King & anor v Minister for Planning; Parkesbourne-Mummel Landscape Guardians Inc v Minister for Planning; Gullen Range Wind Farm Pty Limited v Minister for Planning - [2010] NSWLEC 1102 - NSWLEC 2010 case summary — Zoe

NSWNSWLEC

King & anor v Minister for Planning; Parkesbourne-Mummel Landscape Guardians Inc v Minister for Planning; Gullen Range Wind Farm Pty Limited v Minister for Planning

[2010] NSWLEC 1102

Land and Environment Court (NSW)|2010-07-01|Before: Mr J, Mr P

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2010-07-01

Before

Mr J, Mr P

Source

Original judgment source is linked above.

Judgment (269 paragraphs)

[1]

Introduction 9 The Gullen Range runs north-south, generally, commencing some 15 km south of Crookwell on the Southern Tablelands. It comprises two groups of modest hills and saddles - rising a maximum of approximately 100 m above the adjacent valley floors. In common with other areas in this portion of the Southern Tablelands, the predictability and strength of the winds in the locality makes it an attractive location for the erection of a wind farm as is here proposed. 10 The land in the vicinity of the proposed wind farm is zoned 1a Rural Zone. It ranges from cleared flats and slopes with scattered trees to open woodland on the more elevated sections. The most common land use is the grazing of sheep and cattle. The surrounding landholdings vary considerably in their size and a number of smaller holdings should be classified as "lifestyle" allotments. The proposal 11 In August 2007, Epuron Pty Ltd (Epuron) submitted a Major Project application to the Minister to be assessed under Part 3A of the Environmental Planning and Assessment Act 1979 (the Act), for a proposed development of the Gullen Range Wind Farm on the Southern Tablelands of NSW. Because the proposed wind farm exceeded the threshold of generating capacity necessary for it to be declared state significant infrastructure, the Minister became the consent authority for the proposal instead of the council. The application did not specify the number of turbines. However, correspondence from the Department of Planning (the Department) suggests between 80 and 93 turbines were proposed. The proposal is also classed as designated development under Sch 3 of the Environmental Planning and Assessment Regulation 2000 (the Regulation) - cl 18: Electricity generating stations. 12 The proposal is to locate the turbines in four sectors over a distance of approximately 25 km. The proposed sectors are, from north to south, known as Kialla, Bannister, Pomeroy and Gurrundah. 13 Each turbine is to be on a steel tower 85 m high and will have three blades each 47 m long. Each tower will be located on a reinforced concrete footing. Each turbine would generate between 1.75 and 3 MW to be fed into the existing State grid transmission system via a transformer through a combination of underground and overhead cables. The original project also relevantly proposed one substation and the construction or upgrading of access roads. 14 The proponent, a special purpose company and wholly owned subsidiary of Epuron, submitted an Environmental Assessment (EA) to the Department. The EA was placed on public exhibition from 4 August to 5 September 2008. Specialist assessments were carried out by the proponent to assess the impacts of the development on the areas of visual amenity, biodiversity, aviation safety, land value, operational noise, aboriginal archaeology, communications and traffic and transport. These assessment reports (and others not needing to be considered in these proceedings) were included in the EA. 15 In November 2008, the proponent submitted its final submission report to the Department. This report considered and responded to the numerous submissions received as a result of the public exhibition of the EA. The final submission proposed a final number of up to 84 turbines. The only other significant change from the original proposal was an increase of maximum turbine capacity of up to 3.3 MW. The final turbine selection has not yet been made.

[4]

18 At the conclusion of our decision concerning the deleted turbines in the vicinity of the Crookwell airstrip, at para 19 we said: We are not minded to include a contingent condition dealing with this [ possible reinstatement of these turbines ]. We consider that it is appropriate that, if the applicant undertakes such a risk assessment, the question of reinstating those turbines can be considered on a modification application at some future time, not only in light of the risk assessment on aircraft but also in light of such comments as we might make that might be relevant concerning residences in the vicinity and the impact of turbines that are not part of the removal condition by the Minister, (in particular the more northerly of the two Price Jones residences in the vicinity). 19 During the intervening period of time, we have further considered this comment. There are potentially two areas where the reinstatement of any or all of those turbines might warrant findings. The first of them concerns the overall visual impact of the proposal (whether of the northern section or the total proposed wind farm) if any or all of the seven turbines (KIA_ 7 to KIA_14 [in an apparent bout of triskaidekaphobia, there is no KIA_13 - although there are turbines with this number in the other three sectors!]) were to be reinstated and, second, whether the reinstatement of any or all of those turbines would alter our conclusions about the impact of the proposal on any individual property. 20 However, as any conclusion we might draw concerning these turbines would be speculative at best and, in any event, can have no bearing on any matters presently requiring our determination, we have not expressed any views about the acceptability or otherwise of the impacts (if any) of the reinstatement of any or all of these turbines. 21 The appeal by the proponent, Matter No 10700 of 2009, is an appeal pursuant to s 75K of the Act against five conditions of consent. Apart from the reinstatement of turbines near Crookwell airstrip (condition 1.4), the proponent is also seeking the removal or modification of conditions relating to the relocation of turbines (condition1.5), acquisition of certain lots on a property owned by Mr and Mrs King (the Kings' property) (condition 2.24) [Mr and Mrs King are the applicants in Matter No 10517 of 2009 - discussed below], sealing of a section of road (condition 2.44), lighting on turbines (condition 2.44) and annual contributions to the Community Enhancement Program (condition 5.6). Mr Pickles of counsel appeared for the proponent and Mr Clay of counsel for the Minister.

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81 Before we turn to deal with an extent to which this provision, if relevant, would be of utility, we regret that it is appropriate that we make some further commentary on the quality of Mr Mowle's evidence. Mr Mowle prepared a series of air photos on which he had marked those turbines that he considered did not comply with the exclusion zone requirements of the DCP. Mr Griffiths tendered those marked air photos. Those air photos had been used by Mr Mowle to mark, with crosses, those turbines that he considered did not comply with the exclusion zone requirements of the DCP and those that Mr Mowle assessed as compliant were circled. 82 When questioned why the location of turbine POM_19 - some 15 m or so from the boundary of an allotment with not merely a dwelling entitlement but with a fixed location building envelope pursuant to plans incorporated in the development consent (this being one of the allotments in the Kings' subdivision) - was not shown as being a turbine that he considered did not comply with the exclusion zone requirements of the DCP, Mr Mowle conceded that he had, in fact, only made his assessment based on presently existing dwellings on the non-associated properties rather than on the second limb of the exclusion zone tests in the DCP relating to allotments with a dwelling entitlement. 83 Mr Mowle further conceded that, if allotments with dwelling entitlements were taken into account, it would be unlikely that any significant number of turbines in the presently proposed wind farm would satisfy this provision of the DCP. His approach to this issue in the preparation of his evidence demonstrated the same degree of unacceptability, for the same reasons, as earlier discussed. 84 In final submissions, Mr Clay and Mr Pickles both raised the issue of the relevance of the DCP to our decision. Section 75J(3) of the Act says: (3) In deciding whether or not to approve the carrying out of a project, the Minister may (but is not required to) take into account the provisions of any environmental planning instrument that would not (because of section 75R) apply to the project if approved. However, the regulations may preclude approval for the carrying out of a class of project (other than a critical infrastructure project) that such an instrument would otherwise prohibit. 85 Section 75R says: (3) Environmental planning instruments (other than State environmental planning policies) do not apply to or in respect of an approved project.

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86 Putting a contrary view, Mr Griffiths submitted that s 39(4) of the Land and Environment Court Act 1979 (the LEC Act) and its reference to the 'public interest' requires us to consider the DCP. Mr Maston submitted that no provision of Part 3A of the Act inhibits the Court, on appeal under s 75L, from having regard to any relevant standard. Mr Maston submitted that the DCP represents the will of the local community as council has reviewed the DCP on no less than three occasions. 87 First, we note that the definition in the Act of "environmental planning instrument" is in the following terms. " environmental planning instrument " means an environmental planning instrument (including a SEPP or LEP but not including a DCP) made, or taken to have been made, under Part 3 and in force. 88 The consequence of this is that the discretionary opportunity to consider an environmental planning instrument provided by s 75J(3) of the Act is not enlivened with respect to the DCP. As a consequence, we consider that there is no basis upon which we could have regard to the DCP within this statutory framework. 89 However, if we are correct in reaching this conclusion, this does not entirely remove any opportunity to consider the DCP. In Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195, Mason P said, at para 81: A consent authority may range widely in the search for material as to the public interest. 90 As a consequence, subject to what we discussed earlier about the basis upon which the DCP has been developed, the DCP might be capable of consideration on a broader "public interest" basis. 91 In this instance, it is relevant to note that McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at para 87, in his second dot point, said: A development control plan adopted after consultation with interested persons, including the affected community, will be given significantly more weight than one adopted with little or no community consultation. 92 In this context, evidence that we have concerning the genesis of the DCP is that provided by Mr Mowle as discussed earlier. For the reasons we earlier set out, it is clear from proper consideration of his evidence that we have no basis upon which we could establish the provenance or derivation of the numerical controls contained in the DCP. Absent such provenance or derivation, we are left with only the conclusion that what is colloquially described as "the streaker's defence" - it seemed like a good idea at the time - could be applied to these numerical controls in the DCP. This is not a proper basis upon which to found numerical controls that relate to structures of the type that are not commonly dealt with through such controls (unlike, for example, conventional building heights or floor-to-ceiling distances within built structures where there is a widely understood general numerical range for such controls). 93 As a consequence, on this second basis, we do not consider it is appropriate to pay particular regard to the numerical controls in the DCP and we propose to proceed to deal with an individual assessment of the impacts on specified properties having regard to topography, orientation of dwellings, distances to and numbers of visible turbines and the like. Issues 94 The issues that were raised by the parties in the proceedings fall within five categories. First, conveniently, it is appropriate to deal with those matters that were raised as issues by the objectors that are not properly matters capable of being considered by the court in an appeal such as this. Second, there are those matters that related to what data was required or how data should be collected. Third, there arose a number of issues that relate to construction of elements of the proposed wind farm comprising construction of elements that are not specifically of a wind farm nature such as road construction. Fourth, there are those issues that arise specifically from potential impacts of the location and nature of the structures that are idiosyncratically part of a wind farm. Finally, there are several framework issues that arise concerning the operation and structure of any consent that might be granted to the wind farm.

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110 Nothing has been demonstrated to us that would lead us to the opinion that there has been any change to this position since Preston CJ enunciated it. As a consequence, we decline to consider any issues relating to claims for compensation. General construction issues The Crown road 111 The proponent proposes that the alignments of two unmade Crown roads will be used for purposes associated with the substation that is to be located toward the north-eastern corner of the southern portion of the proposed wind farm. These are for construction access and for underground cabling. 112 The alignment of one of the unmade Crown roads is proposed to be used to construct an access road to bring structural components needed for the construction of the proposed wind farm elements in this sector to their proposed sites. This arises because an alternative access (using a second unmade Crown road for part of its path) is said by the proponent not to be feasible as two landholders who are opponents of the wind farm have not granted consent to cross their properties. There is also said to be an existing high voltage transmission tower that presents a problem using this Crown road (unless there were an easement over an objector property to avoid the tower). 113 No action has been initiated, pursuant to relevant provisions of either the Conveyancing Act 1919 or the Land and Environment Court Act 1979 to obtain the very modest easements over these objectors' properties that would be necessary to utilise the existing public road sections and shorter element of the second unmade Crown road. However, two factors render the possibility of easements irrelevant. These arise from our conclusions that: o there are no insuperable barriers to using the southern of these Crown road (as discussed below); and o if the proponent acquires the Johnson's landholding (rather than deleting turbine POM_01) - as these alternatives will arise from the individual property assessments discussed later, easements would not be required (as we understood from our drive along the northern of these Crown roads during the field inspections). 114 In addition, each of the Crown roads is proposed to be used to bring an underground electricity cable to the substation to feed electricity generated by the wind turbines into the state's main electricity grid - a transmission line of which, as earlier noted, passes across an associated property near the proposed substation.

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116 The longer (the southern) of the two unmade Crown roads has two issues raised by the Guardians concerning its development for the purposes of the wind farm. These are set out in more detail immediately below but relate to possible disturbance of contaminants near an abandoned sheep dip and the possible disturbance of Aboriginal cultural items. These issues arise from the discovery of scatters of aboriginal cultural material on portions of the Crown road and from the fact that, in close proximity to Gurrundah Creek, the Crown road passes within 20 m or so of a sheep-dipping site. 117 An additional matter was raised by Mr Phillip Price, a member of the Guardians, relating to platypus habitat in the vicinity of this Crown road. 118 After visiting the Ikin property (discussed when dealing later with individual property assessments), we traversed the paddocks to a point opposite on the upper slope of a steep gully above and on the opposite side of Gurrundah Creek to the sheep-dip site and the south-western section of the Crown road on the Phillip Price property. In this vicinity, the Crown road is unmade but its route follows a fence line in an east-west direction, turns 90 degrees south down a steep slope to Gurrundah Creek and then turns 90 degrees to the east along the creek and immediately to the south of a farm dam. Sheep-dip and possible contamination 119 The sheep dip site, on the basis of anecdotal evidence given to the proponent's contaminated sites consultant, Mr Hobbs, by Mr Phillip Price, operated between approximately 1950 and approximately 1980. According to this anecdotal evidence, in the earlier part of its operation, arsenic-based dipping compounds were used and, towards the end of its operation, these had been replaced with organophosphate or organochlorine pesticides. Mr Hobbs reported that there were several rusting drums at the site, labelled as containing the active constituent 'Diazinon' (an organophosphate). This is consistent with the anecdotal evidence.

