluded:

The review of the available evidence, including journal articles, surveys, literature reviews and government reports, supports the statement that: There are no direct pathological effects from wind farms and that any potential impacts on humans can be minimised by following existing planning guidelines.

It was thought that the review would be completed within the following six months.

1. At that time there was evidence before the Tribunal that some persons living in proximity to wind turbines were suffering deleterious health effects, but there was no persuasive evidence establishing a causal link between those effects and air pressure generated by the turbines, in the form of either audible noise or infrasound, that is, air wave pressure below the threshold of human hearing.
2. Furthermore, there was no evidence before the Tribunal regarding the proportion of the population residing in proximity to a wind turbine or turbines who suffered adverse health effects, and whether that proportion diminishes as distance from the turbines increases. Leave was granted to the parties to adduce evidence in relation to this question (see para.138). Any such evidence was to be filed with the Tribunal and served on other parties on or before 4 September 2013.
3. Shortly after the delivery of the interim decision the Victorian Department of Health published a document entitled "Wind farms, sound and health", a publication to which on the face of it was directly relevant to matters of concern to this Tribunal. The proponent of the proposed wind farm sought leave to tender the document in evidence, and invited the Tribunal to finally determine the matter forthwith.
4. At a Directions Hearing held on 24 May 2013 the Tribunal gave leave to the proponent to tender the Health Department publication in evidence. It also gave leave to the other parties to adduce expert evidence and make submissions which contested any of the matters contained in the publication. Again, such evidence was to be filed and served on or before 4 September 2013.

1. A considerable amount of material was filed and served by the respondents, the Trawool Valley - Whiteheads Creek Landscape Guardians (the Landscape Guardians), the Waubra Foundation and the proponent. Much of the material submitted by the respondents went far beyond the leave granted by the Tribunal, which did not reopen completely the topic of health and wellbeing. In particular, a considerable amount of evidence was directed to the alleged effects of a large (140 turbine) wind farm that has recently commenced operating at Macarthur in western Victoria.
2. The only direct expert evidence submitted was a further report from Mr Stephen Cooper, who gave evidence at the initial hearing on behalf of the Landscape Guardians, and a William Lesley Huson, who prepared a report in relation to the Macarthur wind farm on behalf of the Waubra Foundation. Mr Huson sought to amplify his report with a supplementary document served two business days before the recommencement of the hearing. Mr Cooper was not called at the further hearing.
3. The only evidence directed to the issue flagged by the Tribunal in its interim decision in relation to which it would receive further evidence, namely, the incidence of health problems in the population surrounding wind farms, was a survey by Ms Anne Schafer of persons living near the newly commissioned Macarthur wind farm, and an analysis prepared by Mr David Griffin, the General Manager - Development of the proponent, of complaints made by residents living in the vicinity of other wind farms operated by Infigen, the parent company of the proponent. This evidence will be discussed later.
4. The rest of the material submitted by the respondents consisted of technical literature obtained from scientific journals or seminars. The respondents did not seek to call any of the authors of this literature, which therefore remained untested. In particular no evidence was called to contest anything contained in the Health Department publication, although much criticism was made of that document in submissions from the bar table by the respondents and in two letters from academic acousticians.
5. With the exception of a small section of Mr Huson's supplementary report the additional material was admitted in evidence over the objections of Mr Power, the solicitor for the proponent. This was done pursuant to the Tribunal's ability under s.98(1)(c) Victorian Civil and Administrative Tribunal Act 1998 (the Act) to inform itself as it sees fit subject to the rules of natural justice. Mr Power was given leave to respond to this material including an adjournment for this purpose if considered necessary. Mr Power did not seek to act on this leave.
6. Given the time that has elapsed since the hearing in February and March the Tribunal must now make a final decision in accordance with the directive given by s. 98(1)(d) of the Act to "determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit". In making this decision it is helpful to return to first principles.

1. Town planners must be jacks of all trades, which is not to say that they are masters of none. Planners must know something of a multitude of disciplines ranging from architecture, acoustics, heritage, hydrology, to traffic management, social impacts and many others.
2. It is also timely to revisit what was said by Deputy President Dwyer in Hunt Club Commercial Pty Ltd v Casey CC[1]. The learned Deputy President said (at paras 15 and 16):

[15] Town planning is not a panacea for all perceived social ills, nor is planning decision-making a forum for addressing all issues of social or community concern. At its heart, planning is about the use, development and protection of land. It has a spatial context that is primarily concerned with the fair, orderly, economic and sustainable use and development of land. Town planning does not involve itself in moral judgements nor, subject to this locational or spatial perspective, in the operation of a competitive market economy in which certain goods and services are lawfully made, sold or consumed. Whilst town planning seeks to secure a pleasant, efficient and safe working, living and recreational environment, it is not the role of town planning to address all issues of public health, nor to regulate the pricing or general availability of a product to manage the health and well being of a society.

[16] It follows, for example, that it is not the role of a planning decision-maker to consider the broader impacts on society of obesity, when making a decision about the development of land for a particular fast food outlet. The Tribunal has held that it is not its role to consider the potential health effects of electromagnetic radiation from a telecommunications facility that otherwise complies with relevant Australian safety standards, and a planning decision-maker should not pioneer its own separate standards. Similarly, therefore, it is not the role of a planning decision-maker to consider the broader impacts of the abuse or misuse of alcohol in a society, or to pioneer its own standards about the accessibility of alcohol generally in the community, when making a decision about the use or development of land for a liquor outlet. These are all relevant societal concerns, but they are not necessarily relevant planning considerations to a particular statutory planning decision at a local level.

1. To this it might be added that it is not the role of a planning decision maker to set standards in relation to public health, or to second guess the considered statements of bodies or authorities which are expert in the area and which carry a statutory responsibility for regulating the area.
2. Consistently with this thesis the planning controls formulated by statutory planners reflect a synthesis of many disciplines. They draw on the work of experts in various fields to form a matrix which seeks to balance competing interests in the use and development of land, and to implement planning policies which themselves are frequently the product of interdisciplinary coalescence.
3. There are a number of examples of this in the Mitchell Planning Scheme of which the following is a selection.
   • Clause 17.07 - to manage timber production in a way consistent with the National Forest Policy Statement (1992) and the Plantations 20/20 vision (1997). It incorporates the Code of Practice for Timber Production 2007, which is the work of the Department of Environment and Primary Industries (DEPI).
   • Clause 18.04 requires the Australian Noise Exposure Forecasts (ANEF) and the noise contours derived from that document to be observed in the planning of land uses in the vicinity of airfields.
   • Clause 52.10 establishes minimum buffer distances between various industries and storage facilities and sensitive land uses such as residential, hospital or schools. These buffer distances are based essentially on work done by the Environment Protection Authority, which is the statutory authority with expertise and responsibility in these matters.
   • Clause 52.16 applies controls to the removal of vegetation which have been formulated by DEPI, the statutory instrumentality with particular expertise in this area.
   • Clause 52.19 applies planning controls to telecommunications infrastructure and require adherence to the Code of Practice for Telecommunications Facilities in Victoria.
   • Clause 52.26 regulates cattle feedlots and incorporates the Victorian Code for Cattle Feedlots - August 1995. This Code is the product of DEPI formerly the Department of Agriculture, Fisheries and Forestry, which is the government department with special expertise in these matters.
   • Clause 52.31 controls the establishment and expansion of broiler farms, and requires adherence to the Victorian Code for Broiler Farms, 2007, another work of DEPI.
   • Of particular relevance in this case is Clause 52.32 which effectively requires compliance with the New Zealand Standard NZ6808; 2010, Acoustic - Wind Farm Noise. The Tribunal has already found that the proposal is well within the limits specified by the New Zealand standard and reference is made to paras 94-113 of the Tribunal's interim decision.
   • Clause 52.40 sets out specific controls and exemptions which apply to Government funded educational facilities.
4. This is by no means an exhaustive list of the interaction between expert bodies and government instrumentalities with planning controls governing the use and development of land.