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Data and methodology issues Noise 131 On 12 November 2009, the Court directed the Guardians' acoustic expert to provide a list of concerns and then confer with the proponent's and the Kings' acoustic experts. A joint report of acoustic experts was submitted as evidence. The Guardians retained Dr Tonin and the proponent retained Mr Turner. The concerns raised by the Guardians related to: - the Van den Berg modulation/effect; - noise impact at night; - should wind speed be referenced at hub height; - data analysis; - noise mitigation; - turbine options; and - peer review of consent approval. 132 The Van den Berg Effect is described by Preston CJ in Taralga, in para 229, as: … an additional noise modulation described as a thumping noise which occurs, in limited circumstances, as a consequence of a temperature inversion between the tip of the rotor when it is at its upmost extension and the tip of the rotor when it is at its most downward extension. 133 Dr Holmes and Mr Purton, meteorologists for the Guardians and the proponent respectively, authored of a joint report entitled 'Analysis of Meteorological Data for Gullen Range Wind Farm'. Based on this meteorological analysis, Dr Tonin and Mr Turner agreed that the Van den Berg modulation is unlikely to occur at any relevant location, or if it does, it would occur infrequently. We accept this uncontradicted expert evidence that the Van den Berg effect is unlikely to occur and it thus cannot be the basis for any modifications to the proposal. 134 With respect to noise levels at night, Dr Tonin expressed the opinion that the proponent should be required to undertake night-time assessments of background noise levels and a revised noise assessment for the final turbine model for night-time noise. He argued that the base limit between the hours of 2200 to 0700 should be 40dB(A) rather than 35dB(A). This noise level is based on the World Health Organisation (WHO) recommendations for internal noise level of 30dB(A) for bedrooms coupled with the assumed noise reduction through an open window of 10dB(A) for NSW conditions (the latter being based on published criteria for industrial noise and road traffic noise). 135 The actual WHO guidelines are 45dB(A) and this level was used by Marshall Day Acoustics (MDA) in the preparation of the noise impact assessment in the EA. 136 Mr Turner contended that neither the 2003 nor the 2009 South Australian guidelines require noise assessment to be separated into day and night periods. He was of the view that the baseline of 35dB(A) stated in those guidelines is more stringent than the WHO recommendations and therefore the need to go beyond the SA guidelines is not justified. 137 We do not consider that we should require the separation of the noise levels. We have so concluded for two reasons. First, we accept that the application of the 2003 SA guidelines has been and remains the proper assessment framework to apply in the assessment of this proposal as was set in the Director-General's requirements. Second, separately, we also accept Mr Turner's evidence that those guidelines are more stringent than the WHO recommendations and there is thus no need to go beyond the SA guidelines. 138 There was a difference of opinion as to how wind speeds should be referenced. Dr Tonin was of the opinion that they should be referenced at hub height according to the 2009 SA guidelines. Mr Turner contended that the referencing at 10 m above ground is in accordance with the 2003 SA guidelines and is also acceptable under the 2009 SA guidelines if acceptable wind shear models are used to calculate wind speed at hub height. However, both experts agreed that: Referencing at hub height represents best industry practice because it makes no assumption about the value of the surface roughness coefficient for the locality nor of the variation in shear coefficient at different times of day or night. 139 In light of this agreement and no suggestion by Mr Turner, as we understood his evidence, that acceptable wind shear models were not to be used, we consider it appropriate for the conditions to provide that any additional noise modelling or recalculations required when the final turbine selection is made are to be referenced at hub height. 140 With respect to data analysis, both acoustic experts agreed that the Minister's condition 2.15 be modified to require the proponent to undertake a revised noise assessment for the final turbine model conditions (including an assessment of the suitability of background noise level data to cover the range of wind speeds and directions generally expected at the wind farm site). This agreed position arose in response to the omission by MDA, in their preparation of the noise impact assessment in the EA, to follow the SA 2003 guidelines requiring wind speeds outside of the normal operating range of the turbines to be removed from the background data set. 141 In terms of noise mitigation, the experts agreed that the conditions of approval could be improved by the inclusion of a requirement that establishes a 'Noise Operating Strategy' that addresses any noise exceedences for the wind farm based on final turbine selection and layout. 142 They also recommended that condition 2.19 be improved by the inclusion of a requirement to confirm operation of the wind farm in accordance with any 'Noise Operating Strategy' developed in accordance with the revised condition 2.15 and a requirement to repeat the verification of the operational noise performance for any change in the 'Noise Operating Strategy'. In their joint statement they recommend the following wording: The proponent shall prepare a Noise Operating Strategy identifying specific methods of noise reduction based on the final turbine selection and layout for the various turbines which are predicted to result in noise levels exceeding the noise limits for the worst case wind directions at any receptor location. The Strategy shall include noise modelling verification demonstrating the noise reductions claimed can be achieved.

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152 In addition to the position that a development consent runs with the land and is not personal to the applicant who obtains it, equally a proper merit assessment of any proposal is not undertaken on a basis adopting subjective criteria reflecting individual likes or dislikes. 153 Although there has been a degree of debate and disagreement between the noise experts on some specific matters in these proceedings, they have related to the levels of (or appropriate method of calculating) empirically derived values from appropriate measurement based science. Resolution of those differences is discussed earlier. Standards, based on science, such as the European JE standard; the 2003 South Australian wind farm guidelines; and the 2009 South Australian wind farm guidelines can all be considered and whatever guideline or guidelines are adopted by consent authorities or regulators, are capable of empirical compliance modelling based on data obtained from scientifically verifiable testing. Similarly, compliance can be empirically tested and, if relevant conditions of consent are not satisfied, compliance can be enforced. 154 Inserting subjectivity consent requirements based on an individual's or a group of individuals' reaction to the noise from the wind farm, based on their opposition to the development, is entirely alien to the planning system. Whilst, in some areas such as streetscape impact, individual aesthetic considerations may arise and judgements made upon them, we are unaware of any authority to support the proposition that, where there is a rationally scientifically measurable empirical standard against which any impact can be measured and determined to be acceptable at a particular empirically determined level, that there should be some allowance made for a subjective response to the particular impact. Mr Griffiths was unable to cite any authority in support of such a proposition. 155 As a consequence, we have determined that, in assessing the acceptability of noise at the various receiver locations, we need consider the appropriateness of the (contested) noise-related conditions proposed by the Minister solely on the basis of technical evidence given to us by the expert witnesses and relevant data - whether measured by fieldwork or derived from accepted software modelling programs applied to the analysis of such data.

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Visual impact 156 Mr Wyatt prepared the 'Landscape and Visual Assessment' for the EA. In response to contentions raised by the Guardians and the Kings, Mr Wyatt prepared a 'Statement of Evidence - Supplementary Landscape and Visual Assessment Report'. In essence, the issues raised about his analyses related to the adequacy of the methodology and the number and adequacy of his photomontages, including night-time photomontages. 157 Apart from providing written reports, Mr Wyatt was present at the site view where we had the opportunity to observe the photomontages at various of the locations from which the original photographs were taken. This also provided the opportunity to discuss mitigation measures such as landscaping. Mr Wyatt gave oral evidence in Court. Photomontages in addition to those produced for the EA were presented in the field and in Court. 158 The main objections from the Guardians and the Kings related to the perceived subjectivity of the assessment and the ratings for the scale of effects. It is fair to say that there was strong disagreement from the Guardians where Mr Wyatt's assessment of "low adverse effect" was given. His scale of effects is based on a number of factors including distance from the wind farm, the number of people who would see a particular view and the landscape sensitivity. The latter refers to the degree of 'man-made' modification to the landscape. 159 In Mr Wyatt's Statement of Evidence he said: The overall visual impact of the wind farm from an indicative publicly accessible viewpoint has been assessed using the following scale: * Negligible - minute level of effect that is barely discernable over ordinary day to day effects. * Minor or low adverse effect - adverse effects that are noticeable but that will not cause any significant adverse effects. * Medium adverse effect - significant effects that may be able to be mitigated/remedied. * High or unacceptable adverse effect - extensive adverse effects that cannot be avoided, remedied or mitigated.

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164 As a consequence of this observation, we consider that, when we turn to assessments of impact on individual properties, we should also consider, on a contingent basis, what would be the visual impact if aviation hazard lighting were to be incorporated at some time in the future. We have done this as our conclusions on this issue relate to turbines that are proposed to be installed and any future requirement for such lighting will be one not sought by the proponent nor imposed by a consent authority under NSW law - thus this assessment is the only possible forum within which these possible impacts can be considered. We propose to do so on the assumption that, at most, lighting of this type would be required for the turbines of this proposed wind farm at a ratio of lights and intensity of illumination no greater than that inspected at the Cullerin Range wind farm. 165 After considering the contentions of the Guardians and the Kings and preparing and analysing additional photomontages, it was Mr Wyatt's position that there were no reasons why he would change his conclusion that the landscape is suitable for a wind farm. In his oral evidence, there was a strong reliance on the use of landscaping/tree planting to lessen the visual impact on potentially adversely effected dwellings. 166 The Minister's approval includes conditions of consent in relation to landscaping requirements for screening purposes. In summary, the proponent is to offer and pay for landscaping treatments to non-associated properties with existing dwellings or where a dwelling has been approved and those dwelling sites are within 3 km of any visible turbine. The utility of this is dealt with, as necessary, in the context of each individual property requiring assessment. The question of amendment to include existing subdivision allotments with existing dwelling sites specified in the subdivision approval (but no current dwelling approval) is discussed in our consideration of the landscaping condition. 167 The council contended that the most appropriate way of dealing with the visual (and noise) impact is to impose a 2km setback from any non-associated dwelling or approved house site on a lot created for residential purposes from which a turbine is visible. This arbitrary distance is contained in the DCP and has been rejected for the reasons earlier set out. Shadow flicker 168 Shadow flicker is a phenomenon that is caused when the sun is low in the sky in either the morning or the afternoon. The flicker is caused if the sun is observed directly through the rotating blades of a turbine. It is a phenomenon that, self-evidently, does not occur when clouds obscure the sun. Thus allowances must be made, when assessing shadow flicker impact, for the number of cloudy days there may be in any year at any given location likely to be subject to shadow flicker. 169 There are no specific guidelines in NSW as to how to assess shadow flicker generated by wind turbines. However, the relevant Victorian Planning Guidelines propose that no dwelling on a non-associated property should be subject to more than 30 hours of shadow flicker in any 12 month period. 170 A number of residences are subject to shadow flicker impacts to varying or lesser degrees if the Gullen Range wind farm is constructed as approved by the Minister. Possible shadow flicker impacts also arise with respect to locations where no dwelling is currently constructed but where a dwelling entitlement for the allotment exists. Shadow flicker impact is one matter to be considered in assessing the suite of potential impacts on the various locations needing to be considered in these proceedings. The reports attached to the proponent's EA included a "Gullen Range Wind Farm Landscape and Visual Assessment" prepared by ERM Australia (the ERM report). This report, by its Annex A, incorporated a shadow flicker assessment and Figures 11.3 and 11.1 are visual representations on air photos of the shadow flicker that would be generated from the turbines of the proposed wind farm. 171 The proponent engaged an independent expert, Dr Slack, to assess the extent and duration of shadow flicker arising from the proposed wind farm. According to his Statement of Evidence, Dr Slack "independently confirmed the duration of shadow flicker predicted" in the EA. Dr Slack also modelled the likely shadow flicker effects based on the worst-case positions of the turbines facing into or away from the sun. 172 The proponent provided Dr Slack with wind data. Dr Slack assessed cloud cover using cloud cover data provided by the Bureau of Meteorology from the Goulburn TAFE Meteorological station. Despite the distance from the meteorological station to the assessed sites, Dr Slack considered that cloud cover estimates would be similar. However, he did say, in his Statement of Evidence: .........., it is acknowledged that the application of a cloud cover of adjustment is subject to some uncertainty. However, it is the best available data, and the application of an average effect is considered to be a reasonable approximation. 173 The results were assessed against the Victorian Planning Guidelines that no dwelling on a non-associated property should be subject to more than 30 hours of shadow flicker in any 12-month period. Dr Slack assumed no shadow flicker beyond a distance of 1 km. He stated that South Australian guidelines set the cut-off distance at 500 m and in the UK the limit is 10 times the rotor diameter. In this case, that would equate to 927 m and thus he considered 1 km to be a reasonable cut-off distance. 174 In answer to questions raised by objectors about the impacts of shadow flicker on human health, Dr Slack stated that: The effects of light flicker on humans in relation to shadow flicker from wind turbines have been reviewed by various researchers in Europe. The researchers concluded that the only potential health effect was the possibility for triggering epilepsy. Between 1 and 2% of the population suffer from epilepsy, and of these about 5% have photosensitive epilepsy which may be triggered by light flicker. However, there is a consensus that the flicker frequencies that potentially trigger seizures lie above 3Hz. The frequency range for modern large wind turbines is generally less that 1.0Hz which is well below the problem level. It is therefore concluded that the risk of potential health effects of shadow flicker on human beings from modern wind farms is very low, and the major impact is annoyance. Both the Victorian Guidelines and the Best Practice Guide propose a limit of 30 hours per year as a limit to prevent undue annoyance. 175 In terms of mitigation of the effect, Dr Slack suggested that screening is effective as is the turning off of turbines at the times of the day that flicker is most likely to occur. 176 However, Dr Slack adjusted, downward, his calculated hours of shadow flicker per year at the potentially impacted locations by having regard to wind direction and, thus, turbine orientation. In his statement, Dr Slack identified the range of properties where he considered shadow flicker could arise and gave annual estimates (in hours of shadow flicker expected to be experienced) for each such location.

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194 In reaching this assessment, we have taken into account a number of observations made during the field inspection where we stopped to look at the outlook from the public domain from several of the locations identified by Mr Wyatt as public viewing points (being locations for which he prepared photomontages). To assist understanding of our reasoning on the broad topic of public domain impact, we record, in the following paragraphs, our response to these outlooks. Pomeroy Road viewpoint (VP3) 195 Between the Clark and Brooks properties in the Mummel area at the south-east of the southern section, we stopped on Pomeroy Road and viewed photomontage 03, a view to the west towards One Tree Hill and the Gurrundah sector with the nearest turbines, GUR_03 and GUR_07, being ~ 1.9 km away. 196 In the EA, Mr Wyatt describes the visual impact low (on p. 50 of the EA) and as moderate without screening and low with screening (on p. 82 of the EA). 197 In our assessment, the turbines will be visually prominent from the road at this location as the range it is relatively close. Screening would be unlikely to make any significant difference. However, the prominence of the turbines is unavoidable as they are located towards the top of the most visually dominant landscape feature, the Grabben Gullen Range. Walkoms Lane viewpoint (VP4) 198 On the way to the Johnson property (discussed later concerning specific property impacts), we stopped at Walkoms Lane and viewed photomontage 04 representing the view to the south-west across gently sloping land to the nearest proposed turbine, POM_01, some 2.5 km away in the Pomeroy group. Another photomontage from the same spot - to the north-west across a relatively flat area toward the southern end of the northern section of the proposed wind farm - showed turbines in the Bannister sector at about 2.5 km away screened by hills and remnant trees. In our assessment, the visual impact was relatively low in both directions. We note that this accords with Mr Wyatt's assessment from this viewpoint. Grabben Gullen viewpoint (VP11) 199 The photomontage was taken just to the north of the hotel on the eastern side of the road in the hamlet of Grabben Gullen. The view to the east towards the Bannister group of turbines shows about 20 turbines with the nearest of them, BAN_09, being at a distance of ~ 3 km. The turbines are obvious but at a distance where noise and shadow flicker are not issues. 200 The hamlet is quite small and the majority of the residential allotments are to the west of the viewpoint - thus further away from the turbines. In addition, it appeared to us that the majority of the dwellings in the hamlet appeared to be oriented away from direct viewing lines to the turbines. The question of orientation, however, is not as important as is the distance to the turbines and the resultant view as shown in the photomontages. 201 The photomontage from the vicinity of Grabben Gullen does not disclose any public domain dominance such as to warrant modification or refusal of the proposal. This photomontage is reproduced below to assist understanding of the conclusion following - the photomontage shows the existing view at the upper frame and the view with turbines inserted in the lower frame (rotated to give best possible image definition).

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202 Given the general orientation of the hamlet and the distance to the turbines, we consider the visual impact on the village of Grabben Gullen to be acceptable. Conclusion - visual impact on the public domain 203 There is no location in the public domain from which there will be a regular static view taken of the proposed windfarm (with the exception of those who might take such views from the public domain whilst in the village of Grabben Gullen). As a consequence, setting aside public domain viewing from that village (as we have earlier indicated this to be acceptable), we are satisfied that the overwhelming viewing of the windfarm, from the public domain, will be transitory and taken by those driving on the local road network. 204 The local road network is, essentially, an interconnecting network of feeder and collector roads none of which appeared to be a major thoroughfare in a road hierarchy sense. Viewing of the various elements of the wind farm is only of transitory nature (even if driving from one end of the wind farm to the other). Were we to accept that the view of the wind farm was highly significantly intrusive at any location for such a transitory viewer (a proposition that we do not accept), nonetheless this would still render the impact of such a view as low. 205 As a consequence, there is no basis of visual impact upon those viewing the proposed wind farm from the public domain that would warrant requiring modification to the proposal let alone refusing it outright. 206 We have also considered whether or not the conclusion that we have reached concerning public domain viewing would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines on the lighting assumptions earlier postulated. We have concluded that the transitory nature of such nigh-time viewing means there would be no visual impact of any significance from such lights. 207 Finally, we note, in passing, that there are no noise or shadow flicker impacts on the public domain that would warrant us refusing or modifying the proposal. Impacts on individual properties - introduction 208 We turn, now, to undertake an assessment of the impact of the proposed wind farm on individual landholdings or, where relevant, groups of landholdings. This assessment, as earlier indicated in outlining the potential impact of the wind farm, is done on a cumulative basis considering visual, noise and shadow flicker impacts as relevant. 209 As part of the reports that were in evidence (as attachments to the EA), the MDA report included air photos marked up with predictive modelling noise contours for two of the possible turbines that might be installed in the proposed wind farm. Compliance tables for a number of potentially sensitive receiver locations for each of these two turbines were also included in the report. A further table of such data was tendered for the Guardians with respect to a third possible turbine. 210 We have referenced the marked air photo for the non-compliant of the two turbines for which marked air photos were provided in the MDA report. The third possible turbine showed greater non-compliance but we do not have an air photo from which to extrapolate data about its impacts. The air photo we have used is reproduced below:

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214 Whilst we appreciate that there is to be a Noise Operating Strategy for the wind farm and the conditions of consent require that the wind farm be operated so that there are no exceedences of the permitted noise levels, the possibility of noise non-compliance is a matter, in our view, to be considered as part of the cumulative assessment of all potential impacts on existing dwellings or allotments with existing dwelling entitlements. 215 Where we have dealt with a group of landholdings, we have identified those by the general location and, within the assessment, identified the individual landholdings subject to consideration in that assessment. These are landholdings or groups of landholdings upon which there is an existing dwelling or an entitlement to such a dwelling. The question of landholdings that may have the potential to be subdivided under the various present Local Environmental Plans are dealt with, after this section of the decision, under a separate head of consideration. 216 Where we have reached the conclusion that all or part of a landholding should be subject to an acquisition regime, the structure of the condition to provide for that acquisition regime is that which is described, separately, after consideration of these landholdings. A schedule of properties where each is to be the subject of a condition structured as later described is appended to this decision. 217 Where we have concluded that a landholding is sufficiently adversely impacted to warrant us requiring acquisition by the proponent or, if the proponent so wished, deletion of the impacting turbines to ensure acceptability, the approach that we have adopted is that, if there is only one existing dwelling or dwelling entitlement on the particular landholding, the totality of the landholding should be acquired even if there is some theoretical opportunity for subdivision or there are multiple allotments. This is consistent, in our view, with the position that we have taken about subdivision potential (that is not having regard to any subdivision potential - for the reasons we have set out).

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219 If an unacceptable impact applies to a landholding where there is more than one dwelling or dwelling entitlement, we have approached that landholding on the basis of requiring that the discrete element of the landholding that is impacted be subject to the acquisition regime as proceeding on this basis would not leave a landholding without a dwelling or dwelling entitlement. 220 As we are dealing with these impacts in two proceedings, those brought by the Guardians and those brought by Mr and Mrs King, separate orders will be necessary to give effect to this decision. However, the merit assessment of the relevant elements of the Kings' landholdings sits, conveniently, within the framework that follows. 221 The assessment of the individual landholdings generally follows the sequence of the site inspections as organised by the Guardians. The descriptions are based on both the written statements of evidence and the evidence given on-site. The property numbers, as identified in the air photos, are shown in brackets. The Kings' property is the subject of separate proceedings and is discussed, separately, after consideration of the Guardians' properties. 222 In preparing their appeal, the Guardians used a template 'Statement concerning expected impacts of the Gullen Range Wind Farm, Project No. 07_0118'. Each member of the group completed the template form and, where the property owners considered it necessary, provided additional material to support their contentions otherwise set out on the form. Some members provided additional material and specific comments on each item. Other members submitted the form with little additional material. 223 Each statement was numbered and the house site given. The following information was contained in the statement: 1. Name 2. Street address of affected property 3. LOT Nos, DP Nos of affected property 4. Identification of house /house site 5. How many turbines visible (in whole or in part) from place habitually used on property 6. Distances to nearest cluster of turbines (on attached map) 7. Dwelling entitlement 8. Subdivision: (i) Approved (ii) Proposed (iii) Potential 9. Concerns: (i) Noise (day and night) (ii) Visual impact (day and night) (iii) Shadow flicker (iv) Fall in property value (v) Unsaleability of property (vi) Loss of subdivision potential (vii) Deterioration of quality of life 11. Relief sought: (i) Refusal of the project: We apply to have the project refused (ii) Removal of turbines: If the project is not refused, we apply to have turbines___ removed from the project. (iii) Monitoring regime and complaints resolution process: If the project is not refused, we apply for a rigorous monitoring regime, and a complaints process with integrity, both to be independent of the developer. (iv) Compensation for fall in property value/loss of subdivision potential: If the project is not refused, we apply for compensation equal to the loss of value to our property. (v) Acquisition rights: If the project is not refused, we apply for acquisition rights. 224 In addition to this information, each submission contained an aerial map showing the location of the dwelling and the nearest group of turbines. At the bottom of this map, the distances from the turbines are shown. Each submission contains a Title Search for each property and evidence to support dwelling entitlements or subdivision approval. 225 In summary, all members were concerned about visual impact; impacts on property values and unsaleability of their properties (including loss of value of retirement asset or income); and deterioration in their quality of life. Most were concerned about noise and about half with shadow flicker. All supported the outright refusal of the wind farm but also, in the event that this did not result from the proceedings, sought the alternative relief as outlined in item 11(ii) to (v) of the template with specific requests for the removal of the turbines that the individual members felt most affected their property. 226 The descriptions and observations in the sections that follow are based on oral evidence during the site view and consideration of the relevant written submission.

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229 Mrs Clark stated that they bought their 18 ha property some 6 years ago and have lived there for the past 4 years. The view of the Gullen Range was the main reason for their purchase. The living area and back deck of the house overlook the range having uninterrupted views across the valley. A line of turbines will be located on top of the range opposite. In reality, although the Clarks will be entitled to take advantage of the landscaping provision if they wished, because of the topography and orientation of the dwelling, the landscaping would have little or no ameliorative effect on the view of the turbines from this property. 230 Given the elevated position of the house and the extensive views of the Gullen Range, there will be a visual impact from the wind farm. However, the distance is also such that there will not be any impact of shadow flicker or noise. There is no likelihood of noise non-compliance for this dwelling. 231 Even if we were to have adopted the 2 km distance proposed by the DCP (a DCP that would not apply to this property, in any event, because of its location in a different local government area), there would be no basis for intervention on the unsubstantiated empirical standard contained in the DCP. 232 The Clarks will undoubtedly have an outlook, in future - if the proposal goes ahead - of a landscape with a number of industrial structures in it with these strung along a viewing line across their principal outlook. However, there is considerable distance to even the closest of the turbines and the property is certainly not dominated, topographically, by any group of turbines. 233 We conclude, with respect to the Clarks' property, that the distances of turbines from the dwelling are such that the visual impact, absent noise or shadow flicker impacts, would not provide a basis for the refusal of the project or the removal of any turbines. 234 We have also considered whether or not the conclusion that we reached with respect to this landholding would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that, at the distance that the turbines that impact on this property are proposed to be located, there would be no additional visual impact of any significance. 235 The Clarks' concerns relating to the value of this property are, for the reasons discussed elsewhere, not relevant matters for our consideration - even if they were to be well founded (a matter about which we make no assessment). The Greeshaws' property 236 The Greeshaws' property (G30) is on the western side of Pomeroy Road opposite the Clarks' property and just on a 2 km radius from the nearest turbine. It is on significantly less elevated land than the Clarks' property. The nearest turbines are GUR_07 and GUR_08. We did not visit this property but Mrs Greeshaw gave evidence at the site view and her concerns were essentially the same as Mrs Clark's concerns. 237 Mrs Greeshaw stated that she was looking to retire and her lifestyle would be ruined if the wind farm went ahead. She also voiced her opinion on whether or not the turbines would be able to meet the essential base power load for the area and that the development would benefit others rather than locals. 238 There is no shadow flicker impact on this property. There is no likelihood of noise non-compliance for this dwelling.

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239 Although a small number of turbines will be visible in an elevated perspective from this property, as a consequence of its lower elevation close to the foot of the valley, the outlook will not encompass as many of the turbines as would be the case of the Clarks' property. As we did not visit the property, we are unable to draw any conclusion as to whether or not the landscaping that will be available to this property's owners will have any significant benefit in shielding their view of any of the turbines. Whether or not the landscaping will provide any benefit is, however, not relevant in our opinion as we are satisfied that the lesser number of turbines that will be visible from this property (although they will be elevated) is not a factor of significance for the same reasons as outlined for the Clarks' property. 240 In our opinion, there are no particular circumstances of this property that would not provide a basis for the refusal of the project or the removal of any turbines. 241 We have also considered whether or not the conclusion that we reached with respect to this landholding would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that, at the distance that the turbines that impact on this property are proposed to be located as well as the limited number of turbines visible from it, there would be no additional visual impact of any significance. The Brooks' properties 242 The Brooks own two lots on the eastern side of Pomeroy Road. The house in which they live is identified as G43 and is situated on the relatively flat portion of the 20 ha allotment near the road. They have lived there for 20 years and purchased the property for the view and the serenity. Even though large trees screen the house, Mrs Brooks stated that she and her husband spend a considerable portion of their time outside on various parts of their properties. The residence is about 300 m inside a 2 km radius from the nearest turbine and the nearest turbines are GUR_01, GUR_02, GUR_03 and GUR_07. 243 The Brooks also own the adjoining allotment to the east. It is about 18 ha in area and has a timber 'chalet' (erected by the previous owners high on the slope of the valley) with its primary orientation toward the ridgeline of the Gullen Range to the north-west and west. This timber chalet is identified as G44 on the air photo. There is an existing development consent for a house to be constructed up-slope of the chalet. 244 The Brooks estimate they will see 31 of the turbines in the Pomeroy and Gurrundah sections. These turbines will spread in a line along approximately 4 km of the ridgeline across the valley with their bases being modestly (but not significantly) higher, in some instances, than the chalet. The Brooks contend that the size of the turbines is such that they will dominate even the highest elements of the range and that this is an unacceptable impact. Should the turbines be lit, they are of the opinion that the night aspect will also be ruined. 245 In their written submission, the Brooks articulated their concerns about noise: We are generally concerned about noise, whether it breaches the SA Guidelines or not, since it will be both audible and unavoidable. But we are particularly concerned about the van den Berg Effect, and infrasound,…The van den Berg Effect is probable as temperature inversions are common on the Southern Tablelands. This means noise at night, with the possibility of sleepless nights…

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248 However, for the same reason as discussed above for the Clarks, the visual impact on the chalet or approved dwelling does not warrant removal of any turbines or refusal of the proposed windfarm. 249 Although we did not visit the house in which the Brooks reside, as noted above, large trees screen this house from any view of the turbines. The Brooks' dwelling is in a position analogous to that of the Greeshaws' dwelling but with the advantage of existing vegetation screening. There is no shadow flicker impact on this property. There is no likelihood of noise non-compliance for this dwelling. For the same reason as with the Greeshaws' dwelling, proximity of the dwelling is no basis for intervention. 250 Although Mrs Brooks stated that she and her husband are regularly outdoors on various parts of their two properties and will thus see the turbines, their viewing of the turbines will simply be the same as that which would occur from either the chalet (if they are working outdoors on that property) or from their own dwelling, if it were not screened by large trees, whilst they were working on their home allotment. In addition, whilst working outdoors, they will have the added distraction of whatever activity upon which they are engaged. For this reason, the outdoor viewing of the wind farm from either Brooks' allotments (or, indeed, any others where the view of the wind farm from the dwelling is acceptable) provides no basis for modification or refusal of the proposal. 251 As a consequence, there is no basis from any assessment perspective associated with either of the Brooks' properties upon which the removal of any turbine could be ordered let alone refusal of the wind farm proposal in its entirety. 252 We have also considered whether or not the conclusion that we reached with respect to either of the Brooks' allotments would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that, at the distance that the turbines that impact on these allotments are proposed to be located, there would be no additional visual impact of any significance. 253 The Brooks' concerns relating to the value of these properties are, for the reasons discussed elsewhere, not relevant matters for our consideration - even if they were to be well founded (a matter about which we make no assessment). Other 'Guardian' properties in the Mummel area 254 Seven other landholders from the Guardian group in the Mummel area (some off Pomeroy Road) prepared written submissions but did not present oral evidence. Due to time constraints during the site inspection, the Guardians did not press visits to these properties. As a consequence, the assessment of each of these properties is based on our impressions from travelling along Pomeroy Road in the vicinity of these properties; consideration of the air photo marking the locations of these properties and of the proposed turbines; consideration of the relevant elements of the topographic map; and consideration of any submissions made by the relevant landholders. 255 To the east of the Clarks on the north-eastern side of Pomeroy Road is a 20 ha property belonging to Bridge (et al)(G22) which is outside a 2 km radius from the nearest turbine. To the east of the Greeshaws on the south-western side of Pomeroy Road is the Cox property (G28). This is just inside a 2 km radius from the nearest turbine. 256 The Bridge property is affected in a fashion that is broadly analogous to that of the Clarks although, because of the topography may be marginally less affected in viewing to the north-west. If so, the ameliorative difference will be sufficiently minor not to be significant. There is no shadow flicker impact on this property. There is no likelihood of noise non-compliance for this dwelling. However, for the same reasons that the impact on the Clark property does not warrant any adverse conclusion about the proposed wind farm, the Bridge property must be the subject to the same conclusion. 257 It is not immediately obvious whether or not landscaping would have any ameliorative effect on this property although, because of the topography, some modest shielding to the north-west may be possible (however, this possibility is not a matter we have taken into account in reaching our conclusion concerning the property). 258 With respect to the Cox property, its position is, effectively, identical to that of the Greeshaws and the same conclusion arises with respect to this property for the same reasons as apply to the Greeshaws' property. 259 As a consequence, for the reasons set out, there are no particular circumstances for either of these properties that would lead us to ordering any modification of the project or the ordering of acquisition of either property. 260 We have also considered whether or not the conclusion that we reached with respect to these landholdings would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that, at the distance that the turbines that impact on these properties are proposed to be located, there would be no additional visual impact of any significance.