1. In similar vein the responsible authority charged with the exercise of planning discretion, and this Tribunal on review, are often presented with the views of a body or instrumentality which is expert in a particular field.
2. In the present case the Tribunal has before it the considered pronouncements of three bodies which are pre-eminent in the field of public health, relating to the effect of wind turbines on the health of nearby residents.
3. First there is the NHMRC. Its 2010 publication Wind Turbines and Health - A Rapid Review of the Evidence was tendered in evidence (Exhibit 40), and its conclusion is set out in para 3 above.
4. The Council subsequently qualified this view to an extent by recommending that "relevant authorities should take a precautionary approach" (Public Statement NEW0048). The Tribunal was informed that the Council is in the process of revisiting its view, but as yet neither a revised review nor a different conclusion has emerged.
5. Secondly, since the interim decision the Tribunal's attention has been drawn to a determination of the NSW Planning Assessment Commission in relation to the Bodangora wind farm project. The determination is dated 30 August 2013. The determination was made available to all parties prior to the recommencement of the hearing.
6. In its determination, the Commission dealt with the issue of health impacts. The determination states (at p. 5):

On Thursday 22 August 2013 the Commission met with the NSW Health representatives Professor Wayne Smith, Director Environmental Health Branch and Dr Jeremy McAnulty, Director Health Protection in NSW. NSW Health was very clear in its advice, which is consistent with that of the National Health and Medical Research Council - that there is no published scientific evidence to link wind turbines with adverse health affects.

NSW Health also made it clear that noise levels at distances of more than one km from the turbines would not cause health impacts and the 2 km buffer provided in this instance is highly precautionary. The Commission has accepted the advice of NSW Health, noting it is consistent with that of other health authorities, such as the Victorian Department of Health, and is satisfied that the proposal does not represent a health risk to the local community, including those at the correctional centre.

In summary NSW Health noted that some noise and associated health impacts could be expected in close proximity to wind turbines, but that the 2 km buffer distance provided in this instance was considered to be very conservative and precautionary from a health perspective. The Public Statement from the National Health and Medical Research Council is still in place and NSW Health is not aware of any evidence that would call for a change to this advice (that there is no published scientific evidence to positively link wind turbines with adverse health effects).

1. Thirdly, shortly after the Tribunal's interim decision the Victorian Department of Health published a document entitled "Wind farms, sound and health". The Department of Health is the statutory authority charged with the protection of public health in the State of Victoria (see Public Health and Wellbeing Act 2008 (Vic) particularly s. 4(2) and (3)). The document was tendered in evidence (Exhibit A107).
2. In Chapter 9 of the publication the Department deals with the potential health effects of wind farm noise. In relation to infrasound the document states (at p. 18):

Some people claim that infrasound may affect health even at an inaudible level. It has been suggested that infrasound can be detected by mechanisms other than hearing, such as touch, vibration and effects on the vestibular system.

However, the available evidence does not support claims that inaudible sounds can have direct physiological effects. Physiological effects on humans have only been detected at levels that are easily audible.

There is no evidence that sound which is at inaudible levels can have a physiological affect on the human body. This is the case for sound at any frequency including infrasound.

1. What then is the responsible planning authority or this Tribunal on review to do when the standards set by expert instrumentalities or the conclusions expressed by specialist authorities are challenged?
2. The Tribunal has consistently taken the view over a long period of time that although it has been described by the Courts as an "expert body" it is not expert in all the areas that make up the planning matrix, and that it should not pioneer new and different standards from those specified by a planning scheme. This Tribunal considers that a similar approach should be taken to the considered views published by statutory authorities or other eminent bodies which are specialist in particular areas.
3. The point is succinctly stated by the then President of the Tribunal, Kellam J. in Hyett v Shire of Corangamite[2]. In that case it was argued that the Australian standard regulating radio frequency emissions from telecommunication facilities gave insufficient regard to the effect of such frequencies on human health. His Honour said (at p. 7):

... The Tribunal is obliged to apply the relevant regulatory standards as it finds them, not to pioneer standards of its own. The creation of new standards is a matter for other authorities. ...

1. More recently, in McClelland v Golden Plains SC[3], Deputy President Gibson said, again in the context of a telecommunications facility (at p. 3):

With respect to health hazards of electro-magnetic radiation from mobile phone tower installations, the Tribunal held that whilst the objectors beliefs were sincerely held, the Tribunal is obliged to apply the relevant regulatory standards as it finds them, not to pioneer standards of its own. The creation of new standards is a matter for other authorities.[4] This principle has been followed in numerous other decisions wherein the Tribunal has found that a telecommunications facility is obliged to meet the relevant standards that apply but it is not a basis to reject an application for reasons relating to potential health impacts if the relevant standards are met.[5]

See also Hutchinson 3G Australia Pty Ltd v City of Casey (2002) VCAT 247 and Marshall and Gangur v Ararat Rural City Council & NBN Co Ltd [2013] VCAT 90.

1. To this consistent line of authority the Tribunal would simply add that if in a particular case there is compelling evidence that a particular standard specified or referenced in a planning scheme, or that the stated position of a specialist authority, is not appropriate in that case, or even no longer appropriate generally, the Tribunal should not feel obliged to adopt it unless, of course, it is a mandatory requirement of the planning scheme.
2. This leads the Tribunal to the question of whether such evidence exists in the present case.

1. As mentioned, the only evidence that answers the description of new evidence for which leave was granted it is the survey conducted by Ms Ann Shafer and the record of complains compiled by Mr Griffin. Additional survey material was submitted by the Waubra Foundation in relation to the Cullerin Range Wind Farm, but no one associated with that survey was called to give evidence. Moreover there are flaws in the survey as pointed out in the supplementary submissions made on behalf of the proponent. To be of any real value such surveys need to be carried out by qualified professionals on respondents selected by accepted random selection methods, and subjected to an analysis that yields statistically valid results. Ultimately the Cullerin Range survey is of little probative value, and it certainly does not prove that a significant number of persons residing in proximity to wind farm turbines suffer adverse health affects.
2. The record of complaints compiled by Mr Griffin is also of little use to the Tribunal because it related only to "health complaints" from which complaints or concerns regarding sleep disturbance were excluded. There is clearly a relationship between sleep disturbance and health, and the Tribunal considers that complaints about sleep disturbance should have been included in the analysis.
3. In relation to Ms Shafer's survey of the Macarthur wind farm the first point to be noted is that the facility comprises 140 turbines, which is nearly an order of magnitude larger than the proposed Cherry Tree wind farm with 16 turbines. It must be questioned how relevant the results of that survey are to the project under consideration in this case even if the results are statistically valid.
4. Assuming that the survey is or could be relevant to the present application, Ms Shafer distributed the 159 survey questionnaires of which 37 households responded. If one makes the not unreasonable assumption that a person suffering sleep disturbance or other ill effects attributed to the wind farm is likely to respond to a survey of this nature the conclusion could be drawn that 77 percent of respondents were not affected. Of the households that did respond 23 reported disturbance, which translates to just over 12 percent of the survey population. An impact of such small proportion is arguably not sufficient to warrant refusal of a wind energy facility that planning policy positively encourages.

1. In its interim decision the Tribunal raised two questions in relation to the issue of health and wellbeing (see para 127).
   • Is there a causal link between sound pressure emissions from wind turbines and adverse health effects on nearby residents.
   • If so, what proportion of the nearby population is affected.
2. A considerable amount of scientific literature was tendered in evidence in relation to the question of the impact of wind turbines on human health. With very few exceptions none of the authors of this literature was called to give evidence, and so the various pronouncements and findings of a number of experts have been unable to be tested. The position can be summarised by saying that there is a scientific literature available to support just about any view that is put forward. This position does not really assist the Tribunal.
3. In relation to a causal link the evidence points to an association, but does not establish causation. On the contrary the additional material submitted after the interim decision, being the views of NSW Health as reported in the Bodangora determination and the Victorian Department of Health publication, expressly state that there is no scientific evidence to link wind turbines with adverse health effects. These are the views of State authorities charged by statute with the protection of public health. These views must be respected.
4. There is certainly no compelling evidence, and indeed no expert evidence at all that was capable of being tested, that would justify the Tribunal adopting a view that is opposed to the clearly stated opinions of the public health authorities. Those opinions are underscored by the currently stated position of the NHMRC.
5. Furthermore, the Tribunal accepts the statements of the health authorities that the 2 km buffer required by clause 52.32 Mitchell Planning Scheme itself incorporates the precautionary principle. Indeed there is no other basis for the adoption of that distance.
6. This conclusion makes it unnecessary to answer the second question. However, in deference to the time and effort expended on this case by the parties and many members of the public the Tribunal will make some observations which may be of assistance in the ongoing research relating to these issues.
   • The Tribunal has no doubt that some people who live close to a wind turbine experience adverse health effects, including sleep disturbance. The current state of scientific opinion is that there is no causal link of a physiological nature between these effects and the turbine.
   • The totality of material before the Tribunal suggests, but does not conclusively prove, that these effects are suffered by only a small proportion of the population surrounding a wind farm.

- The paper submitted by the Waubra Foundation entitled Acoustic Noise Associated with the MOD-1 Wind Turbine: Its Source, Impact and Control by M D Kelley and others states (at para 1.2.1):

It is important, first, to place the MOD-1 noise situation in the proper perspective. The nature of the complaint generally did not change materially from the earliest to the latest reports received, and the total number of families known to be affected did not increase above the dozen identified within the first few months, even though more than 1000 families lived within a 3-km radius of the turbine installation.

- The same paper poses the question at para 9.4 "Why were some families annoyed more often than others and why did the situation confine itself to such a small fraction of the overall population living within 3km of the machine? ... The small population fraction bothered by the turbine happened to live in locations where a combination of terrain and refractive focusing reached maximums, or caustics, a good portion of the time."

- The paper presented by Paul Schoner and others at the 5th International Conference on Wind Turbine Noise held in Denver in August 2013, also submitted by the Waubra Foundation, states:

For at least four decades there have been reports in the scientific literature of people being made ill by low-frequency sound and infrasound (Dawson 1982; Tesarz 1997).

Currently, the same problems are appearing in the vicinity of wind farms, and as in 1982 and earlier, nobody understands how these problems come to be; nobody understands why only a fraction of the population is affected; nobody understands how the sound can be below the threshold of hearing and be affecting people.

- The admittedly broad brush analysis of Ms Shafer's survey set out above suggests that only a small proportion of the surrounding population is affected.

1. So even if the first question could be answered in the affirmative, there is not sufficient evidence to establish that the proportion of the population residing in proximity to a wind farm which experiences adverse health effects is large enough to warrant refusal of a land use that is positively encouraged by planning policy. Such evidence as exists suggests that only a small proportion is affected. This view is strengthened when the proximity is required to be no less than 2 kilometres.

1. Mr Stuart Clark is to be commended for his diligence in preparing a further submission in relation to the fire risks he claims are presented by the project. His submission clearly took much time and effort. However, this is an issue that was decided by the Tribunal in its interim decision (see paragraphs 139 - 142) and not one in relation to which the Tribunal granted leave for further evidence or submissions.

1. Because of the nature of the proposed land use and the complexity of the planning provisions relevant to its approval the permit conditions proposed by the responsible authority are complex. The Tribunal has received lengthy submissions from a number of the parties in relation to conditions and how they should be resolved in the event that it is decided to grant a permit.
2. The Tribunal does not intend to catalogue the numerous decisions it has made about competing submissions in respect of various aspects of the proposed conditions. Our decisions in relation to conditions largely follow from the conclusions set out in our reasons above and in April. However, the Tribunal does make the following general observations.
3. The planning provisions governing the decision provide for a range of amenity outcomes which are applicable to dwellings existing at the time the application is made. The permit conditions relating to amenity impacts should be framed with this in mind.
4. In relation to noise compliance testing the Tribunal has broadly accepted the modifications proposed by the applicant, but has incorporated additional measures into the proposed complaints response system to ensure that there are appropriate protocols for carrying out noise assessments in response to complaints and that the operational data necessary for an assessment under the New Zealand standard is retained and made available to the responsible authority when necessary.
5. The Tribunal does not accept that the permit conditions need to refer to the High Amenity Area provisions of the New Zealand standard because it has not been established that any such area could reasonably be identified within the environs of this wind energy facility. However we observe that beyond the 2 km buffer provided for in the planning scheme, noise levels are likely to be in the order of noise levels which would comply with the high amenity area provisions.
6. The noise impact assessments provided to the Tribunal demonstrate that the proposed wind energy facility will comply with the New Zealand standard. The permit conditions provide a mechanism to deal with unforeseen circumstances in which the noise standard is not achieved.
7. The Tribunal does not think it reasonable to require the applicant to implement some form of automatic noise control on the basis of a purely theoretical proposal for the implementation of such a system.
8. Road access to the wind energy facility is proposed from the north via Kobyboyn Road and Homewood Road. The Tribunal's role is to consider the proposal put forward in the permit application, not some alternative proposal. In this case it is noted that the relevant road authorities do not oppose the proposed route. The Tribunal accepts that the construction period will be disruptive but not to the extent that it is not unmanageable.
9. The conditions proposed provide an adequate mechanism for traffic management on Homewood Road and in implementing these conditions the responsible authority can have regard to the views of affected road users.
10. Offset planting should be to the satisfaction of the responsible authority and the DEPI. Vegetation offsets should be reviewed after the completion of construction to have regard to any unforseen changes to impacts.
11. The program for voluntary landscape screening proposed by the permit conditions should not be extended to dwellings beyond the 3 km radius proposed because we do not consider that the visual impact of the proposed wind energy facility beyond 3 km justifies measures to ameliorate that impact. Moreover, the voluntary program should only require that views from dwellings be screened not views from rural properties generally.

870 Kobyboyn Road, Whiteheads Creek and 900 Greenslopes Road, Trawool

• Develop and use the land the subject of the application for a wind energy facility

1. Before the development starts, development plans must be prepared to the satisfaction of the Responsible Authority. When approved, the plans will be endorsed by the Responsible Authority and will then form part of this permit. The plans must be fully dimensioned, drawn to a scale of either 1:500 or 1:5000 (or as otherwise agreed which shows the required detail) and three copies must be provided. The plans must be generally in accordance with the application plans as amended by the substituted plans prepared by Aurecon Australia Pty Ltd filed in the Tribunal on 30 November 2012, but modified to show:

(a) the location of the transmission line to follow the alignment shown as Option A in Figure 16 on page 82 of Brett Lane & Associates Pty Ltd report "Cherry Tree Wind Farm; Flora, Fauna, Habitat Hectare and Net Gain Analysis" dated June 2012;

(b) the location, setbacks to property boundaries, layout and dimensions of all on-site buildings and works including all turbines, access tracks, underground and overground cables, any temporary concrete batching plant, the substation, the switchyard, any designated car parking areas, and ancillary works such as construction compounds, fire fighting infrastructure and water tanks, as well as off-site road works;

(i) details of the model and capacity of the turbines to be installed;

(ii) elevations and dimensions of the turbines, including overall maximum height of turbines to the tip of the rotor blade when vertical, and base diameter at ground level, including tower and concrete base;

(iv) global positioning system coordinates using WGS84 datum for each turbine;

- each dwelling (if any) within 2 km of the turbine;

(i) locations, elevations and dimensions of the buildings and works including car parking areas;

(ii) materials and finishes of the buildings and works;

(e) the location, size, type and intensity of any lighting (including aviation safety lighting), any directional screening or baffling of lighting;

(f) any directional or business identification signage and any required safety signage; and

(g) any staging of the permitted development, including the identification and timetabling of any required pre-construction works.

(h) the Tree Protection Zones of all scattered remnant trees and large and very large old trees to be retained within 100 metres of the construction area, in accordance with conditions 55 to 59 of this Permit;

(i) any revisions to the location of the turbines or their models (where they differ from the specifications considered in the application reports and expert witness statements filed for the Applicant in VCAT Proceeding No P2910/2012) arising as a consequence of the environmental noise and electromagnetic interference assessments required under this permit.