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261 To the west of the Brooks property is the Aboutaka property (G33). The nearest turbine is GUR_01 at about 1.3 km. From the location of the dwelling on this property as shown on the topographic map and on the landholding map provided by Epuron, this property is divided by the road with the present dwelling located to the east of the road. 262 From the topographic map, the dwelling is located on relatively flat land but would have views to the Gullen Range. The views to the range and the turbines to be erected on it, to the south-west, would comprise virtually all (if not all) of the Gurrundah sector turbines along the eastern of the two rows running north-south in this vicinity. However, because of the location of the house on the flat land at the bottom of the valley, it is unlikely that anything other than the upper portion of the rotors, if anything at all, of the western row of turbines to the south-west would be able to be viewed from this house (although there might be some views from the higher portions of this property that are generally to the east of the house and up to some 40 m higher than the house). 263 Although the Aboutaka's dwelling is closer to a number of turbines than the lower of the two dwellings owned by the Brooks, the position concerning this property is sufficiently similar to the issues raised by Mr and Mrs Brooks concerning their principal dwelling and their activities on their property that the same approach should be applied here as was done for the Brooks. 264 Although we are not aware of what vegetation screening might be available for the dwelling on this property at the present time, this property will also have the advantage of the landscaping condition. We do not consider that there would be any likelihood of shadow flicker impacts. There is no likelihood of noise non-compliance for this dwelling. We are of the view that the same conclusion should be applied as was applied for the Brooks property and that, as a consequence, the impacts on this property do not warrant any alteration to the proposal let alone refusal of it. 265 We have also considered whether or not the conclusion that we reached with respect to this landholding would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that, at the distance that the turbines that impact on this property are proposed to be located, there would be no additional visual impact of any significance. 266 Further to the north-west is an area of smaller landholdings. Two of the Guardians' members, Scott (G32) and Madden have properties in this area and both are close to or within a 1 km radius from GUR_01. These two properties are located in Upper Lachlan Shire Council area. 267 From the topographic map, the Scott property slopes from west to east with a creek frontage at its eastern boundary. The dwelling on the property is located toward the western end. This dwelling is just outside a 1 km radius from GUR_01. The view of this turbine from the Scott property will be partially (if not completely) shielded by the rising ground to the south-west of the dwelling. Whilst it is also probable that this property will have views of a number of other turbines, in whole or in part, in the eastern row of Gurrundah sector turbines that are virtually to the south, those views will be at increasing distances with shielding, at least to some extent, by the rising ground. 268 The dwelling on the Scott property will also have a view, at approximately 4 km distance, of a limited number of turbines in the northern group in the Pomeroy sector. The comparatively limited number of turbines likely to be viewed from this property together with the topographic orientation of the property sloping down to the east toward its creek frontage means that we do not consider that there would be any visual impact on this property that would warrant an alteration of the proposal let alone its refusal. 269 The closest turbine is GUR_01 at approximately 1 km to the south-west. There is no likelihood of noise non-compliance for this property. There would be no shadow flicker impact on this property. 270 We have also considered whether or not the conclusion that we reached with respect to this landholding would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that, at the distance that the turbines that impact on this property are proposed to be located, there would be no additional visual impact of any significance. 271 The Madden property is in a position that is more sheltered than the Scott property from viewing of turbines to the south - with the closest turbine being marginally less than 1 km away (being turbine GUR_01). A portion, at least, of this turbine will be visible from this property. It is likely that a number of the turbines in the south-eastern portion of the Pomeroy sector will also be visible as well the north-eastern group of turbines in this sector. The closest turbine in the first of these groups, POM_23 will be a little over 1.5 km away whilst the closest of those in the north-eastern group, POM_07, will be some 4 km distant. 272 Because of the topography, we are satisfied that visual impacts will be acceptable for this property. The property slopes to the north toward its creek frontage and, because of the intervening topography to its west together with the distance from the closest turbine generally to the west being POM_23 at a little over 1.5 km, this property is not impacted by shadow flicker. Because of the topography and orientation of this property, there is no likelihood of noise non-compliance for this property. We are satisfied that there is no impact on this property that would warrant alteration to the proposal let alone its refusal. 273 We have also considered whether or not the conclusion that we reached with respect to this landholding would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that, at the distance that the turbines that impact on this property are proposed to be located, there would be no additional visual impact of any significance. 274 The Jones (G23) and Dallas (G14) properties are both to the south-east of the Bridge property and are further from the closest turbines in the Gurrundah sector than that property - each dwelling being over 2.4 km from the nearest turbine (GUR_16). Because of the topography, these properties will not have significant (if any at all) views of turbines in the Pomeroy sector. They will experience no noise or shadow flicker impacts. 275 As a consequence, neither of these properties warrants any change to the proposal let alone its refusal. 276 We have also considered whether or not the conclusion that we reached with respect to these landholdings would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that, at the distance that the turbines that impact on these properties are proposed to be located, there would be no additional visual impact of any significance.

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283 Unlike any of the other locations where we assess if there is justification for either modification of the proposed development by the deletion of one or more turbines or the alternative of acquisition of a property to eliminate the necessity for the removal of those turbines, no such alternatives exist for elimination of the substation as this substation is the sole such facility for the proposal. The substation makes possible the feeding of the power generated by the wind farm into the State electricity grid. As a consequence, modification to address impacts on the Johnson's property is only possible with respect to the north-east Pomeroy sector turbines but is not possible with respect to the substation. 284 In oral evidence, the acoustic experts agreed that the noise from the substation, although discernable, would be within acceptable limits for these dwellings. 285 The substation is to be a significantly sized industrial compound. The substation is planned to be screened by landscaping. However, direct visual screening of this substantial structure could not be achieved except after a considerable time lapse for landscaping establishment after planting. Night lighting will be limited and not intrusive after landscaping is established but, even if downwardly focussed (as we understand is proposed) will be visible from the old cottage until the compound's landscaping is established. 286 This property will have the benefit of the landscaping condition, for each of the dwellings upon it. However, taking advantage of the landscaping condition, even assuming that such landscaping could successfully shield, over time, the turbines in the north-eastern Pomeroy group, would require the obliteration of much of the outlook from the open space in the curtilage of the old cottage to the south and south-east of it as well as views from within this dwelling. As the land in this vicinity falls away, giving the old cottage its present pleasant rural outlook, landscaping would necessarily remove this. The flat area in the curtilage of this cottage (away from the road and on the southern side) is the area where the Johnsons propose, as part of their renovations, to establish the principal private open space living areas for the cottage. 287 The nearest turbine, POM_01, is well less than a kilometre from the old cottage and will be significantly visible. We have also concluded that the visual impact of turbine POM_01 would be exacerbated, to a minor extent only, if aviation hazard warning lighting were to be required in the future.

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297 Although some parts of these (and possibly other) turbines, at the least, will be able to be viewed from various locations on this property, when we consider the combination of the topographic and vegetation shielding, visual impact, in the absence of shadow flicker and with only a minor risk of noise impacts, does not warrant any modification of the proposal let alone its refusal. 298 We have also considered whether or not the conclusion that we reached with respect to this landholding would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that, at the distance that the turbines that impact on this property are proposed to be located, there would be no additional visual impact of any significance. 299 Mr Benjamin's concerns relating to the value of his property are, for the reasons discussed elsewhere, not relevant matters for our consideration - even if they were to be well founded (a matter about which we make no assessment). Ikin property 300 To the south of the Johnson property is that belonging to the Ikins (PW7). They run a cattle stud supplying the cattle industry with seed stock and are concerned about the disturbance from flicker and noise that the turbines may have on their calving cows and thus their business. In their submission, the Ikins state that they have spent considerable time, money and effort in improving and protecting the natural landscape and that they have a succession plan in place for their children. 301 The house and nearby sheds are well screened by planted and remnant vegetation. However, POM_01, POM_02, POM_03 and POM_08 are within 1 km of the dwelling as is the substation. A further 5 turbines are 1.0 - 1.5 km and another 7 in the 1.5 - 2.0 km range (these are also all in the Pomeroy group). The substation is about 800 m from the dwelling but will largely be topographically screened and additional landscaping will significantly reduce the visual impact. 302 Topography and vegetation are likely to screen most turbines proposed to the north and north-east. It is possible that POM_01 will be visible from the dwelling area (including the shed to the west of the house). If POM_01 is removed rather than the proponent acquiring the Johnsons' landholding, any visual impact from POM_01 on the Ikin landholding would also be removed. 303 Dr Slack calculates, after his various adjustments, that the Ikin dwelling will experience 10 hours of shadow flicker per annum. Taking a precautionary position concerning Dr Slack's calculations, there is likely to be an appreciable shadow flicker impact on this dwelling absent other mitigating factors. Because of the topographic and vegetative screening of the turbines to the east, shadow flicker impact on the dwelling may be lessened but it is not, in our assessment from the site inspection, likely to be eliminated entirely. 304 There may be some extremely limited noise transmission from the substation - although we consider that to be unlikely because of the modest topographic screening between the substation and the dwelling. There is the potential for adverse noise impact on this dwelling at wind speeds of 6, 7 and 8 m/s for the V90 modelled turbine but there is no modelled non-compliance for the other two turbines. 305 There will also be filtered views, however, of a number of turbines to the south in the central Pomeroy group, POM_08 through to POM_15, through the existing landscaping in the vicinity of the house and the paddock vegetation on this property.

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Aggregated assessment of impacts on the north-eastern properties of the southern sector 326 The various assessments above have dealt with the impacts, if any, on the five landholdings requiring consideration that are north or north-west of the southern section of the proposed wind farm. With respect to one of them, the Johnson property, intervention by acquisition or removal of one turbine is required. 327 However, we also turn, as we did with respect to the Mummel area properties, to consider the question of whether or not there is some aggregation of impacts in this area that would warrant any broader alternative conclusion more onerous on the proponent than the conclusions we have reached relating to the individual properties. We do not consider that there is. 328 None of the possible impacts on the Ikin property when added to those on all of the three more tangentially impacted properties, when aggregated with the impact to the Johnson property, warrants any additional modification to the proposal let alone refusal of it. Aviation hazard lighting, if required, would not alter our conclusion on this. 329 If the outcome, as a consequence of our conclusion relating to the Johnson property, is the resultant removal of POM_01 rather than acquisition of the Johnson property, this will provide some benefits, ranging from minor to marginal, in our view, for the outlook of the other three properties in this area (the benefit to the Ikins having been noted earlier) but is not a necessary improvement in those outlooks. Formby & Brown 330 Mr Formby and Ms Brown have a landholding totalling 164.2 ha. This landholding is west of the southern section of the Pomeroy sector of the proposed wind farm. It is, on their written evidence, subdivided into two allotments each of which has a dwelling entitlement. The closest turbines to these dwelling sites will be in the Pomeroy sector. For the first of their dwelling sites, the closest turbine will be POM_12 at approximately 3.7 km and generally to the east. From the topographical map, it is likely that three turbines will be significantly visible from this house site whilst minor elements of some other turbines in the more easterly rows of the central and southern sections of the Pomeroy sector may also be visible.

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The Christie property 335 The Christie property covers an area of some 2,446 ha on the western side of the southern group of turbines from POM_19 to GUR_15. 336 There are three existing dwellings on the property identified as PW12 in the north-western section of the property and G34 and G35 in the southern section of the property. PW12 is some 3.5 km away from the nearest turbines (POM_21 to POM_23). G35 is just inside a 2 km radius and G34 is just outside that radius. The nearest turbines to these properties are GUR_13 to GUR_15. Mr Christie's main concerns relate to the impact on an approved subdivision. 337 Mr Christie has approval for the first of what he anticipates to be a three-stage subdivision of his landholding. This first, approved stage divides his landholding into 10 lifestyle rural allotments each with a dwelling entitlement and two larger residual allotments. The proposed subsequent subdivision stages are proposed to be located primarily (but according to a concept plan in evidence, perhaps not excluding some elements of his present subdivision - the detail not, in our opinion being material) over the residual allotments. The two large residual allotments are in the north of his landholding. Mr Christie's property is generally undulating, open pasture and comparatively lightly timbered but has, as the topographic map discloses, steeper and more gullied sections on the two residual, northern allotments. 338 We inspected Mr Christie's property, either by going to the nominated house site or by viewing as we drove past along its Gurrundah Road frontage. We inspected several of the sites that were on the plans approved by the council. We did not access the two large residual allotments. 339 There is the potential for adverse noise impacts on the presently nominated dwelling sites on Lots 5 and 7 with the noise at these locations possibly being between 37 to 39 dB(A). There would be no shadow flicker impact on the presently nominated house site on Lot 5 but the presently nominated house site on Lot 7 could expect up to 15 hours shadow flicker per annum (adjusted downward to this number by 50% on the basis earlier discussed). However, the down slope portions of each for these allotments, closer to the road would not be subject to adverse noise or shadow flicker impacts. 340 There would be no other allotments in Mr Christie's present holding configuration that would experience adverse noise or shadow flicker at any identified house or house site and such affectation by these factors on his residual allotments would not preclude the selection of an un-impacted house site on either of them. 341 On the plan of the subdivision, proposed dwelling sites are identified on the various allotments. However, it was Mr Christie's farm manager's on-site evidence that these building envelopes were not fixed but merely had to be shown as demonstrating that a suitable building site was available on the allotment. It was also his evidence that he understood that, subject to demonstrating appropriate bushfire protection and availability of a sufficient and appropriate area for the disposal of effluent, any other compliant location of a dwelling site within the allotment would be likely to be approved, in a development application, as an alternative to the nominated dwelling site. Mr Christie's statement indicates that the house sites "were selected to maximise the north easterly viewshed which is a feature of most of the propose lots." Mr Christie's statement makes no mention of any particular planning constraints on house sites and none, other than those noted by Mr Christie's farm manager, would, from our observation, appear to arise. Certainly, none arise from the terms of the council's conditions of consent to Mr Christie's development application, DA 21/07. 342 The presently nominated location of these dwelling sites is on the more elevated north-eastern portions of the allotments. From these dwelling sites the southern turbines in the Gurrundah group would dominate the view to the north from the dwelling site on Lot 5 and to the east and north from the dwelling site on Lot 7. 343 Whilst there might be some minor constraints in finding alternative house sites for each of these allotments, such as drainage lines to farm dams, we are of the view that alternative approvable house site locations can be found on Lots 5 and 7 that are closer to the closer to Gurrundah Road and not subject to adverse noise or shadow flicker impacts. 344 A combination of design of dwellings taking advantage of the topography and with suitable orientation and landscaping, would mitigate the visual impact of the turbines on approvable house site locations on Lots 5 and 7 and on any other presently approved dwelling sites, where this might be needed, to an acceptable level. We note, in this context, that all the other designated dwelling sites within Mr Christie's subdivision are significantly further from the proposed turbines (although those south of Gurrundah Road may need to have their locations reconsidered) and none will have an unacceptable visual impact. 345 As a consequence of our examination the shadow flicker and noise contours for these allotments, we do not consider that there is any combination of potential visual, noise, or shadow flicker impacts that would warrant a requirement to incorporate any of these allotments into the acquisition schedule. However, given our decision, discussed later, to include existing subdivision allotments with existing dwelling sites specified in the subdivision approval (but no current dwelling approval) in the landscaping conditions, as these dwelling sites will need to be relocated as a consequence of this decision if the wind farm proceeds, the relocated dwelling sites are still to have the benefit of the landscaping conditions. The amended conditions are so to specify. 346 The concerns held by Mr Christie relating to the value of his landholding are, for the reasons discussed elsewhere, not relevant matters for our consideration - even if they were to be well founded (a matter about which we make no assessment). 347 We are also considered whether or not the conclusion that we reached with respect to any allotment within this landholding would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that, at the distance that the turbines that impact on this property are proposed to be located, there would be no additional visual impact of any significance. 348 Given these conclusions concerning allotments within Mr Christie's subdivision, despite the concession made by the proponent at paragraph 49 of Mr Pickles' written submissions that acquisition of Lot 5 in the subdivision is warranted, we are unable to accede to this view. Although we understood that there might be some preparedness by the proponent to acquire Lot 5 as it might facilitate access arrangements to the southern turbines in this sector, there is no basis founded on our assessment that would require inclusion of this allotment in the acquisition schedule. 349 However, if in light of the conclusions we have reached in this decision, Mr Christie and the proponent wished to have Mr Christie's Lot 5 incorporated, by consent, in the acquisition schedule (without any turbines being identified as impacting turbines), we see no reason why this could not be done at the time of finalisation of the conditions of consent pursuant to the directions given at the conclusion of this decision. Cumulative impact on the southern sector 350 With respect to the totality of impacts on individual properties in the southern sector, we have also considered whether these impacts, considered cumulatively over the totality of these properties (rather than on a property by property basis) should warrant us drawing any differing conclusion - either with respect to the overall project or with respect to any individual turbines. We have concluded that the totality of these impacts leads to the conclusion that nothing concerning this sector, collectively, warrants alteration of the project let alone its refusal.