1. Despite any other condition of this permit, no plans will be endorsed by the Responsible Authority, and no variation to the endorsed plans will be approved by the Responsible Authority, which allow a turbine to be located within 2kms of a dwelling existing as at 29 January 2013 (measured from closest point of the turbine to closest point of the dwelling) unless evidence has been provided to the satisfaction of the Responsible Authority that the owner of the dwelling has consented in writing to the location of the turbine.
2. Except as permitted under Condition 5, and subject to Condition 4, the use and development as shown on the endorsed plans must not be altered or modified without the prior written consent of the Responsible Authority.
3. The Responsible Authority will not consent to an alteration or modification of the use and development as shown on the endorsed plans under Condition 3 unless the Responsible Authority is satisfied that the alteration or modification will not give rise to an adverse change to assessed landscape, vegetation, cultural heritage, visual amenity, shadow flicker, noise, electromagnetic interference, fire risk or aviation impacts. Any application for the consent of the Responsible Authority for an alteration or modification to the endorsed plans under Condition 3 must be accompanied by supporting material addressing the matters referred to in this condition, to the satisfaction of the Responsible Authority;

1. Subject to Condition 4, micro-siting of turbines (as defined in this condition) is permitted with the consent of the Responsible Authority. Any micro-siting of turbines in accordance with this condition and Condition 6 will be regarded as being in accordance with the endorsed plans, and no amendment to the endorsed plans will be required to reflect the micro-siting of turbines. For the purpose of this permit, micro-siting of turbines means an alteration to the siting of a turbine by not more than 100 metres, provided that the turbine is not relocated any closer to, or results in:

(a) a dwelling existing as at 29 January 2013 that is within 2km of the turbine (measured from closest point of the turbine to closest point of the existing dwelling), unless evidence has been provided to the satisfaction of the Responsible Authority that the owner of the dwelling has consented in writing to the location of the turbine; or

(b) the removal of any additional remnant native vegetation.

For the purpose of this condition the micro-siting of turbines includes any consequential changes to access tracks and electricity reticulation lines.

1. The Responsible Authority will not consent to micro-siting of turbines unless satisfied that it will not give rise to an adverse change to assessed landscape, vegetation, cultural heritage, visual amenity, shadow flicker, noise, electromagnetic interference, fire risk or aviation impacts when compared to the site shown on the endorsed plans.

Any application for the consent of the Responsible Authority to micro-siting a turbine under Condition 5 must be accompanied by supporting material addressing the matters referred to in this condition, to the satisfaction of the Responsible Authority and the Department of Environment and Primary Industries.

1. The wind energy facility must meet the following requirements:

(a) the wind energy facility must comprise no more than 16 turbines;

(b) hub height must not exceed 100 metres in height;

(c) the overall maximum height of the turbines (to the tip of the rotor blade when vertical) must not exceed 159 metres above natural ground level;

(d) turbines must be mounted on a tubular tower with a height of no greater than 100 metres;

(e) each turbine is to have not more than three rotor blades;

(f) the transformer associated with each wind generator must be located beside each tower and pad mounted, or enclosed within the tower structure;

(g) the colours and finishes of all buildings and works (including turbines) must be of a non-reflective colour and finish to the satisfaction of the responsible authority;

(h) electricity reticulation lines associated with the wind energy facility must be placed underground to connect to the wind farm substation unless otherwise agreed in writing by the Responsible Authority.

1. Within six months of the date of endorsement of the development plans under Condition 1, a program of voluntary off-site landscape mitigation works must be prepared, to the satisfaction of the Responsible Authority. The off-site landscaping mitigation works program must provide details of planting or other treatments that will be used to reduce the visual impact of the turbines at all non-associated dwellings existing as at 29 January 2013 within 3 kilometres of the nearest turbine
2. The operator of the wind energy facility must make offers to undertake the off-site landscape mitigation works specified in the program to the relevant landowners within four weeks after the Responsible Authority confirms that it is satisfied with the program under Condition 8.
3. If one or more of the offers to landowners referred to in Condition 9 is accepted, an off-site landscaping plan must be prepared, in consultation with the relevant landowners and to the satisfaction of the Responsible Authority. The plans must be fully dimensioned, drawn to a scale of 1:500 or 1:5000 (or as otherwise agreed which shows the required detail) and three copies must be provided. When approved, the off-site landscaping plan will be endorsed by the Responsible Authority. The off-site landscape plan must include:

(a) details of the properties on which off-site landscaping mitigation works will be undertaken, and the specific locations of the landscaping works on those properties

(b) details of plant species proposed to be used in the landscaping, including height and spread at maturity

(c) a timetable for implementation of the landscaping works (with each stage of the landscaping works to be completed not more than 12 months after the completion of the wind energy facility to which the landscaping works relate)

(d) a maintenance and monitoring program to ensure the ongoing health of the landscaping.

1. Provided access to the relevant properties has been granted in writing and on acceptable terms to the Applicant and the consultant preparing the plan within six months of the date of endorsement, the landscaping as shown on the endorsed off-site landscape plan must be completed in accordance with the implementation timetable to the satisfaction of the Responsible Authority. The Applicant is not required to undertake the landscaping if the landowner has not granted access to the Applicant and its consultant on reasonable terms, or if the Applicant has paid an amount equivalent to the cost of the landscaping works to the landowner at the landowner's request.

1. The operation of the wind energy facility must comply with New Zealand Standard 6808:2010, Acoustics - Wind Farm Noise (the Standard) as modified by this condition to the satisfaction of the Responsible Authority. The following requirements apply:

(a) The operator must ensure that at any wind speed, wind energy facility sound levels at noise sensitive locations in existence as at 29 January 2013 (as defined in the Standard) do not exceed a noise limit of 40dB LA90 (10 min) when measured in accordance with the Standard, provided that where the circumstances specified in Condition 12(b) apply, the noise limit of 40dB LA90 (10 min) will be modified as specified in Condition 12(b).

(b) At the specified assessment positions referred to in Condition 13(b), the noise limit of 40dB LA90 (10 min) referred to in Condition 12(a) will be modified in the following way when the following circumstances exist:

(i) where the background sound level is greater than 35 dB L A90 (10 min), the noise limit will be the background sound level L A90 (10 min) plus 5 dB; and

(ii) where special audible characteristics, including tonality, impulsive sound or amplitude modulation occur, the noise limit will be modified by applying a penalty of up to + 6 dB LA90 in accordance with section 5.4 of the Standard.

1. For the purposes of determining compliance, the following requirements apply:

(a) Acoustic compliance reports shall be prepared by a suitably qualified and experienced independent acoustic engineer to demonstrate compliance with the noise limits specified in the Standard and submitted to the Responsible Authority.

(b) Noise assessment positions must be located according to the Standard, and shown on a map.

(c) An initial acoustic compliance report must be prepared and submitted to the Responsible Authority following completion of the first turbine, and at six monthly intervals thereafter until full operation (following construction and commissioning.

(d) A final compliance report must be submitted to the Responsible Authority after a 12 month period following full operation of the wind energy facility.

(e) Compliance reports should be publicly available.

(f) Following facility commissioning, all complaints shall be managed following procedures set out in the noise complaints management plan.

1. For the purposes of complaints evaluation, the following requirements apply:

(a) Post installation sound levels shall, where practical, be measured at the same locations where the background sound levels were determined (GPS coordinates and a map showing these locations is to be provided).

(b) If a breach in compliance is detected, or an acoustic investigation is required under the noise complaints plan endorsed under condition 15, an independent assessment report must be prepared at the cost of the permit holder and by a suitably qualified and experienced independent acoustic engineer to:

(i) identify the weather or operational conditions associated with the complaint / breach;

(ii) analyse the uncertainty and confidence levels in the monitoring, and the steps taken to reduce uncertainty;

(iii) target assessment to identify the cause and remediation actions; and

(iv) submit a remediation plan to the satisfaction of the Responsible Authority outlining, the investigation process, complainant communications, actions and timelines to resolve the complaint/breach.

(c) Following the initial post-construction reporting process, additional independent assessment may be requested by the Responsible Authority at any time, where complaints are received and are considered to reasonably warrant investigation.

(d) If investigations indicate special audible characteristics are potentially occurring, procedures outlined in Appendix B of the Standard should be applied.

1. Before the commencement of operation, the permit holder must prepare a complaint register, investigation and response plan to the satisfaction of the Responsible Authority (council). The plan shall include:

(a) Measures to communicate to the public the mechanism for making a query or complaint; including:

(i) a toll free telephone number and email contact for complaints and queries made to the operator; and

(ii) a telephone number and email address (where available) for complaints and queries made to council.

(b) Measures for the tabular recording of complaint information in a register of complaints for each complaint received, including:

(ii) any applicable property reference number if connected to a background testing location;

(iv) a receipt number for each complaint which is to be communicated to the complainant; and

(v) the time, prevailing conditions and description of the complainant's concerns including the potential incidence of special audible characteristics and the processes of investigation to resolve the complaint.

The register is to be maintained by the operators for the duration of the operation of the wind energy facility and must be made available to the council on request.

(c) A measure setting out the circumstances in which a complaint made to either the operator or council triggers a requirement for an acoustic investigation under condition 14(b).

(d) A requirement that the operational and climate information is recorded and retained by the operator to the extent necessary for a noise complaint evaluation to establish compliance with the New Zealand Standard 6808:2010, Acoustics - Wind Farm Noise under condition 14.

(e) A requirement that the information recorded under condition 15(d) is provided to the council at its request when such information is reasonably required for enforcement of the conditions of this permit (the provision of this information can be subject to undertakings as to confidentiality provided that the undertaking is not an obstacle to the enforcement of permit conditions).

(f) A report including a reference map of complaint locations, and outlining complaints, investigation and remediation actions is to be provided to the Responsible Authority on an annual basis and must be to the satisfaction of the Responsible Authority.

The plan must be implemented for the duration of the operation of the wind energy facility to the satisfaction of council.

1. Shadow flicker from the wind energy facility must not exceed 30 hours per annum at any dwelling existing at 29 January 2013, unless the operator of the wind energy facility has entered into an agreement with a landowner under which the landowner acknowledges and accepts that shadow flicker may exceed 30 hours per annum at the landowner's dwelling. Evidence of the agreement must be provided to the satisfaction of the Responsible Authority.

Blade shadow flicker complaint evaluation and response plan

1. Before the first turbine is commissioned, the operator of the wind energy facility must prepare a detailed shadow flicker complaint evaluation and response plan, to the satisfaction of the Responsible Authority. The plan must include the following elements:

(b) procedures for assessing any alleged breach of Condition 16.

1. The operator of the wind energy facility must implement and comply with the approved shadow flicker complaint evaluation and response plan.

Blade Glint, Electromagnetic Interference and Television and Radio Reception and Interference

1. Before the commencement of construction of the wind energy facility, a pre-construction survey must be carried out to determine television and radio reception strength in the area within 5 km of the site and in which dwellings are located as at 29 January 2013, to the satisfaction of the Responsible Authority.

The pre-construction survey must include testing at selected locations to enable the average television and radio reception strength in the area within 5 kms of the site to be determined. The specific locations of testing will be determined by an independent television and radio monitoring specialist, to the satisfaction of the Responsible Authority

1. If, following commencement of the operation of the wind energy facility, a complaint is received regarding the wind energy facility having an adverse effect on television or radio reception at any dwelling within 5 km of the site which existed at 29 January 2013, a post-construction survey must be carried out at the dwelling.
2. If the post-construction survey establishes any increase in interference to reception as a result of the wind energy facility, the operator of the wind energy facility must undertake measures to mitigate the interference and return the affected reception to pre-construction quality to the satisfaction of the Responsible Authority.

1. Access tracks within the site must be sited and designed to minimise impacts on overland flows, soil erosion, the landscape value of the site, environmentally sensitive areas and, where appropriate, the farming activities on the site to the satisfaction of the Responsible Authority and the Department of Environment and Primary Industries.
2. Access tracks must be surfaced in a manner which does not unduly contrast with the surrounding landscape.
3. Access tracks within the site must be provided and constructed prior to the transport of any turbine and substation components to a particular part of the site to the satisfaction of the Responsible Authority.

1. External lighting of infrastructure associated with the wind energy facility is not permitted other than:

(b) aviation obstacle lighting in accordance with Condition 26; and

(c) lighting necessary in the case of an emergency or for operational call-outs at reasonable times,

Each of these lighting arrangements must be to the satisfaction of the Responsible Authority.

1. If the proponent proposes to install aviation obstacle lighting, then the aviation obstacle lighting must be provided to three turbines to define the periphery of the wind energy facility, or as otherwise required by CASA, and must meet the following requirements:

(a) for each lit turbine, the lighting must consist of a pair of lights mounted above the nacelle so that at least one light is visible from an aircraft approaching from any direction;

(b) each light must be a red, medium intensity, flashing light, or as required by CASA;

(c) each light must be shielded so as to restrict the vertical spread of light to not more than 3.0 degrees and light spread below the horizontal to not more than 1.0 degree;

(e) the duration of the light flash must be the minimum period recommended by CASA and the duration of the period between the flashes must be the maximum period recommended by CASA; and

(f) the lights are to switch on and off during ambient lighting conditions as recommended by CASA.

1. Before the wind energy facility is commissioned, a lighting maintenance plan must be prepared to the satisfaction of the Responsible Authority. When approved, the lighting maintenance plan will be endorsed by the Responsible Authority and will then form part of this permit. The operator of the wind energy facility must implement and comply with the endorsed lighting maintenance plan.

1. Within 14 days of the endorsement of plans under Condition 1, a copy of the plans and turbine coordinates must be provided to the following entities by the permit holder, to enable details of the wind energy facility to be shown on aeronautical charts of the area:

(b) the Department of Defence (RAAF Aeronautical Information Service);

(d) the Aerial Agriculture Association of Australia; and

(e) any organisation responsible for providing air ambulance services in the area.

1. Before the commencement of any works and before the engagement of any haulage contractors, a traffic management plan must be prepared by a VicRoads pre-qualified traffic engineer in consultation with VicRoads and the Mitchell Shire Council in their capacity as road authorities under the Road Management Act 2004 for local and arterial (public) roads used to transport material to/from and within the vicinity of the wind energy facility. The traffic management plan must be to the satisfaction of VicRoads, the Department of Environment and Primary Industries and the Mitchell Shire Council. When approved, the traffic management plan will be endorsed by VicRoads, the Department of Environment and Primary Industries and the responsible authority and form part of the permit.

The traffic management plan, without limiting the generality of the plan, must include:

(a) prior to commencement of works, an existing conditions survey of public roads and associated infrastructure that may be used in connection with the wind energy facility (for access, delivery of material, pre-construction or construction purposes), including details of the suitability of the proponent's use, design, condition and construction standard of the relevant public roads and bridges;

(b) identification and assessment of the road and non-road infrastructure at risk from damage, deterioration or dilapidation arising from the construction and operation of the wind energy facility, including but not limited to Homewood Road and Kobyboyn Road;

(c) the designation of all vehicle access points to the site from surrounding roads. Vehicle access points must be designed and located to ensure safe sight distances, turning movements, and avoid potential through traffic conflicts;

(d) the designation and suitability assessment of appropriate pre-construction, construction and transport vehicle routes to and from the site;

(e) engineering plans and reporting demonstrating whether, and if so, how truck movements to and from the site, including turning movements, can be safely accommodated within the road reserve. Mitigation measures are to be developed by the proponent and to the satisfaction of VicRoads, the Department of Environment and Primary Industries and the Mitchell Shire Council for all hazards including, but not limited to; oversize and overmass haulage, traffic management, removal of roadside vegetation, reduction in speed limits, alteration to any road furniture or intersection, emergency management, dust suppressant measures and risk management;

(f) recommendations regarding the need for road, bridge and intersection upgrades to accommodate any additional traffic, oversize or overmass loads, or site access requirements (whether temporary or ongoing). Where upgrades are required, the traffic management plan must include:

(i) detailed engineering plans showing the required works; and

(ii) the timing of when the works are to be undertaken;

(g) a program of regular inspections to be carried out during the construction of the wind energy facility to identify road safety hazards or maintenance works necessary as a result of construction traffic;

(h) a program to ensure safe access to affected residential properties;

(i) the designation of operating hours and speed limits for trucks on routes accessing the site which:

(i) avoid school bus routes and school bus times where relevant; and

(j) stock crossing points to be identified and measures to be taken to manage impacts and avoid disruption addressed;

(k) measures to be taken to manage traffic impacts associated with the construction and ongoing operation of the wind energy facility on the traffic volumes and flows on surrounding roads;

(l) a program to rehabilitate existing road and associated infrastructure, including the infrastructure identified in condition 29(b), to a safe and usable condition to a standard no less than what is required to support the proposed use or the condition identified by the surveys required under Condition 29(a), whichever is the greater:

(ii) at the conclusion of the construction of the wind energy facility;

(iii) after the first two years during the operation of the wind energy facility;

(iv) every five years during the operation of the wind energy facility (if required by the road authority);

(vi) at the conclusion of the decommissioning of the wind energy facility;

(m) demonstration that all necessary permits have been obtained for the removal of vegetation within the road reserve for the purpose of providing access to the site for material;

(n) an environmental management plan to address vehicle hygiene, dust management and other environmental matters;

(o) a program to immediately rehabilitate existing public roads during construction of the wind energy facility in the event that damage is caused to public roads and to ensure that any public road surface is of a safe and usable quality;

(p) a statement that the permit holder is responsible for any damage caused to construction vehicle or other vehicles associated with the development of the wind energy facility in the event that the safe and usable quality of any public road is degraded or compromised as a result of the development, and that Mitchel Shire Council, the Department of Environment and Primary Industries and/or VicRoads will not accept liability for any such damage.