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Northern section - south-eastern properties Picker-Wales 351 This is a 6 ha property (B8) with six turbines within 1.5 km and another 4 within 1.5 and 2 km. The southern section of the Banister group would be visually prominent on the range from the north-west to the south-west of the property. Apart from the visual impact, Ms Picker is concerned about the noise and health impacts on her children and her husband. The family spends a great deal of time outside working with and riding their horses. She is also concerned about the impact that shadow-flicker may have on the horses and the potential safety consequences for anyone riding. 352 Essentially this property is a lifestyle landholding rather than a working farm. The activity areas, including the horse yards that are the principal focus for the family's activities are between the house and the turbine row along the hilltops to their west. Turbines BAN_25 and BAN_26 will be visually prominent from the road frontage paddocks and the horse yards to the west of the dwelling whilst BAN_22 will also be somewhat prominent to the north-west. 353 Although we do not consider that there will be a significant impact on the living areas of the house (as their orientation appears to be away from the proposed wind farm), the nature of the family's activities and the comparatively small size of the landholding causes us to take a more cautious approach to this landholding than to other more broadacre agricultural landholdings. 354 Mr Wyatt prepared a supplementary photomontage taken from the driveway near the horse yards with the view to the west. He notes that the house has some landscaping that will screen some views and that the courtyard area for the dwelling are oriented to the north-east away from the wind farm. However, he states that the visual impact is high from the horse yards and driveway but that screening would reduce the impact to low. We note from the photomontage that there are scattered paddock trees to about 14 m high as well as an established row of Cypress trees between the viewpoint and the turbines. There are also relatively recent tree plantings along fence lines. Whilst these may provide some future screening from less elevated areas of the property, they are unlikely to make any significant difference to the visual impact of the turbines from the main area of family activity. 355 We consider that Mr Wyatt's opinion concerning landscape screening is optimistic given that the existing vegetation, some elements of which are substantial, would presently only provide screening from limited and less intensely used elements of the property. Whilst it might be possible to plant a row of fast growing trees (such as Leighton Greens) to provide a hedge to the horse yards, even planting comparatively advanced specimens would still leave a significant period of time before such plantings would provide adequate screening. Even if this were to occur and were to be regarded as an acceptable long-term resolution to the high visual impact on these intensely used areas, it does not alter the unsatisfactory nature of the immediate visual impact nor the impacts on the other paddocks outside the yards that are used for family activities with their horses. 356 On a conservative view of Dr Slack's calculations, it is likely that there would be some minor degree of shadow flicker impact on this property (including at the horse yards). There is no likelihood of noise non-compliance for this dwelling. 357 As a consequence of the visual impact (reinforced to but a minor extent by shadow flicker impact), we have concluded that the proponent should acquire this property or remove turbines BAN_22, BAN_25 and BAN_26. 358 We have concluded that the unacceptability of the impact on this property would be exacerbated, to a minor extent only, if aviation hazard warning lighting were to be required in the future. Evans 359 The Evans dwelling (B19) is some 100 m or so to the east of the Picker-Wales dwelling. We did not visit this property but heard oral evidence from Mr Evans who stated he was concerned with noise impacts and the re-sale value of his property. He questioned whether the property would be able to be sold if the turbines are built. The outlook would be similar to that of the Picker-Wales except that, according to the written submission, their main enjoyment of the location of their house is their view to the west. Mr and Mrs Evans state that there is no screening on that side of the house. 360 The Evans property is in a somewhat different position, as best we are able to understand, when compared to that of the Picker-Wales property. Although the geographic difference is comparatively small, with the Evans' house being only some 100 m further removed from the turbines than the Picker-Wales house, the nature of the property appears to be significantly different - in that the Evans property appears to be a conventional farming enterprise rather than an equestrian-oriented lifestyle property as is the Picker-Wales property.

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361 There is no likelihood of noise non-compliance for this dwelling. On a conservative view of Dr Slack's calculations, it is likely that there would be some minor degree of shadow flicker impact on this property in its road frontage paddocks but not at the dwelling. 362 We accept that there is, as noted above, no screening between the Evans' house and the proposed wind farm. The Evans' house falls under the landscaping entitlement regime and the house itself would be capable, over time, of being screened from the turbines. However, this would eliminate the Evans' enjoyment of their view to the west from their house. 363 The property activities outside the Evans' house are matters about which we have no evidence and we are certainly not able to conclude that there is an intensive family-oriented land use to the west of the Evans house of the nature discussed concerning the Picker-Wales property. On the assumption that the Evans' property is a conventional agricultural one, we are not prepared to conclude that there will be a significant impact on persons undertaking management activities around the property as a consequence of the visible turbines. 364 We also note with respect to the Evans' property that the perspective that they have of the turbines is a linear one - that is the turbines able to be viewed from their property are ones that run, effectively, in a perpendicular line across their line of sight. There is, certainly, no sense of the surrounding of this property by turbines - as was the position dealt with, for example, by Preston CJ concerning two properties, Cloverlee and the Ross property, discussed in Taralga. 365 Mr Evan's concerns relating to the value of his property are, for the reasons discussed elsewhere, not relevant matters for our consideration - even if they were to be well founded (a matter about which we make no assessment). 366 If the Picker-Wales property is not acquired by the proponent, the consequent removal of three turbines will provide a significant improvement in the visual outlook of the Evans property. However, for the differences we have set out, we do not think that, on balance, incorporation of the Evans property in the acquisition regime is appropriate as it is not a special case like that of the Picker-Wales property. 367 We have concluded that the impacts on this property would be exacerbated, to a minor extent only, if aviation hazard warning lighting were to be required in the future but not sufficiently to disturb our conclusion immediately above. B33 368 This dwelling is one where we have a photomontage prepared by Mr Wyatt (reproduced below). It is located on a small landholding and would have three turbines, BAN_20, BAN_21 and BAN_22 above and in close proximity to the dwelling. BAN_20 would be approximately 600 m from the dwelling, BAN_21 some 500 m from the dwelling and BAN_22 at approximately 800 m from the dwelling.

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369 Other turbines at the southern end of the Bannister sector, BAN_23, BAN_24, BAN_25 and BAN_ 26 would be between a kilometre and approximately 1.4 km from this dwelling and are likely to be highly visible (whether in part or in whole) from this dwelling. 370 This dwelling would be significantly adversely impacted by the proposal. There would be adverse noise impacts on this dwelling at wind speeds of 7 to 10 m/s for the V90 modelled turbine but there is no modelled non-compliance for the other two turbines. The present dwelling has a degree of mature vegetation screening around it. However, on Dr Slack's calculations, the curtilage of the dwelling could expect up to 58 hours shadow flicker per annum (almost double the acceptable limit). 371 The owner of B33 is not a member of the Guardians. We did not visit this dwelling. We were informed that the resident of this dwelling is elderly and did not wish to be part of the proceedings. However, we have an obligation to assess and deal with the possible impacts of the wind farm not merely on the basis of those who have chosen to participate in the proceedings but also on the basis of addressing, as necessary, all relevant planning impacts as part of the broad public interest consideration. 372 As earlier noted, in Terrace Tower, Mason P observed that information on the public interest might come from a range of sources. In this case, it is the proponent's own documents (being the topographic maps and the like) that raise the question of the impact on this property. Whilst it may well be that the owner of this property does not wish to take part in the acquisition regime that will arise from this decision, that is a choice that should be made open for his consideration given the extent of the adverse visual, noise and shadow flicker impacts that will arise for this property - as those impacts are substantial and unacceptable. As a consequence, this property will be included in the acquisition schedule with BAN_20, BAN_21 and BAN_22 as the unacceptable turbines. 373 We have also concluded that the unacceptability of the impact on this property would be exacerbated, to a minor extent only, if aviation hazard warning lighting were to be required in the future.

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Aggregated assessment of impacts on the northern section - south-eastern properties 374 We also turn, as we have done with other groups of properties, to consider the question of whether or not there is some aggregation of impacts in this area that would warrant any broader alternative conclusion more onerous on the proponent than the conclusions we have reached relating to the individual properties. We do not consider that there is as we have included two of the three properties in the acquisition schedule. Northern section - central-eastern properties Humphrey & Jennifer Price-Jones 375 Humphrey and Jennifer Price-Jones own 246 ha and their house's site, identified as B12, is on the eastern side of the range. They contend that the EA is flawed and misleading and that the proximity of 12 turbines within 2km of the house will have unacceptable visual, noise, financial and health impacts. There is sub-division potential for their property under the current applicable LEP and, in their view, there is sub-division potential under the new draft LEP (although this may be more limited). In their written submission they state that turbines would be located on 3 of their property boundaries and 61 of the proposed 84 turbines would be visible to some extent, particularly those in the Kialla and northern Banister group. Mrs Price-Jones gave additional evidence in court in support of their concerns. 376 Mr Wyatt prepared a supplementary photomontage (viewpoint 4c) from a site within the Price-Jones garden. In the comments accompanying the photomontage in his statement of evidence, Mr Wyatt said: There are many locations along this road [Glenaber Road - the access road to the house] from which the wind farm will be visible, however, this vantage point was taken within the garden. This house has a well-established garden and a wetland/lake in the western area of the garden in which seating locations (such as the gazebo..) have been developed which have views to the wind farm. The nearest wind turbines are approximately 1.53 km to the south-west and at this distance the wind turbines will usually dominate the landscape. However at the locations around the garden established vegetation does assist to filter and screen views to the wind turbines. Because of the distance and the intervening vegetation from many locations the visual impact is assessed as medium.

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Gareth & Shondelle Price-Jones 390 This property has a relatively new house with a very immature garden. The house is identified as B12a. It is on a 16 ha allotment to the south of B12 and close to the perimeter of the wind farm site. Two turbines are located within 1 km of the dwelling (BAN_14 and BAN_15) and another 3 within 1.5 km. Mr Wyatt produced a supplementary photomontage taken from a patio at the rear of the house with views to the south-west. The nearest turbine is 0.95 km from the dwelling and on the ridgeline so that it is above the dwelling and would be dominant in the landscape and outlook from the dwelling. 391 Mr Wyatt rates the visual impact as high with no screening and medium with landscaping but qualifies this by stating that screening may not be applicable as this would also block views from the patio. We are not satisfied that landscaping would be sufficient to reduce the visual impact to a suitable level. We also note, from the site visit, that the windows of living areas and bedrooms also face the south-west and therefore the view is not just seen from the patio. The EA indicates that the site is compliant for noise (for the turbines modelled) and shadow flicker. 392 Even if landscaping would, after a lengthy establishment period, mitigate these impacts (a position that we find it difficult to envisage given the location of the turbines coupled with the orientation of the dwelling and its utilised open space areas between the dwelling and the turbines), the time period that would be necessary before such screening could be achieved would be so long as to be unreasonable if there were to be retention of any reasonable outdoor area for the house. Any shorter-term achievement of screening would need the plantings to be so dense and overwhelmingly close to the house as to constitute, in itself, an entirely unreasonable impact on the amenity of this dwelling. 393 It is our opinion that the visual impact is such that the company be required to either acquire this property or delete turbines BAN_14 and BAN_15. As a consequence, this property has been included in the acquisition schedule on this basis. 394 We have also concluded that the unacceptability of the impact on this property would be exacerbated, to a minor extent only, if aviation hazard warning lighting were to be required in the future. Raggett 395 The Raggett property (B5) includes the old Kialla schoolhouse. Mr Raggett gave oral evidence concerning the expected loss of property value and the financial consequences for his retirement. He stated that the house was unique and would attract 'niche' buyers who would be less inclined to purchase the property if the wind farm went ahead. The house is just inside a 2 km radius from the nearest turbine, BAN_14. The allotment is less than 1 ha and screened by trees however, Mr Raggett states in his written submission that these trees are about 100 years old and dying. 396 Because of the topography, even without landscape shielding, there will be a view from this property of the wind farm that will run from the south-eastern group of turbines in the Kialla sector (if they are replaced) along the whole of the face of the Bannister sector. It is likely that significant portions of more than twenty of the Bannister sector turbines will be visible at distances to a maximum of 4 km or so. If they are reinstated, the seven south-eastern Kialla turbines would be added to this number. However, there is no shadow flicker or noise impact on this property. 397 Although on the flatter land thus looking west modestly upward towards the escarpment of the range rather than being at an elevated position, there is no significant conceptual or impact difference between this property and the Clark and similar properties discussed earlier in the Mummel area. Although the outlook will undoubtedly be changed by the insertion of industrial structures in its landscape outlook to the west, there is no impact that would warrant any modification to the proposal let alone refusal of it. If the proponent does not elect to acquire the Gareth and Shondelle Price-Jones property but eliminates BAN_14 and BAN_15, this property will receive an (unrequired) improvement in its outlook. 398 We have also considered whether or not the conclusion that we reached with respect to this landholding would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that, at the distance that the turbines that impact on this property are proposed to be located, there would be no additional visual impact of any significance.

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Northern section - northern property Murphy 400 This property was not inspected. There appears to be, from the topographical map and air photo, two dwellings located on it, one being K 19 and the other being un-numbered. Originally the four north-western turbines proposed for the Kialla sector would have been within about 1.1 km and 1.5 km of the closer of the two dwellings with the second dwelling being some 200 m or so further removed. However, these turbines are the ones that have been removed as a consequence of the Crookwell airstrip considerations and are not subject to the option for possible future reinstatement. 401 Two of the Kialla sector turbines, KIA_02 and KIA_01 will be 2 km or a little further from these dwellings. There will be no noise impact on these dwellings and no shadow flicker impact on them. The nature of the topography makes it unlikely that any of the northern turbines in the Bannister sector will be visible from these dwellings. Even if some of these turbines were wholly or partially visible, such a view of turbines would be inconsequential. There is, therefore, no basis impact on this property warranting modification of the proposal let alone its refusal. 402 We have also considered whether or not the conclusion that we reached with respect to this landholding would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that, due to the distance from and limited numbers of turbines visible from this property, there would be no additional visual impact of any significance. Northern section - north-western properties Dennis Hewitt 403 Mr Denis Hewitt has a landholding with a dwelling (K14) that is some 585 ha in area and comprising, on our count, more than 25 individual allotments. His land is primarily located to the east of the Grabben Gullen Road - although six of the existing allotments totalling some 75 ha (and including the location of his residence), are located to the west of the Grabben Gullen Road. At the present time, only two of his existing allotments appear to exceed 40 ha in area and they are located at the south-western corner of his landholding to the east of the Grabben Gullen Road. It was his evidence that he had been advised by the council that his total landholding was potentially capable of subdivision into 18 allotments. This would comprise 11 allotments of 40 ha or more and seven concessional allotments of varying sizes but all significantly less than the 40 ha minimum allotment standard. 404 The existing house is located on the western side of Grabben Gullen Road and is screened from the proposed wind farm by a row of mature Cypress trees. Mr Hewitt accepts that the trees currently provide screening but contends that they are in decline and will shortly need to be removed. He stated that the trees were about 80 years old and that their replacements would take many years to provide acceptable screening. 405 Apart from the visual impact on his existing house, Mr Hewitt estimates, in his submission, that KIA_01, KIA_02, KIA_03, BAN_01,BAN_02, BAN_03 and BAN_04 will be within 10-300m (elsewhere in the submission he gives distances of 40-770m) from his eastern boundary and thus would destroy any prospect of subdivision. As a result, he estimates this will reduce the value of the property by 50% and thus lose value of their retirement asset. We observed earlier that KIA_03 has been deleted. As also earlier noted, several times, loss of value is not a matter we are permitted to consider. 406 It is our arboricultural assessment that these trees, although toward the end of their useful life, will not need to be removed in the near future. It is certainly feasible to plant supplementary rows of fast growing screening trees, such as Leighton Greens, in the area to the east of the present Cypress trees in anticipation of future failure or removal of the present trees. 407 Mr Hewitt's existing dwelling it is approximately 1.6 km from the nearest turbine - a turbine that is almost directly to its east, being KIA_01. KIA_02 is located slightly to the north of this turbine. These two turbines will be screened from view by the Cypress trees. The group of four turbines at the north-west of the Kialla sector have, as earlier noted, been removed as a consequence of the Minister's decision (not now contested by the proponent) responsive to the location of the Crookwell airstrip. The group of six turbines at the north-west of the Kialla sector, those remaining and those removed, had comprised the cluster of six turbines that was closest in proximity to this dwelling. 408 A number of other turbines in the north-western cluster of the Bannister sector would be able to be viewed from this dwelling but for the screening trees that presently exist. However, these turbines would be more than 2 km from the existing dwelling. The existing dwelling will not be impacted by noise and, even if the vegetative screening were not present, it would be outside any distance for any possibility of shadow flicker warranting consideration. There is, therefore, no impact on this dwelling that would warrant modification of the proposal let alone its refusal. 409 We have also considered whether or not the conclusion that we reached with respect to this dwelling would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that the distance from and screening of turbines visible from this dwelling, there would be no additional visual impact of any significance.

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412 We turn, next, to Lot 121. It is adjacent and to the south-east of Lot 118. This allotment lies almost entirely within 2 km of the nearest turbines with its western boundary (abutting Lot 118) approximately lying along the 2 km line from the closest turbine (this would be BAN_04). The turbines that would be most visible from any house sites on this allotment would be those in the north-western cluster of the Bannister sector. The air photo does not show any significant vegetative screening on this existing allotment. The distances from this allotment to the nearest turbines means that there would be a range of potential dwelling sites that could not conceivably be impacted by those turbines. In addition, the distance to BAN_04 and BAN_03, the only turbines that could potentially create any shadow flicker impact on this allotment, is such that, even taking Dr Slack's evidence on a precautionary basis, there is no prospect of anything other than minimal shadow flicker, at most, on some of the more northern portions of this allotment. As a consequence, assuming that Lot 121 does have an existing dwelling entitlement, there is no impact from the proposed wind farm on any dwelling site on this allotment that would warrant a modification of the wind farm let alone its refusal. 413 We have also considered whether or not the conclusions that we reached with respect to Lots 118 and 121 would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that, at the distance that the turbines that impact on the allotments are proposed to be located, there would be no additional visual impact of any significance on either of them. 414 We are therefore satisfied that there is no possible impact on this landholding that would warrant a modification of the proposal let alone its refusal. Paul Hewitt 415 Mr Paul Hewitt owns 2 allotments in the Grabben Gullen village, both with dwelling entitlements and one adjoining rural allotment with a house (B68). The properties are on the south-western side of Grabben Gullen Road. Mr Hewitt voiced his concern about the change in the landscape from rural to industrial and the subsequent impacts on property values. The properties are outside a 2 km radius from the closest turbines in the Bannister sector. There will be no noise impact on the dwelling or the vacant allotments and no shadow flicker impact on them. As also earlier noted, several times, loss of value is not a matter we are permitted to consider. 416 The visual impact matters that require to be considered with respect to these three allotments are generally the same as those that were considered in our earlier discussion relating to public domain impacts in Grabben Gullen village. The photomontage reproduced earlier shows the outlook towards the nearest turbines from the village and is equally representative, qualitatively, of the visual impact on any of these allotments. For the reasons given about the village, as we consider they are sufficiently similarly applicable to these allotments, there is no basis for these allotments to require modification of the proposal let alone its refusal. 417 We have also considered whether or not the conclusion that we reached with respect to this landholding would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that the distance to and limited numbers of turbines visible from the dwelling and the two allotments, there would be no additional visual impact of any significance.

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Hyde 418 The Hyde property (B29) is a ~ 2.4 ha 'lifestyle' allotment surrounded by allotments belonging to Mr Hogan. Mr and Mrs Hyde purchased the property for its rural setting. Mr Hyde contends that they would not have purchased the property had they known of the proposal for a wind farm and considers that this will deter future prospective buyers. He is concerned about the visual impact and noise. He estimates a loss of value of 33%. As also earlier noted, several times, loss of value is not a matter we are permitted to consider. 419 Mr Wyatt prepared a supplementary photomontage from the property. In Mr Wyatt's comments he states that the house has a well-established garden and service areas on the side from which the views to the wind farm would be possible. The nearest turbine is about 1.23 km away (BAN_09) but the established vegetation between the residence and the turbines will lessen the visual impact. He rates the visual impact as low without screening and low with additional screening. Mr Hyde contends that the photomontage did not take into account views from his kitchen window that he says are important. 420 Consideration of the topographical map shows that it is likely that most of the elements of turbines BAN_04, BAN_09 and BAN_10 will be visible from this dwelling and, probably, a number of smaller elements of up to four or five other turbines. Turbines BAN_04, BAN_09 and BAN_10 will all be no more than ~ 1.4 km from the dwelling. There will be no noise or shadow flicker impacts on this property. 421 Although there will be some intrusion of industrial structures (turbines) into the outlook to the east, we do not consider that they will not dominate the outlook from this property. We accept Mr Wyatt's evidence that the visual impact will be low and in the absence of any other adverse impacts, this does not warrant modification of the proposal let alone refusal of it. 422 We have also considered whether or not the conclusion that we reached with respect to this landholding would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that the distance from and limited numbers of turbines visible from this property, there would be no additional visual impact of any significance.

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432 Given the fact that the topographic map discloses that the ground in this vicinity rises comparatively gently towards the Gullen Range to the east, it is likely that, in addition to the two Bannister sector turbines earlier nominated, further Bannister sector turbines are also likely to be visible. The closest of these turbines will be BAN_03 and BAN_07 to the north-east at approximately 1.2 km and BAN_10 and BAN_11 to the south-east also at approximately 1.2 km. The remainder of the turbines are likely to be able to be viewed will be no closer than 1.5 km. 433 The distance from visible turbines coupled with the existing available vegetation and our conclusions concerning noise and shadow flicker lead us to the conclusion that there is no impact on this dwelling site that would warrant modification of the proposal let alone its refusal. 434 We have also concluded that the impacts on this possible dwelling location would be exacerbated, to a minor extent, if aviation hazard warning lighting were to be required in the future - but not so as to warrant our conclusion concerning this element of Mr Hogan's landholding. 435 Mr Hogan's existing dwelling is some 250 m to the south-west of the possible dwelling location on Lot 2 DP 541500. The outlook from and visual impacts on Mr Hogan's dwelling are generally similar to that described above - although obviously the BAN_04 turbines are further away and the BAN_09 turbines are closer. Our conclusions concerning noise, shadow flicker and the possibility of aviation hazard lighting are the same as those for the possible dwelling location on Lot 2 DP 541500. As a consequence our conclusion concerning this dwelling is, necessarily, that there is no impact that would warrant modification of the proposal let alone its refusal. Ryman 436 Mr Ryman owns a 4.4 ha property on Grabben Gullen Road with a dwelling (B55) and an old school building from the former Gullen Public School. BAN_10 is the closest turbine at about 1.5 km to the east. Mr Ryman contends that the dominant feature of the landscape is its natural form and that this will be lost if the turbines are approved. He believes that landscaping will be ineffective. Whilst his view is somewhat screened by trees, they are elms and therefore deciduous and less effective as a screen in winter. He is also concerned that should elm suckers be removed from an adjoining drainage easement, he will be further exposed. 437 Although the location of Bannister turbines directly to the east of this property will be at a distance of about 1.5 km, taking an extremely precautionary approach to Dr Slack's conclusions, even if there were to be some shadow flicker impact, it will be minimal. There is no noise impact on this property. 438 Whilst four central Bannister sector turbines are likely to be visible directly to the east with other Bannister turbines visible to the north-east and south-east (but at significantly longer distances with these longer views being moderated by intervening topographic features), the overall visual impact on this property will also be very low even if we assume only minimal vegetative screening at any time of the year when the deciduous trees have shed their leaves or if the shielding vegetation off the property itself were to be removed for some public land management reason. 439 We do not consider that visual impact this property provides any basis to require modification of the proposal let alone its refusal. 440 We have also considered whether or not the conclusion that we reached with respect to this landholding would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that the distance from and limited numbers of turbines visible from this property, there would be no additional visual impact of any significance.

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Northern section - south-western properties Montgomery - B7/B17 photomontage 442 We visited the Montgomery property on Range Road Grabben Gullen to view a supplementary photomontage produced by Mr Wyatt in response to the Guardian's concerns that an inadequate number of visual assessments had been undertaken from private properties. The Montgomerys were not present at that visit but Mr Montgomery gave oral evidence on the second day of site visits. 443 The Montgomerys have approval to subdivide their land into 5 allotments. On two of the allotments are existing dwellings, B17 and B7 and the approved house sites on two of the other allotments are B121a and B122a. B17 is 1.5 km away from the nearest turbine and B7 is 1.4 km away from the nearest turbine, BAN_18. B121a is 0.8 km away and B122a is only 0.6 km away from the nearest turbine, BAN_24. The photomontage was taken near B17 and B7 at a site selected by Mr Wyatt to represent the worst-case location for both properties. Whilst he states in his assessment that at a distance of about 1.4 km the turbines will be highly visible and dominate the landscape, he rates the visual impact as moderate because of groups and rows of poplars and other deciduous trees in the middle ground. He rates the visual impact as low with additional screening. 444 However it is important to observe, in this context, that the trees that provide screening are deciduous and that the extent to which screening will be provided during autumn and winter by the bare skeletal structures of these trees is significantly less than the screening that will be provided whilst they are in foliage. 445 The most affected allotments on the Montgomery landholding are the approved dwelling sites on the sub-divided lots. According to their submission, there will be four turbines within 1 km of these sites. Their estimate shows BAN_24 to be 670 m from B121a and BAN_29 to be 470 m from B122a. 446 Shadow flicker will be somewhat of an issue at 122a with the EA giving 28 hours per annum with allowance for reduced cloud cover. However, based on Dr Slack's further adjusted calculations he gives 22 hours p.a. as the expectation with reduced cloud cover. 447 As we earlier observed, for reasons associated with the Goulburn derivation of cloud cover data, it is appropriate to take a precautionary view with respect to the numbers derived from Dr Slack's calculations. 448 In addition, the MDA report in the EA identifies these sites as being exposed to non-compliant noise levels at wind speeds of 5, 6 and 7 m/s for the MM92 turbine whilst the data tendered by the Guardians shows these sites as being exposed to non-compliant noise levels at wind speeds of 5, 6, 7, 8, 9 and 10 m/s for the V90 3MW turbine. 449 In our opinion, landscape screening is unlikely to satisfactorily resolve the visual impact on any dwelling erected at either of these two sites. We have reached this conclusion because of the proximity of each relevant turbine and the topography that will have each relevant turbine at an elevated level relative to the house site impacted by that turbine. 450 Therefore, we have concluded that the visual impact of the proposed wind farm on each of these house site allotments, when coupled with possible noise and some shadow flicker impacts, is unacceptable. As a consequence, the allotment with house site B121a is to be acquired by the proponent or turbine BAN_24 is to be removed. Similarly, the allotment with the house site B122a is to be acquired or turbine BAN_29 is to be removed. 451 We have also concluded that the unacceptability of the impacts on this property would be exacerbated, to a minor extent, if aviation hazard warning lighting were to be required in the future. 452 We turn, now, to the two existing dwellings on the Montgomery landholding, B7 and B17. Mr Wyatt produced a photomontage based on a location between these two dwellings and looking to the east toward the wind farm. He rated the visual impact as being moderate but, with screening, as being low and acceptable. In order to understand the conclusions we have reached with respect to these dwellings, it is also appropriate to reproduce the relevant photomontage:

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457 We have also concluded that the unacceptability of the impacts on this property would be exacerbated, to a minor extent, if aviation hazard warning lighting were to be required in the future. 458 We do note that, if the proponent elects to delete turbines rather than to acquire the three allotments in this vicinity that are on the acquisition schedule, there will be an improvement in outlook from these two dwellings. Werrin 459 Mr Werrin gave evidence (at the Daniel Hewitt property) concerning two existing dwellings on his landholding and on its subdivision potential. The question of subdivision potential is dealt with separately, later. The two existing dwellings can, from Mr Werrin's evidence, conveniently be described as the old dwelling (B41) and the new dwelling (B124). We accept Mr Werrin's uncontradicted evidence that, as we understood it, both the old house and the new house have northerly aspects - although we did not, for reasons of time constraints, have the opportunity of inspecting these dwellings. 460 An examination of the topographic map reveals that it is likely that the old dwelling, that is the more westerly of the two dwellings, will be at least somewhat shielded from viewing the closest turbines (BAN_29 and BAN_30). The old house will, however, be able to view a number of the turbines in the second sector, a group comprising BAN_09 to BAN_12, in a northerly direction. The closest turbines to the north-east of the old dwelling would be some 2.6 km away while those to the north would be over 4.5 km away. 461 Mr Wyatt assessed the visual impact on the old dwelling as being low. He did so by application of the methodology earlier described. Although we have not accepted his conclusions in each instance, we are satisfied that the combination of distance, primarily, and secondly, the general linear arrangement of the turbines, renders the impact on this dwelling acceptable. There are no shadow flicker influences and the predictive noise map makes it clear that there is no noise non-compliance for this dwelling.

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Daniel Hewitt 465 Mr Daniel Hewitt has an allotment with a dwelling entitlement but not a development consent for any dwelling. The nearest marked dwelling site is B121a some 200 m to the west of Mr Hewitt's boundary. There are 7 turbines within 1 km of the boundary, a further 6 within 1.0-1.5 km and another 2 between 1.5 and 2.0 km. The closest turbine is about 400 m from the eastern boundary of this small allotment. Mr Wyatt's evidence was that, given the topography does not provide any opportunity for sheltering of the visual impact and the proximity of the turbines, the visual impact on this property should be regarded as high. In oral evidence given in Court, Dr Slack estimated that this property would experience more than 31 hours of shadow flicker per annum. This allotment falls within the 35dB to 40dB noise contour and, as a consequence, given that we understand that there should be a confidence margin in the noise modelling, we cannot be certain there will not be an unacceptable noise impact on this property. 466 As a consequence, we consider that the impacts of turbines BAN_22, BAN_23 and BAN_24 on this allotment are unacceptable. 467 We understand that the proponent accepts that it is appropriate that this allotment be included in the acquisition schedule. However, to be consistent with the approach later discussed concerning land acquisitions, the proponent should be put in a similar position with respect to this allotment - that is of being offered turbine removal as an optional alternative to acquisition - as part of the overall strategic assessment options arising out of the decision. As a consequence, if the proponent does not elect to acquire this property, turbines BAN_22, BAN_23 and BAN_24 are to be deleted from the wind farm. 468 We have also concluded that the unacceptability of the impacts on this property would be exacerbated if aviation hazard warning lighting were to be required in the future. Toole 469 Mrs Toole is a self-funded retiree and owner of a 98 ha allotment. Her house is identified as B24. We did not inspect the view from the house but drove past it. Mrs Toole gave oral evidence at the Daniel Hewitt property. She stated her concerns about the negative impact the turbines would have on the value of her property and on the rural setting of the district. 470 Mrs Toole stated that she has the potential to sub-divide her property and that the site has an entitlement of at least 2 dwellings. Mrs Toole's house is approximately 1.4 km from the nearest turbine, BAN_30, the most southerly of the Banister group. 471 There will be no shadow flicker impact and no adverse noise impact on the house and, assuming that she is correct that she has a present entitlement to a second dwelling, sites for it are available that would be at or beyond a 2 km radius from BAN_30. There would be no noise or shadow flicker impact on any second dwelling site on this landholding (assuming that there is such an entitlement). 472 It is likely that part of BAN_29 and part of BAN_30 would be able to be viewed from the existing dwelling. BAN_28, immediately behind BAN_30, will be able to be seen but will be less perceptible. There is a degree of topographic screening from an intervening knoll that will mean that it is unlikely that the whole of these turbines will be able to be viewed. That which is likely to be most visible will be BAN_29 at a distance of almost 2 km from the existing house. 473 Taking all its factors into account, we are satisfied that the overall impacts on this existing dwelling would not warrant modification of the proposal let alone its refusal. Given that any second dwelling on this landholding, if there be such an entitlement, could reasonably be located so that the impact of the wind farm on such second dwelling would be less than the impacts on the existing dwelling, there is no basis upon which any such second dwelling entitlement could provide any basis for modification of the proposal let alone its refusal. 474 We have also considered whether or not the conclusion that we reached with respect to this landholding would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that, at the distance that the turbines that impact on this property are proposed to be located, there would be no additional visual impact of any significance.