1. By no later than three (3) months after the date of completion of construction of the wind energy facility, a post construction conditions survey of public roads and designated road access points under condition 29(c) that have been used or disturbed in connection with the construction of the wind energy facility must be submitted to the satisfaction of VicRoads and the responsible authority. The report must include details of any dilapidation or damage to the roads and non-road infrastructure and a program of rehabilitation in accordance with the requirements of the approved Traffic Management Plan.
2. The traffic management, road upgrade, rehabilitation, replacement and maintenance works identified in the endorsed Traffic Management Plan, including any infrastructure identified as being at risk in the Traffic Management Plan, must be carried out by the Permit Holder in accordance with the endorsed traffic management plan to the satisfaction of VicRoads and the responsible authority.
3. Works or other requirements identified during surveys in accordance with Condition 29(g) above, or any other remedial works as requested by a road authority, must be completed expeditiously to the satisfaction of VicRoads and the responsible authority.
4. All works, reporting and the provision of VicRoads road escort vehicles and personnel are to be at no cost to VicRoads or the Mitchell Shire Council, including but not limited to: all additional route survey work, together with all associated VicRoads bridge assessments for the over dimensional and overmass vehicles and their loads, and all additional traffic management resources and equipment such as variable message signs.

General requirement for an environmental management plan

1. Before the development starts, an environmental management plan must be prepared, to the satisfaction of the Responsible Authority. When approved, the environmental management plan will be endorsed by the Responsible Authority and will then form part of this permit. The environmental management plan:

(a) must be generally in accordance with the environmental management plan submitted with the application amended to have regard to the development plans endorsed under condition 1 of this Permit;

(b) must be prepared in consultation with the agencies specified in Conditions 36 to 45 or any other agency as directed by the Responsible Authority;

(d) must be in accordance with all applicable EPA requirements; and

(e) must meet the requirements of Conditions 36 to 45 below.

1. The use and development must be carried out in accordance with the endorsed environmental management plan, to the satisfaction of the Responsible Authority.

1. The environmental management plan must include a construction and work site management plan. The construction and work site management plan must include:

(a) the identification of fuels, other hazardous materials and all other potential contaminants stored or used on site during the construction phase of the wind energy facility, and appropriate storage, construction and operational methods to control any identified contamination risks;

(b) procedures for managing potential spills and leaks and pollution incidents, including incorporation of appropriate pollution control measures outlined in EPA Publication 480 Environmental Guidelines for Major Construction Sites;

(c) procedures to suppress dust emissions from construction-related activities. Appropriate measures may include water spraying of roads and stockpiles, stabilising surfaces, temporary screening and wind fences, modifying construction activities during periods of heightened winds and revegetating exposed areas as soon as practicable;

(d) procedures for managing noise emissions from construction-related activities;

(e) criteria for the siting of any temporary concrete batching plant associated with the development of the wind energy facility and the procedure for its removal and reinstatement of the site once its use finishes. The establishment and operation of any temporary concrete batching plant must be designed and operated in accordance with EPA Publication 628 Environmental Guidelines for the Concrete Batching Industry;

(f) appropriate sanitary facilities to be provided for construction and maintenance staff, which must be designed and operated in accordance with EPA Publication 891.2 Code of Practice - Onsite wastewater management (December 2008);

(g) the identification of waste re-use, recycling and disposal procedures;

(h) a timetable, where practicable, for the construction of turbine bases, access tracks and power cabling during warmer months, to minimise impacts on ephemeral wetlands, local fauna and sediment mobilisation;

(i) procedures to ensure that construction vehicles and equipment use designated tracks and works areas to avoid impacts on native vegetation;

(j) procedures for covering trenches and holes at night, and filling trenches as soon as practical after excavation, to protect native fauna; and

(k) the removal of works, buildings and staging areas on completion of the construction phase of the project.

Sediment, erosion and water quality management plan

1. The environmental management plan must include a sediment, erosion and water quality management plan which must be prepared in consultation with the Goulburn Broken Catchment Management Authority.

The sediment, erosion and water quality management plan must include:

(a) identification of all construction and operational processes that could potentially lead to water contamination;

(b) procedures to ensure that silt from batters, cut-off drains, table drains and road works is retained on the site during and after construction and replaced as soon as possible. To this end:

(i) all land disturbances must be confined to a minimum practical working area;

(ii) soil to be removed must be stockpiled and separate soil horizons must be retained in separate stockpiles and not mixed, and soil must be replaced as soon as possible in sequence; and

(iii) stockpiles must be located away from drainage lines and other environmentally sensitive areas;

(c) All buildings and structures (excepting overhead transmission line structure) shall be a minimum of 30 metres from a waterway and a minimum of 50 metres from the Goulburn River;

(d) With the exception of waterway crossings permitted under the Water Act 1967, the site set−out and implementation of works shall be designed and constructed to maintain a minimum buffer width of undisturbed vegetation of 30 metres along waterways;

(e) the installation of geo-textile silt fences (with sedimentation basins where appropriate) on all drainage lines from the site which are likely to receive run-off from disturbed areas;

(f) procedures to ensure that steep batters are treated in accordance with EPA Publication 275 Construction Techniques for Sediment Pollution Control;

(g) procedures for waste water discharge management;

(h) a process for overland flow management to prevent the concentration and diversion of waters onto steep or erosion prone slopes;

(i) pollution management measures for stored and stockpiled materials including ensuring storage and stockpiling of materials does not occur in environmentally sensitive areas, waste materials, litter, contaminated run-off and any other potential source of pollution to ground or surface waters;

(j) incorporation of appropriate pollution control measures outlined in EPA Publication 480 Environmental Guidelines for Major Construction Sites;

(k) an agreed program and appropriate capacity for annual inspection and regular maintenance of any on-site wastewater management system;

(l) siting of any concrete batching plant and any on-site wastewater disposal treatment fields at least 100 metres from any watercourse;

(m) a program of inspection and remediation of localised erosion within a specified response time;

(n) measures to allow rain falling on construction areas to be managed to enable local infiltration into groundwater to achieve minimal reduction in net recharge volumes to the ground water system; and

The section of access road to be upgraded crosses designated waterways a number of times. If these crossings are to be upgraded a licence for the works shall be required under Section 67 of the Water Act, 1989. A licence shall be required where services cross designated waterways.

1. The environmental management plan must include a hydrocarbon and hazardous substances plan. The hydrocarbon and hazardous substances plan must include:

(a) procedures for any on-site, permanent post-construction storage of fuels, lubricants, waste oil or other hazardous substances or potential contaminants to be in bunded areas; and

(b) contingency measures to ensure that any chemical or oil spills are contained on-site and cleaned up in accordance with EPA requirements.

1. The environmental management plan must include a wildfire prevention and emergency response plan prepared in consultation with and to the satisfaction of the CFA and the Department of Environment and Primary Industries. The wildfire prevention and emergency response plan must include:

(a) criteria for the provision of static water supply tanks solely for fire fighting purposes, including minimum capacities, appropriate connections and signage;

(b) procedures for vegetation management, fuel control and the provision of fire fighting equipment during declared fire danger periods;

(c) minimum standards for access roads and tracks to allow access for fire fighting vehicles, including criteria for access to static water supply tanks for fire fighting vehicles;

(d) a requirement that, within three months after the commencement of the operation of the wind energy facility, the operator of the wind energy facility facilitates a familiarisation visit to the site and explanation of emergency services procedures for:

(i) the CFA (CFA Headquarters, Hume Regional Office (District 22) and Kobyboyn CFA);

(iii) Mitchell Shire Council and Murrindindi Shire Council's Municipal Emergency Management Committees;

(e) subsequent familiarisation sessions for new personnel of the organisations referred to in Condition 39(d) on a regular basis as required;

(f) if requested, training of personnel of the organisations referred to in Condition 39(d) in relation to suppression of wind energy facility fires.