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476 The Kings have approval for a 20-lot sub-division with dwelling entitlements for 17 of the allotments. These are in addition to the three existing dwellings on the property identified as PW26, PW27 and PW22. These dwellings are more than 3 km away from the nearest turbines and the Kings' house is well screened by established trees. The King subdivision is located to the west and south-west of the Pomeroy group of turbines. 477 The marked air photo of the King subdivision shows the approved allotments and the approved building sites upon the allotments that are to the east of the creek line. The allotments to the east of the creek line are quite heavily vegetated and the allotments to the west and south-west are open and lightly timbered. The proposed house sites on Lots 4 to 13 are variously within a 2 km radius of turbines POM_08 to POM_23. House sites 6, 7, 8, 9,and 10 are within a 1 km radius. However, the turbines in contention are POM_12 to POM_20. 478 We visited the designated house sites 6, 7 and 8, deemed to be the most affected by the wind farm. Access to the sites required 4 wheel drive vehicles and there were no formal tracks on some allotments. The proposed house sites on these allotments are located to take advantage of views across the range to the east. The eastern boundaries of Lots 8 and 9 fall away steeply and the house sites are located on relatively flat ground at the highest points of the allotments. The proposed location for POM_19 is within 50 m of the northern boundary of Lot 9 and the southern boundary of Lot 8. POM_20 to POM_23 are located on the top of a cleared spur located across the valley from Lot 9 and running in a south-easterly direction. POM_12 and POM_13 are close to the proposed house sites on Lots 6, 7 and 8. 479 In the Minister's approval of the project, conditions 2.23 to 2.27 relate to acquisition of a portion of the Kings' land. In essence, the conditions state that if the proponent plans to go ahead with any or all of 7 turbines POM_12 to POM_16, POM_19 and POM_20, the owners of Lots 5 to 12 are to be notified. Within one year of this notification, any of the owners of those allotments can request the proponent to acquire the whole or part of their property. A timeline and process are set for the valuation and acquisition. 480 The reasons given, in the Director-General's assessment report provided to the Minister, for imposing the acquisition conditions for Lots 5 to 12, are set out later in our discussion of the structure of the acquisition condition imposed by the Minister. 481 The Kings oppose the Minister's conditions as they contend that there is no time limit imposed on the proponent to proceed with the nominated turbines and the conditions imply that the subdivision will have to be 'created' before any notification. Similarly, the implication is, they say, that they will need to make a significant investment to develop the allotments before a decision may be made to acquire the land. In their view, this would be wasted expenditure and potentially increase the amount of compensation payable by the proponent. They argue that there is too much uncertainty in the drafting of the conditions of consent and that their preferred position is to for the turbines to be removed rather than their land acquired. 482 They are also concerned that, should the lots be acquired under the current conditions of consent, it may leave the way open for development 'creep' by providing the proponent with an opportunity to use the land for turbines. To that end, the Kings proposed an additional condition that would require the proponent to retain the acquired land, for the life of the wind farm, as a buffer zone upon which no turbine or electrical or other wind farm infrastructure could be erected. 483 In final submissions for the Kings, Mr Masten noted that no acoustic assessment was carried out for the Kings' subdivision as part of the EA. He submitted that for the 8 worst affected allotments, Lots 5 to 12, the separation distance from the turbines is inadequate. The only assessment on the proposed house sites was an estimate of predicted noise levels prepared by Dr Tonin based on the noise contours derived from the MDA report in the EA and the locations of the proposed dwellings provided by the Kings.

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Proposal for acquired land to be a buffer 529 The Kings also seek that we require a condition imposing restrictions on what the proponent might do on any of the elements of the Kings' landholding that the proponent might acquire. This arises, particularly, in the context of discussions that took place, during the course of the site inspection, about whether or not the proponent might wish to seek some relocation of turbines POM_12 or POM_13 if Lots 6, 7 and 8 of the Kings subdivision were to be acquired and the proponent considered that moving these turbines some distance on the land so acquired would be beneficial for the project. 530 The position advanced by the Kings is that it would be reasonable to require the retention of any of their allotments that were acquired by the proponent - to be without wind farm infrastructure being constructed on them - so they would act as a buffer zone to the remainder of their subdivision allotments. 531 The condition proposed on behalf of the Kings is in the following terms: If the King subdivision land or any part of it is acquired by the proponent under or pursuant to or as a consequence of these conditions, it must be retained by the proponent during the lifetime of the windfarm the subject of this Approval as a buffer zone to protect each and every part of the remainder of the whole of the King land from the impacts of that windfarm and, in particular, the proponent and/or its successors in title to the King subdivision land or any part of it will not cause, permit or allow to be erected, installed or operated upon it any turbines or other infrastructure for the purposes of or related to a windfarm development or otherwise for purposes of or related to the generation or supply or intended generation or supply of electricity. 532 The proponent and the Minister resist the imposition of such a restriction on use of any of the Kings' land that might be acquired by the proponent. Their common position is that any proposal to modify the consent to permit the location of windfarm elements on any land acquired from the Kings should appropriately be dealt with by modification application subject to an appropriate assessment process. 533 We are satisfied that the position advanced by the proponent and the Minister is to be preferred to that advanced for the Kings. We have reached this conclusion for the following reasons. First there is, in our view, a sufficient public policy interest in the efficient utilisation of renewable energy sources that impediments of the nature sought by the Kings are inappropriate. However, of far greater importance, is the fact that such a restriction would stand in the way of even the most minor alteration to the wind farm even if its use of acquired King land was absolutely inconsequential. The most efficient method of concrete placement for the foundation pad of POM_19, for example, might require the construction of an access track over that part of the Kings landholding that is on the acquisition schedule. We consider that it would be far too restrictive to accede to the Kings' proposal - a proposal that has the potential to cause obstruction to elements of the wind farm even when there are no possible impact concerns. We conclude, therefore, that this proposed restriction should be rejected. Restriction on use of acquired land 534 The Kings also seek a condition requiring a restrictive covenant to be placed on any of their land that might be acquired by the proponent restricting the use of such land for any form of intensive livestock production. The condition that they seek is in the following terms: A restrictive covenant burdening each and every part of the King subdivision land in favour of each and every part of the land retained by the Kings or their successors shall be placed on any land acquired prohibiting such land being used for intensive purposes such as feedlots, piggeries and poultry sheds or other uses which are either more intensive than the present use or which would detrimentally affect the existing rural ambience. 535 If such uses are permitted by the present Local Environmental Plan (and/or will be permitted by the new Local Environmental Plan to be prepared pursuant to the state-wide template) on any land acquired by the proponent from the Kings, we see no merit basis for imposing such a condition. 536 In addition, if such development is or would be permissible and the proponent or any successor in title to the proponent of any land acquired from the Kings wished to undertake such an activity, such activity would, in the ordinary course of events, require a development application that would have to go through the ordinary assessment process - a process that would provide the opportunity for objections if there were proper bases for such objections. 537 We see no reason why, absent any indication that the proponent or any successor in title might contemplate such an activity that we should impose such a speculative condition even if we had power to do so. 538 However, in addition to these views, we also do not believe that such a condition would satisfy either the first or the third of the Newbury tests (cf Newbury District Council v Secretary of State for the Environment [1981] AC 578; [1980] 1 All ER 731) and therefore could not, in any event, be imposed. Cumulative impact on the northern sector 539 With respect to the totality of impacts on individual properties in the northern sector, we have also considered whether these impacts, considered cumulatively over the totality of these properties (rather than on a property by property basis) should warrant us drawing any differing conclusion - either with respect to the overall project or with respect to any individual turbines. We have concluded that the totality of these impacts leads to the conclusion that nothing concerning this sector, collectively, warrants alteration of the project let alone its refusal. Cumulative impact on all individual landholdings 540 With respect to the totality of impacts on all individual properties in both sectors, we have also considered whether these impacts, considered cumulatively over the totality of these properties (rather than on a property by property basis) should warrant us drawing any differing conclusion - either with respect to the overall project or with respect to any individual turbines. We have concluded that the totality of these impacts leads to the conclusion that nothing, in total, warrants alteration of the project let alone its refusal. Landscaping conditions 541 The landscaping condition contained in clause 2.2 of the Minister's conditions requires that landscaping be provided to all non-associated residential dwellings, if so requested, that are within a 3 km radius of a turbine and where it is possible to view a turbine from that residence. The condition is structured so that a request must be made by the owner of the dwelling within six months from the commencement of operation of the wind farm. 542 The conditions proposed by the Kings envisage a different landscaping regime and one which is more closely attuned to condition 31 imposed by Preston CJ in Taralga following his discussion of general landscaping implementation matters at paras 284 to 289 in that decision. 543 As a general proposition, as a matter of comity, we consider that the structure of the landscaping condition here, including the various time elements in the condition, should reflect the structure of the condition in Taralga (but with the 3 km radius envisaged in these proceedings as opposed to the 2 km radius in Taralga). 544 Whilst a condition so structured will not be precisely identical with that which is proposed by the Kings (and adopted by the Guardians for broader application in these proceedings), nonetheless we are satisfied that the approach identified by His Honour in Taralga is the appropriate one for adoption here. 545 The second significant matter identified by the Kings in their proposed landscaping conditions (and also adopted by the Guardians for broader application) is the proposal that the landscaping entitlement should not merely apply to existing dwelling houses but should also apply where a dwelling house is designated to be located. The effect of this would be to include in the landscaping entitlement regime all relevant designated dwelling sites on the Kings landholding; all relevant designated dwelling sites on the Christie landholding (unless, as appears possible from the topographic maps, the designated dwelling site on Christie Lot 11 is outside the relevant 3 km radius - in which case the designated dwelling site on Lot 11 will be excluded from the benefit of the landscaping condition); and both relevant designated dwelling sites on the Montgomery landholding. 546 In Taralga, Preston CJ dealt with several circumstances where he considered, as a matter of discretion, variation of the landscaping regime was appropriate so that an entitlement to landscaping would arise even though it would not otherwise have been triggered by the qualifying distance element of the condition. One of those, a property known as St Ives (on the outskirts of Taralga village), is not relevant in these proceedings. However, the other, the Cushendall Vineyard, was discussed by His Honour, in para 190, where he dealt with the particular circumstances and determined that a combination of the intensive nature of the vineyard development together with the clear present intention of its owners to erect a dwelling warranted that future dwelling having such a landscaping entitlement. 547 We also note that there were no subdivisions with designated dwelling sites that His Honour was required to consider in Taralga. 548 In this instance, the fact that there are designated dwelling sites on a number of subdivision allotments where those subdivisions had been approved prior to be Minister's consent being granted leads us to the conclusion that it would be appropriate to extend the landscaping condition to those allotments where there is a dwelling entitlement and there is a designated quelling site. For the Dennis Hewitt allotments where there may be a dwelling entitlement, there does not appear to be any basis upon which, as a matter of discretion, we would extend such an entitlement to them. We also would not, as a matter of discretion, extend this entitlement to Mr Hogan's additional dwelling entitlement.

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554 The proponent now seeks that condition 1.5 "be modified to provide that any relocation of turbines is to be in accordance with the process set out in s75W of the EP&A Act". 555 The Director-General's assessment report dealt with this issue, at 2.2, in the following terms: The Proponent has identified an indicative turbine layout (illustrated in Figure 3 and Figure 4), subject to final turbine selection. In order to adhere to noise level constraints set by the Department in the Director General's Requirements, the proponent has requested flexibility in the turbine layout allowing micro-siting of turbines within 250 metres of the indicative turbine layout. This flexibility was raised as a significant concern in a number of submissions on the project, particularly in the context of the potential for the Proponent to unilaterally shift turbines by up to 250 metres from the locations considered by stakeholders and presented in the Environmental Assessment. The Department supports concerns raised by submitters in this regard, and considers that this level of 'flexibility' detracts from the certainty and finality of any project approval that may be granted. As such, the Department has recommended that the Proponent be expressly prohibited from relocating wind turbines by 'up to 250 metres' in this manner. It should be noted that notwithstanding this prohibition, the Environmental Planning and Assessment Act 1979 permits the Proponent to make minor amendments to the project where such amendments would not be inconsistent with the approved project, or to seek the Minister's approval to modify the approval if the amendments are in fact deemed to be inconsistent. The Department considers that these existing provisions of the legislation are the appropriate means for dealing with any necessary shift in turbine locations, rather than the 'flexibility' mechanism suggested by the Proponent in the Environmental Assessment. 556 We understand that the practical effect of the present condition 1.5 is consistent with the Director-General's position and also reflects what the proponent now seeks and it thus does not require alteration - therefore no change will be made. Sealing of section of road 557 Condition 2.44 of the Minister's conditions is in the following terms: Prior to commencement of construction of the project, the proponent shall undertake sealing of the 1.8 km unsealed section of Range Road in conjunction with Upper Lachlan Shire Council. Plans to shoulder widening, including the geometric road design and pavement design, shall also be made in consultation with Upper Lachlan Shire Council.

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573 In addition, the proponent also proposed the establishment of a community enhancement program which, in the proponent's proposal, would receive $75,000 per year for the life of the wind farm and would be used for the provision of solar energy and other renewable energy projects for residences within 10 km of the wind farm with, depending on the take-up rate of such domestic projects, any annual surplus being applied to the council's community development fund. Whilst there is dispute between the proponent, on one hand, and the Minister and the council on the other concerning the annual amount to be applied for community benefiting purposes and some dispute as to the community benefiting purposes for which it is to be applied, there is no dispute that there should be this further additional economic benefits into the area, of at least $75,000 per annum, if the proposed wind farm is constructed. 574 On the other hand, members of the Guardians have said that subdivision of those landholdings that have this potential will attract additional economic activity by the recruitment of "tree-change" households into the local community. This, it is said, is already occurring to some extent and is reflected by the fact that a number of subdivisions of this nature creating what are essentially lifestyle allotments rather than viable rural landholdings have already been approved for properties such as the Christie or King landholdings. 575 The material provided by the proponents concerning the economic benefits of the project coupled with the social desirability of the encouragement of renewable energy, as discussed by Preston CJ in Taralga and, since that decision was given more than two years ago, the increasing volume of scientific evidence from bodies such as the International Panel on Climate Change, combine to provide a powerful degree of certainty about the benefits of this proposal, in particular, in its local context, on a smaller scale, but, also, on a broader societal front.