Blasting management plan (only relevant where blasting is proposed)

1. The environmental management plan must include a blasting management plan. The blasting management plan must include:

(a) name and qualification of the person responsible for blasting;

(b) a description of the location of where explosives will be used;

(c) a plan showing the location of every licensed bore on any property with a boundary within 1 km of the location of the blasting;

(d) identification and assessment of any potentially sensitive site within 1 km of the location of the blasting, including the procedure for pre-blast and post-blast qualitative measurement or monitoring of the effects of the blasting on such sites;

(e) the procedure for site clearance and post-blast re-occupation;

(f) the procedure for the storage and handling of explosives;

(g) a requirement that blasting can only occur after at least 48 hours prior written notification of the intention to undertake blasting has been given to the occupants of the properties which are located in whole or in part within 1 km of the location of the proposed blasting; and

(h) a requirement that blasting only be undertaken between the hours of 8am and 4pm.

1. The environmental management plan must include a vegetation management plan to be prepared in consultation with the Department of Environment and Primary Industries. The vegetation management plan must include:

(a) procedures for the rehabilitation of construction zones with appropriate pasture species or native grasses; and

(b) procedures for the rehabilitation of remnant native vegetation along the Homewood Road reserve with appropriate species.

1. The environmental management plan must include a biosecurity management plan to be prepared in consultation with and to the satisfaction of Department of Environment and Primary Industries. The biosecurity management plan must address the risks of entry onto the site, establishment on the site or spread beyond the site of animal or plant pests and disease, or invasive plant and animal species, from people, earthmoving equipment and associated machinery, vehicles, materials and products including (but not limited to) soil, sand, gravel, rock, water, fertiliser, mulch, seed, plants, fodder and animals (referred to in this condition as biosecurity risks). The biosecurity management plan must include:

(a) procedures to prevent biosecurity risks, which may include (but are not limited to):

(i) the cleaning of all plant and equipment before transport onto and off the site, and making sure machinery cleaning/washdown facilities are defined (eg. fenced) and located in disturbed areas; and

(ii) the use of material/products on site which are free of invasive plants and animals;

(b) procedures to control noxious weeds within 100 metres of the construction area using precision methods (eg. spot spraying). These methods should be implemented throughout the project for:

(c) protocol for effective identification of biosecurity risks, early intervention to manage biosecurity risks, ongoing monitoring of biosecurity risks, trace-backs, and integrated control measures when entry, establishment or spread of specific risk targets is identified; and

(d) requirements to comply with approved government or industry standards and procedures for the identification, prevention and management of biosecurity risks that apply from time to time, which include (but are not necessarily limited to):

(i) the Department of Primary Industry's Invasive Plant and Animal Management Policy Framework (undated);

(ii) the Department of Primary Industry's Biosecurity Guidelines for Movement of Equipment Contractors Between Farms (Note Number: AG1171 published in January 2005 and updated in July 2009; and

(iii) the Department of Primary Industry's recommended standards and practices for managing viticulture biosecurity and plant biosecurity risks.

Note: These standards are available at www.depi.vic.gov.au.

1. The environmental management plan must include a training program for construction workers and permanent employees or contractors at the wind energy facility site, including a site induction program relating to the range of issues addressed by the environmental management plan and the Tree Protection requirements of conditions 55 to 59 of this Permit.

1. The environmental management plan must include a program for reporting environmental incidents, including:

(a) a register of environmental incidents, non-conformances and complaints, together with corrective actions taken in response to such incidents, non-conformances or complaints;

(b) identification of the person to whom reports of environmental incidents, non-conformances and complaints should be made.

1. The environmental management plan must include a timetable for implementation of all programs and works referred to in Conditions 36 to 44 above.

1. The environmental management plan must be reviewed and if necessary amended in consultation with the Responsible Authority and other authorities as directed by the Responsible Authority every five years, to reflect operational experience and changes in environmental management standards and techniques.

The amended environmental management plan must be submitted to the Responsible Authority for re-endorsement. Once re-endorsed, the amended environmental management plan will take the place of the earlier environmental management plan and will form part of this permit.

1. Before the development starts, a Bat and Avifauna Management Plan (BAM Plan) must be prepared in consultation with Department of Environment and Primary Industries to the satisfaction of the Responsible Authority. When approved the plan will be endorsed by the Responsible Authority and will then form part of the permit. The BAM Plan must include:

(a) a statement of the objectives and overall strategy for managing and mitigating any significant bird and bat strike arising from the wind energy facility operations

(b) a monitoring program of at least two years duration that:

(i) commences on the commissioning of the last turbine of the first stage of the use and development approved by this permit or such other time approved by the Responsible Authority;

(ii) requires surveys to be undertaken during all seasons to ascertain:

• the species, number, age and sex (if possible) and date of any bird or bat strike;
• the number and species of birds and bats struck at lit versus unlit turbines, if relevant;
• any seasonal and yearly variation in the number of bird and bat strikes;
• whether further detailed investigations of any potential impacts on birds and bats are warranted. Any further detailed investigations required are to be undertaken in consultation with Department of Environment and Primary Industries and to the satisfaction of the Responsible Authority;

(c) procedures for the reporting of any bird and bat strikes to the Responsible Authority and to Department of Environment and Primary Industries within seven days of becoming aware of any strike, identifying where possible whether the strike was at a lit or unlit turbine;

(d) information on the efficiency of searches for carcasses of birds and bats, and, where practicable, information on the rate of removal of carcases by scavengers, so that correction factors can be determined to enable calculations of the total number of mortalities;

(e) procedures for the regular removal of carcasses likely to attract raptors to areas near turbines;

(f) procedures for periodic reporting, within agreed timeframes, of the findings of the monitoring to the Responsible Authority, DEPI and the local community;

(g) recommendations in relation to a mortality rate for specified species which would trigger the requirement for responsive mitigation measures to be undertaken by the operator of the wind energy facility, to the satisfaction of the Responsible Authority and Department of Environment and Primary Industries;

(h) procedures for developing measures, in consultation with the Responsible Authority and Department of Environment and Primary Industries, to offset any impacts detected through the monitoring program, including:

(ii) on-site or off-site habitat enhancement (including management or improvement of habitat or breeding sites);

(iii) markers to be placed on all power lines along the Goulburn River to increase visibility and reduce collision risk.

1. Following the completion of the monitoring program referred to in Condition 47, a report must be submitted to the Responsible Authority and Department of Environment and Primary Industries setting out the findings of the program to the satisfaction of the Responsible Authority. After consideration of this report, the Responsible Authority may direct that further investigation of potential or actual impacts on birds and bats is to be undertaken, in which case:

(a) the extent and details of the further investigation must be to the satisfaction of the Responsible Authority and Department of Environment and Primary Industries;

(b) the investigation must be carried out to the satisfaction of the Responsible Authority and Department of Environment and Primary Industries.

1. The use and development of the wind energy facility must be carried out in accordance with the endorsed BAM Plan to the satisfaction of the Responsible Authority.

1. Before the development starts, a Fauna Management Plan must be prepared in consultation with Department of Environment and Primary Industries and the Responsible Authority to the satisfaction of the Responsible Authority. When approved the Fauna Management Plan will be endorsed by the Responsible Authority and will then form part of the permit. The Fauna Management Plan must include additional targeted surveys for the Bibron's Toadlet. It must include:

(a) management and mitigation measures to address impacts to fauna utilising remnant native vegetation along Homewood Road, including but not limited to:

(i) the avoidance of any hollow bearing trees where practicable;

(ii) installation of nest boxes to compensate for loss of hollows;

(iii) measures to maintain connectivity along Homewood Road to ensure uninterrupted fauna movement; and

(b) salvage and translocation plans for the Squirrel Glider, Brush-tailed Phascogale and Bibron's Toadlet; and

(c) management and mitigation measures to address other impacts to native fauna.