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598 The council has, as part of its submissions in these proceedings, supported the Minister's condition as to contribution level and the basis for utilisation of those contributions. 599 We turn, first, to the question of the appropriate level of contribution that should be required. In this regard, we have the evidence of Mr Durran, an executive of the company, that there was no calculated basis that provided any foundation for the amount that had been offered for the Cullerin Range wind farm community contribution. He said that the amount had been selected by the proponent because it reflected what the company considered was a fair and reasonable amount under the circumstances. 600 We were also provided a table that showed what would be the rate per turbine that would be derived if the contribution rate for the Cullerin Range wind farm of $25,000 per annum were to be attributed on a per turbine basis. The result of such a calculation shows that the Cullerin Range wind farm contribution is $1,666 per annum per turbine for the life of that wind farm. 601 It is clear, from the material contained in the environmental assessment and other evidence given in the proceedings that final selection of the turbines to be used in this proposed wind farm will be dependent on a number of matters including availability of turbines, exchange rates, expectations concerning electricity prices and the like. 602 However, we are of the view that any proposed compensatory payment ought only relate to the generating capacity of a turbine if there is some particular extent to which the visual impact of a turbine alters as a consequence of any change in the generating capacity of such turbine. 603 The position as noted in RES Southern Cross v Minister for Planning and Taralga Landscape Guardians Inc. [2009] NSWLEC 1034, at para 19, is that there is little or no perceptible difference in noise between a wind farm installation such as that presently operating at the Cullerin Range wind farm and that wind farm if there were to be any increase in the generating capacity of its turbines. 604 The position is also that there is no visual impact of any significance caused by either the height of the rotors or the height of the tower supporting the turbine nacelle if there any increase in the generating capacity of the turbines. Further, there is no additional visual impact from the turbine nacelle housing of a more powerful turbine, as there is no increase in the size of the nacelle. 605 All this leads inescapably, in our view, to the conclusion that there is no rational basis upon which the visual impact of a wind farm could be linked to its electricity generation output capacity. 606 On the other hand, although we accept that the proponent selected $25,000 on some abstract basis as being the appropriate amount for compensation for the Cullerin Range wind farm, the proponent obviously considered that that was the appropriate amount to compensate the local community for the presence of 15 turbines in their landscape. 607 Although, in this instance, there are proposed to be significantly more turbines in the Gullen range landscape than the Cullerin Range wind farm, we are satisfied that the turbine arrangement (within the four sectors and across the two distinct halves of this wind farm) is not so radically dissimilar to a repetition of the clumping and tailed arrangements of the Cullerin Range wind farm that a per turbine rate derived from the contribution to that wind farm would not be appropriate to be applied to this wind farm. 608 As a consequence, although we do not accept that the contribution in the Minister's conditions is appropriate; neither do we accept that the amount of $75,000 per annum proposed by the proponent is acceptable. 609 Instead, given that this decision also provides a range of choices for the proponent as to whether it wishes to delete turbines or acquire properties, we consider it appropriate to adopt the per turbine rate derived from the Cullerin Range wind farm (of $1,666 per turbine per annum) and not express the contribution as an aggregated sum. We do this because the amount of the contribution will, in the final analysis, depend on the number of turbines to be developed by the proponent in light of this decision and its choices arising from it. As a consequence, this element of the condition is to be rewritten to reflect this decision. 610 We now turn to consider the nature of the scheme to which the contribution is to be applied. Mr Pickles made a number of criticisms of the council's scheme, the first being that the costing of the works for each of the proposed projects was imprecise (as was conceded by Mr Mowle, in the course of his oral evidence). A second criticism he made was that there was no particular link for many of the projects on the council's list of possible application of the funds to the portion of the council's area where this wind farm is to be located. 611 To these criticisms is to be added, in our view, the fact that, as is evident from the property tenure maps, a significant number of the properties, earlier described as being to the east and south-east of the more southern portion of the southern half of this wind farm are not located within the council's boundaries but are located in the neighbouring local government area of Goulburn Mulwaree Shire. As a consequence, we are of the view that there would be, if we were to adopt the totality of the council's scheme as the recipient of these funds, limited benefit to those affected properties. 612 On the other hand, there are attractions and limitations to the proponent's proposal. First, the proponent's proposal is both symbolically and practically linked to the renewable energy - the social desirability of which we have earlier discussed, briefly, and was discussed, as earlier noted, extensively by Preston CJ in Taralga. Second, the proponent's scheme is, in its renewable energy aspect, not limited to the boundaries of the council's local government area but encompasses all residences question from non-associated properties within 10 km of a turbine of this wind farm. 613 Such a proposal remedies the inequity effect that would arise if the council's scheme were to be adopted as the full position. 614 Finally, the proponent's scheme recognises that there might be a limited taking up of its scheme - a possibility, perhaps, more likely given the rate of contribution we have determined may result in a total contribution nearly double that anticipated by the proponent when crafting their own proposal - and addresses that by providing that any on taken up portion in any 12 month period would default to a contribution to the council's scheme. 615 As a consequence, as we consider the defects in the proponent's scheme can be secured, as discussed below, we consider that the proponent's scheme is preferable subject to the changes described below. 616 On the other hand, the proponent's proposal also requires not insignificant contributions from households that might wish to participate. Given the wide range of financial circumstances that were put to us during the course of hearing the objector evidence, we are concerned that the requirement for any contribution by a householder would be potentially discriminatory and, indeed, would have the potential to make it significantly less likely that those households in the socio-economic demographic that would most benefit from such energy efficiency installations would be those least able to take up that option. 617 As a consequence, particularly in light of the fact that the increased contribution levels we have determined will make it more likely that there will be the ability to enrol more households than previously anticipated (even if there is no financial contribution required from that household), such contributions are not to be a part of the scheme. 618 The second element of the proponent's proposal that concerns us is it makes the provision of these alternative energy installations subject to uncertainty, in some fashion, by making it conditional on the extent of government subsidies or rebates available for this purpose. The social desirability (as well as the environmental desirability) of these installations should not be subject to such a linkage. As a consequence, the proponent's scheme, to ensure certainty for the local community, should also have this aspect removed. Again, because of the fact that there is likely to be significantly more money available for the scheme than would be provided under the proponent's funding regime, we would not expect this uncoupling from government subsidy levels to make any significant difference to take up rates. 619 As a consequence of all the foregoing, the outline of a modified proponent proposal scheme can be derived from this decision (and reflected in the conditions) but we would expect that the final details of the scheme, including a process for calling of applications, assessment and prioritisation for access to funding from the scheme (if there were more applications in any year than there were funds available to support them) needs to be developed and approved by the Director-General. Such details of the scheme should include a basis for participation by the local community and by the council in the selection and prioritisation process and the conditions of consent are to reflect that this is to be a requirement of the scheme.

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627 The Director-General's assessment report includes a footnote noting that the five lots mentioned in the second sentence are Lots 6, 7, 8, 9 and 10 in the King's subdivision. There is no detailed assessment for each of these lots nor is there any explanation of how the five lots in this sentence become the eight lots identified in the second paragraph - an expansion that led to Lots 5, 11 and 12 being incorporated in the acquisition conditions. It is, therefore, necessary for us to conduct, as best we are able on the evidence available to us, an assessment of the impacts of the wind farm on each of these eight allotments and reach a conclusion as to whether or not any or all of them should remain subject to a requirement for acquisition by the proponent. 628 We have not considered any submission that may have been made by the Kings because it is obvious from the Director-General's assessment report and the briefing note to the Minister that the individual submissions were not provided to her and did not, therefore, form part of her decision-making process. 629 In the alternative, the Kings propose alternative conditions with a more complex timeframe for compliance. For reasons discussed in the following portion of the judgment, we do not set them out in full. 630 The Guardians have adopted the Kings' proposed acquisition regime for general application. 631 The limit that the Minister has imposed on the validity of the approval is in the following terms: This approval shall lapse five years after the date on which it is granted unless the Proponent has confirmed to the satisfaction of the Director-General that orders have been placed for wind turbines, or demonstrated that work subject of this approval has been completed on the site before that time. 632 We have concluded that: o it is desirable that there be a single acquisition condition applying to all properties that are contained in the acquisition schedule although, as later discussed, the proponent is to be given a choice between acquisition or deletion of the unacceptably impacting turbines; o although the Kings' acquisition conditions were adopted by the Guardians as an alternative to the Minister's condition, we consider that the Kings' conditions themselves, if applied generally, would also fall foul of what we regard to be the significant structural defect of the Minister's acquisition condition - that is the potential open-ended nature of the time period for which such a condition might run; o the Minister's condition is one which leaves, when considered in conjunction with the lapsing condition for the consent, far too much of the burden of uncertainty as to acquisition for landholders whose properties, in whole or in part, fall within the acquisition clause.

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645 The final form of this condition is to be settled between the parties with recourse to us if there are drafting disputes making this necessary. We do note that we consider that the conclusions we have reached are sufficiently precise (thus restricting the parties' discussions to the terms of language rather than outcome to be achieved) so that this determination is not one of the nature discussed by Biscoe J in RES Southern Cross Pty Ltd v Minister for Planning and Anor [2008] NSWLEC 332; (2008) 166 LGERA 116 - indeed, we have expressly endeavoured to take it outside the scope of any imprecision of this nature. Conclusions 646 The summary at the commencement of this judgement sets out, briefly, the outcome of the matters that we have needed to consider. These conclusions are intended to be a modest expansion of that so that those who wish to understand the outcomes can do so without being required to digest the totality of what is, in a merit appeal in this Court, an unusually lengthy judgment. 647 First, we have considered the various issues that were raised about the methodology and outcomes of the noise assessment and we have concluded that there is no basis upon which we could require changes nor was there any inadequacy of any material nature in the original assessment process. However, as the experts agreed on some changes to the conditions of consent, we are satisfied that it is appropriate to incorporate their agreed conditions in the conditions of consent. 648 With respect to construction impact issues along the Crown road in the vicinity of Gurrundah Creek, we have concluded that there is no Aboriginal cultural issue requiring our intervention. However, we have concluded that additional conditions are necessary to respond to the possibility of contamination in the vicinity of the former sheep dip site. We have also concluded that, on the uncontradicted evidence of Mr Phillip Price and his observation of platypuses in this vicinity, a precautionary approach should be adopted and further investigation undertaken to ensure that the Director-General is satisfied that appropriate steps are taken to protect the platypuses if this is necessary. 649 With respect to the visual impact of the proposed wind farm on the public domain, we have concluded that there are no individual viewing points from the public domain that would require any modification to let alone refusal of the proposal. In addition, for the reasons outlined, we are satisfied that there is no cumulative visual impact, even for a person driving from one end of the wind farm to the other, that would warrant modification to or refusal of the wind farm. There are no shadow flicker or unacceptable noise impacts on the public domain. 650 As part of the public domain visual impact assessment, we have also concluded that, if aviation hazard warning lights are required in future, that is not a factor that would alter our conclusion concerning the acceptability of the proposal when viewed from the public domain. However, the possibility of a requirement for the installation of aviation hazard warning lights is a matter that is relevant for consideration for a number of the individual landholdings where the existing dwellings or possible future dwellings would be closer than 2 km to turbines that would be so lit. 651 Near the commencement of this decision [at (47)], we noted that there was at least one significant difference from the circumstances with which Preston CJ was faced in Taralga. We noted, inter alia, that, in the Taralga wind farm proceedings, rural residences, on non-associated properties, were comparatively sparse and spread out and, because of the Cockbundoon Range to the east of the proposed Taralga wind farm, there were very few residences on rural properties to the east of the most easterly line of turbines of that proposed wind farm. As a consequence, the number of properties or individual allotments requiring assessment was small. Here, we have had to undertake over 40 separate assessments of properties or individual allotments - most of which are closer to proposed turbines than virtually all (but not all) the non-associated properties that required individual assessments in Taralga. 652 These properties have comprised the various landholdings nominated by the Guardians (some of which had more than one dwelling or dwelling entitlement) and the Kings' landholding that is the subject of separate proceedings. In addition, we have also included in this individual property assessment a further small landholding, that where dwelling B33 is located, in the south-eastern area of the northern section of the proposed wind farm. 653 As a consequence of the hearings, the proponent agreed that it was prepared to offer to acquire two parcels of land. Those comprised in the Daniel Hewitt landholding and Lot 5 of the Christie subdivision (although this later agreement is not appropriate to be reflected in the acquisition schedule based on our merit findings). With respect to the Kings' landholding, the proponent agreed that it should acquire Lots 6, 7 and 8 but resisted any requirement that it should acquire any other allotments in this subdivision. 654 We have concluded that not all the Kings' subdivision allotments that the Minister had included in her acquisition condition warrant such a requirement. However, we have also concluded that the acquisition of Kings' subdivision allotments proposed by the proponent is inadequate. We have also concluded that unacceptable impacts warrant inclusion of seven other landholdings or allotments with dwelling entitlements in the schedule of properties in an acquisition condition. 655 Because we had no evidence about the consequence for the proposal if any individual turbines were required to be removed, we have concluded that the acquisition process should be structured so that the proponent can elect whether to acquire any or all of the unacceptably impacted properties or delete any or all of the relevant impacting turbines. Because of the number of additional acquisitions we consider are warranted, we propose that this alternative acquisition or turbine deletion regime should apply to all the landholdings we have identified as being subject to unacceptable impact of including those four parcels - Daniel Hewitt, and Kings' Lots 6, 7 and 8 accepted by the proponent as being appropriate for acquisition (as such inclusion is also supported by our merit assessments). More generally with respect to the Kings' landholding, we have concluded, for the reasons earlier outlined, that the allotments to be included in the acquisition schedule should be Lots 6 to 11 rather than the more limited number accepted by the proponent. 656 With respect to the issue of compensation for loss of land value or "blight", we have respectfully adopted the position taken by Preston CJ in Taralga that there is no lawful basis for requiring such compensation. We have also concluded that expectation of subdivisibility is, like any other development process, subject to constraints that arise from the nature of other approved development in the vicinity of any proposal. 657 Theoretical subdivisions, as opposed to approved subdivisions that have already undergone the planning approval process, may well be limited by the proposed wind farm, if constructed, but that is a development constraint that will arise from a lawfully approved development on an adjacent property. In this regard, there is no relevant difference between constraints arising from the wind farm compared to those that would arise from the necessity to protect endangered ecological communities or riparian corridors or sensitive landscapes (in a rural context) or heritage buildings or protection of solar access or acoustic and visual privacy of neighbouring properties (in an urban development context). 658 We have, therefore, concluded that no modification to or refusal of the proposed wind farm would be appropriate because of loss of subdivision potential (although we do accept that, in a number of instances, such subdivision potential is likely to be impacted). Similarly, for the reasons outlined in summary above, issues of compensation do not arise for legal reasons as well as on the merits concerning this topic.

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660 In addition, the property acquisition clause is to be structured so that if the proponent initiates the acquisition process but the property owner either indicates, expressly, that acquisition is not required or fails to indicate, within the nominated period then the requirement to acquire that property or delete the turbines impacting on that property will lapse. If any acquisition is not commenced within four years of the date of the Minister's consent, a self-executing condition is to delete the relevant unacceptably impacting turbines. 661 We have rejected, for two reasons, giving any weight to the council's DCP and the numerical prescriptions in it. First, there is no statutory requirement for us to do so. Second, although it would be possible to have regard to the document as part of the broad public interest, the evidence given concerning the adoption of the numerical limits was exposed as being inaccurate and without foundation. The numerical limits in the DCP could, therefore, only be considered to be arbitrary and certainly could not be considered as being satisfactorily derived in the fashions for either a DCP or a council policy discussed by McClellan CJ in Stockland Development v Manly. 662 We have rejected two additional conditions proposed by the Kings - those seeking to impose a buffer utilising any land acquired from them by the proponent and a proposal for covenants preventing future intensive animal husbandry activities of any sort on any part of the Kings' land acquired by the proponent. 663 We have determined that changes should be made to the landscaping condition to align it, generally, to the approach to this issue taken by Preston CJ in Taralga. Although this does not precisely reflect the changed landscaping clauses proposed by the Kings, our approach is responsive to some elements they suggested. 664 Finally, with respect to the community compensation scheme, we have concluded that there is no rational basis upon which visual or any other impacts and hence compensation, can be linked to the generating capacity of a turbine. As a consequence, we reject the formula proposed by the council and adopted by the Minister. Adopting what appeared to be an arbitrary figure, as the proponent did for the Cullerin Range wind farm, is an equally unacceptable approach. However, we are prepared to accept that the proponent, in reaching its conclusion about what might be an appropriate compensation amount for the Cullerin Range wind farm should be assumed to have had some regard to the number of turbines were proposed for that wind farm. 665 We have, therefore, adopted the relevant per turbine per annum amount that is derived from the Cullerin Range wind farm as being appropriate for this wind farm. That will result in a significant increase in the size of the fund compared to that suggested by the proponent but not to the extent required by the present conditions. We have preferred, in general terms, the proponent's model for application of the funds in this scheme (where benefits can go directly to affected households and in a fashion sympathetic with and supportive of renewable energy with any unexpended monies in any year to be applied to the council's own fund). However, we have concluded that the proponent's elements that involve attraction of or reliance on accessing government subsidies or which require co-contributions from beneficiaries are inappropriate and should be deleted. Directions 666 As the conclusions we have reached require changes to the Minister's conditions, we have considered how the three proceedings should be determined. It seems to us that each of the three appeals requires to be upheld, to some extent, at least. However, there is utility, in our view, in each appeal having common orders - namely that: 1. The appeal is upheld; 2. The conditions in Schedule 2 to the project approval by the Minister for Planning dated 26 June 2009 for Application No: 07_0118 are modified so that the project is now subject to the conditions in Annexure A; and 3. The exhibits are returned. 667 To permit this to occur (and to permit the parties to propose alternative orders if so desired), the matter is set down for further hearing on the wording (but not the substance) of the conditions at 9 am on Thursday 27 May - if required. In the meantime, the Minister's representatives are to draft conditions to reflect the terms of this decision and discuss them with the other parties. If no party wishes to propose alternative orders and agreed conditions are filed, in hard copy and electronically by e-mail to the Court marked to our attention, by the close of business on Tuesday 25 May, we will make orders in chambers and vacate the mention.