1. During construction of the wind energy facility, any native fauna that is identified as being at risk from the construction activity must be relocated to an area of similar ecological value. The relocation must be undertaken in consultation with and to the satisfaction of the Responsible Authority and Department of Environment and Primary Industries and in accordance with the endorsed Fauna Management Plan. No works shall occur in the affected area until the identified fauna species has been relocated.
2. Before construction works starts in an area where trees are to be removed or lopped, a suitably qualified zoologist must conduct a survey of hollows in those trees to be removed or lopped to identify any native fauna to the satisfaction of the Responsible Authority. Any observed fauna must be relocated to a location to the satisfaction of the Responsible Authority by a zoologist who is suitably qualified and has salvaging experience.

1. Before the development starts, an amended Habitat Hectare and Net Gain Analysis is to be prepared in consultation with the Department of Environment and Primary Industries, to the satisfaction of the Responsible Authority. When the Habitat Hectare and Net Gain Analysis has been endorsed by the Responsible Authority it will then form part of the permit. The Analysis must include:

(a) details of the extent of native vegetation removal to occur including the ecological significance of the vegetation;

(b) a plan showing the native vegetation that is to be removed; and

(c) a revised assessment of the matters recorded in the expert witness statement of Brett Lane & Associates Pty Ltd filed in VCAT Proceeding No P2910/2012 and dated January 2013.

1. Before the development starts, a Native Vegetation Offset Plan must be prepared in consultation with Department of Environment and Primary Industries and the Responsible Authority to the satisfaction of the Responsible Authority. When the Offset Plans have been endorsed by the Responsible Authority, they will then form part of the permit. The Native Vegetation Offset Plan must include:

(a) Appropriate offsets to compensate for the loss of native vegetation;

(iii) type of offsets to be provided for each location;

(iv) details of revegetation including the number of trees, shrubs and other plants, species mix and density;

(vi) methods of permanent protection for the offsets;

(vii) details of any existing native vegetation to be retained including the methods of managing and restoring the native vegetation;

(viii) person(s) responsible for implementing and monitoring the Native Vegetation Offset Plan;

(ix) time frames for implementing the offset plans;

(x) details of any earthworks, drainage and other works; and

(c) The Plan must include a method to secure the offsets, which may be by:

(i) a requirement for the owner to enter into a section 173 agreement in respect of specified land;

(ii) a requirement for the owner to enter a binding agreement with a specified person in order to implement aspects of the offset plan;

(iii) a requirement for the owner to provide a bond as security for completion of any part of the offset plan.

(d) When approved, Native Vegetation Offset Plan must be implemented within 12 months of the commencement of works unless otherwise specified in the Plan. Maintenance and replanting of vegetation is to be undertaken if necessary until all the requisite numbers of plants are effectively established and have survived for at least 3 years.

1. The permit holder must pay the reasonable costs of the responsible authority in the preparation, execution and registration of any agreement to secure offsets in accordance with the endorsed Native Vegetation Offset Plan.
2. On full operation of the wind energy facility the amended Habitat Hectare and Net Gain Analysis and the Native Vegetation Offset Plan must be reviewed and if necessary further amendments must be made having regard to the actual removal of native vegetation during construction in consultation with Department of Environment and Primary Industries and the Responsible Authority to the satisfaction of the Responsible Authority.

1. Before the development starts, a tree protection fence must be erected around all scattered trees and large old trees in habitat zones to be retained within 100 metres of construction areas at to define a 'Tree Protection Zone' (TPZ).
2. Each TPZ must:

(a) be calculated by 12 x the Diameter at Breast Height (DBH) and be in general accordance with the Australian Standard - Protection of Trees of Development Sites (AS 4970-2009); and

(b) be no less than 2 metres and no greater than 15 metres.

(a) be constructed of star pickets and chain mesh or similar to the satisfaction of the Responsible Authority;

(c) display a sturdy weatherproof sign containing the following wording:

"Tree Protection Zone - Access and Storage Prohibited"

(d) not be removed moved or otherwise altered unless with the prior written agreement of the Responsible Authority;

1. There must be no construction works or construction-related activities within the TPZ except where required to permit access along Homewood Road and to permit the safe operation of the grid connection powerline. Any encroachment into the TPZ (including earthworks such as trenching for pipelines or cabling, etc. that disturb the root zone) must not affect more than 10% of the total area of the TPZ, or more than the area considered by a qualified arborist not to prejudice the future stability and survival of the tree. Any circumstances where this is not achievable must be documented and included in the Net Gain Analysis under condition 52.
2. Directional drilling must not be undertaken within TPZs, unless:

(a) the directional drilling bore is at least 600 millimetres deep; and

(b) a qualified arborist has confirmed in writing that the radius of the bore will not significantly damage the tree causing it to be lost in the future.

(c) the establishment of TPZs along Homewood Road is not possible due to the linear nature of this area. As such, a sign at either end of Homewood Road will need to be placed indicating that no trucks and / or machinery will be able to stop along the road. This will not apply to the arborists who will need to access the trees along Homewood Road to undertake the lopping.

1. Before the development starts, the operator of the wind energy facility must provide a security bond to secure:

(a) the performance of works required under Condition 31;

(b) the maintenance of those works for a period of 12 months after the works are completed.

1. The nature of the security bond, and the terms on which it is provided, must be to the satisfaction of the Responsible Authority, and:

(a) the amount of the security bond must be calculated by reference to the value of the works to which the security bond relates;

(i) must remain in place for a period of at least 12 months after the completion of the relevant works to which the security bond relates;

(ii) may only be applied to any works to which the security bond relates that are not completed in accordance with the requirements of this permit;

(iii) will be released at the completion of the maintenance period referred to in Condition 66(b).

1. The site will be secured to the satisfaction of the Responsible Authority.
2. All electrical equipment, spare parts and other equipment and materials associated with the wind energy facility must be located in screened, locked storage areas that are inaccessible to the public, to the satisfaction of the Responsible Authority.
3. Public safety warning signs must be located on all turbine towers, to the satisfaction of the Responsible Authority.

Decommissioning / Section 173 Agreement

1. Before the use of the wind energy facility starts, the operator of the wind energy facility and the owners of the properties which make up the site must enter into an agreement with the Responsible Authority under section 173 of the Planning and Environment Act 1987.

The agreement must require the operator of the wind energy facility to do the following where any or all turbines have permanently ceased to generate electricity:

(a) notify the Responsible Authority in writing of the turbine(s) ceasing operation. Such notification must be given no later than two months after the turbine(s) cease operation;

(b) undertake the following to the satisfaction of the Responsible Authority within such timeframe as may be specified by the Responsible Authority:

(i) remove all above ground non-operational equipment;

(ii) remove and clean up any residual contamination;

(iii) rehabilitate all storage areas, construction areas, access tracks and other areas affected by the decommissioning of the turbine(s), if those areas are not otherwise useful to the on-going use or decommissioning of the wind energy facility;

(iv) submit a decommissioning traffic management plan to the Responsible Authority and, when approved by the Responsible Authority, implement that plan;

(v) submit a post-decommissioning revegetation management plan, including a timetable of works, to the Responsible Authority and, when approved by the Responsible Authority, implement that plan.

1. Application must be made to the Registrar of Titles to register the section 173 agreement on the title to the land under section 181 of the Act within one month after the agreement is executed.
2. The operator of the wind energy facility must pay the reasonable costs of the preparation, execution, registration and enforcement of the section 173 agreement.

1. For the purposes of this permit, the carrying out of preliminary investigative works, including geotechnical investigations, for the purposes of gathering data or making other assessments necessary or desirable in order to prepare the development plans or other plans specified in this permit, is not considered to be commencement of the development.

1. This permit will expire if one of the following circumstances applies:

(a) the development is not started within five years of the date of this permit

(b) the development is not completed within eight years of the date of this permit.

The Responsible Authority may extend the permit if a request is made in writing prior to the expiry of the permit or within three months afterwards.

[1] [2013] VCAT 725

[2] [1999] VCAT 794

[3] [2013] VCAT 59

[4] [1999] VCAT 794 at page 7

[5] For example, see Telstra Ltd v Mornington Peninsula Shire Council [2005] VCAT 863; Hutchison 3G Australia Pty Ltd v Hobsons Bay City Council [2005] VCAT 1470; Optus Mobile Ltd v Whittlesea City Council [2003] VCAT 968; Telstra Corporation Ltd v Casey City Council [2005] VCAT 2348