Would there be other potential impacts upon nearby dwellings?

1. Shadow flicker is caused by shadow cast by rotating wind generator blades in bright/sunny conditions.
2. Flicker frequency derives from the rate of rotation and the number of blades. The time at which it will occur will be related to the latitude of the sun and position of the turbine relative to a receiving point. The evaluation criterion set by the Policy Guidelines is that shadow flicker experienced by any dwelling "must not exceed 30 hours per year as a result of the operation of the wind energy facility". We recognise that the Policy Guidelines only deal with shadow flicker at dwellings although impacts would be experienced on other parts of a property.
3. Mr Wild submitted that the shadow flicker calculations are invalid if the turbines move with micro-siting. He also criticised the omission of the Perry house and degree of impact on dwelling #5 through a gap in roadside vegetation.
4. The Garrad Hassan[52] analysis shows shadow flicker would be experienced by dwellings to the west of the review site, notably dwellings #8 and #9 as well as #5. The Perry residence may also be affected if there was no surrounding vegetation. Dwelling #4 is also close to the modelled area of shadow flicker. Of those dwellings, #5 would experience the greatest impact but, taking into account cloud cover and vegetation, the Guideline's standard of 30 hours should not be exceeded.

1. Mr Wild suggested such interference is "distinctly possible" and the Council's conditions do not properly deal with such potential. The Policy Guidelines adopt the following evaluation criterion - "The siting of wind turbines in the 'line of sight' between transmitters and receivers should be avoided". A report by Garrad Hassan[53] indicated that there are no point to point transmission paths across the review site. We also note the six options for rectification cited in that assessment.
2. This matter can be addressed by a condition requiring a pre-construction survey and post-construction survey on request by a neighbour, also obliging the permit holder to mitigate demonstrated detrimental impacts. The Respondent does not oppose such a condition in principle.

1. Mr Wild raised concerns that lighting of the facility, particularly the turbines, would impact upon amenity, be an invasive nuisance and possibly increase avifauna strikes due to insectivore species hunting insects attracted by the lights. We drew from Mr Wild's submission that the concerns are in respect of floodlighting although there was also some reference to lighting for aviation hazard warning purposes.
2. The latter normally involves a red light of low illumination atop of the highest structure. We deal with this aspect of the Applicant's case below. We also accept the Respondent's position that no floodlighting or other form of highlighting of the turbine towers are proposed. Permit conditions can ensure that it is the case.

Would the proposal adversely impact upon road safety?

1. The Applicant referred to the bend along the Ballan-Daylesford Road and expressed their concerns that the turbines would be distracting to drivers, including via shadow flicker and blade shine. We understand this concern but are not persuaded that any distraction, to the extent it might occur, should cause the permit application to fail. In reaching that conclusion, we give weight to our experience of driving along the nearby roads and the extent to which roadside vegetation creates shadow flicker and would mask views to the turbines. Moreover, we give weight to the fact that VicRoads has reviewed the proposal and offered no objection.

1. The Applicant raised concerns that the turbines may create an aircraft hazard given private helicopter and aircraft operating in the area.
2. We agree with the concerns insofar as it is the Tribunal's experience that this area can be used by aircraft in poor weather conditions. The Civil Aviation Safety Authority does not require aviation hazard lighting for turbines or other structures of the height proposed in this case (ie. less than 110 metres). However, we note that if such hazard lighting were to occur it would likely take the form of a red light on the turbine nacelle. A small light on each of the nacelles would be far less problematic than floodlighting. We will leave this matter to the discretion of CASA. A tall structure report can be required by a permit condition although such a report is required by Commonwealth legislation.

1. Lastly, a range of other matters were raised in submissions by the Applicant upon which we summarise our findings below.

1. Reference was made to the extent to which the proposal has divided and torn the Leonards Hill and wider community. Some referred to their inability to remain in the area should the proposal proceed.
2. Section 60(1)(b) of the Planning and Environment Act 1987 provides that before deciding on an application the Responsible Authority (and therefore this Tribunal on review) "if the circumstances appear to so require, may consider any significant social and economic effects of the use or development for which the application is made". We have considered the concerns raised by the Applicants in the context of that section and do not consider the proposal must fail for this reason. Some of the angst may derive from a fear of the unknown and we hope in time that some rebuilding of relationships may occur.

1. We note concerns raised by the Applicants in terms of impacts upon those with, for example, epilepsy, stress and insomnia. There is no evidence of health impacts that persuades us that rejection of the permit application is warranted given the proposal's compliance with the applicable standards. We do not accept submissions that human rights are being infringed.

1. Concerns were raised by the Applicant that the proposal may interrupt spring water flows (a water supply relied upon by a number of residents) and groundwater resources (referred to variously as underground watercourses). Mr Wild submitted that chemicals may be used to coat underground cables and potentially contaminate the water supply such as through rust. Similar concerns were expressed in respect of possible leaching from concrete pads. Further, reference was made to blasting for foundations, causing vibration and other unknown impacts. Mr Wild criticised the lack of a hydrological assessment.
2. Mineral springs are significant to the region as recognised through the Planning Scheme, but there is no reason to conclude that the proposal would jeopardise the quantity or quality of that important resource. No blasting is required in the construction process, as confirmed by Mr Townsend at the hearing.
3. The form of foundations and underground cabling are well known and not recognised as sources of groundwater contamination at other places.
4. We find the concerns raised by the Applicant are largely speculative and without evidentiary support of any kind. We find no reason to require a hydrological assessment or to conclude that ground/spring water would be adversely affected by the proposal.

1. Mr Wild expressed concern about a desktop geotechnical assessment that he contended was inadequate to address soil stability concerns.
2. The assessment[54] is a short report that the anticipated soil and sub-soil conditions should not create any particular difficulties. We consider the suggestion in the assessment of subgrade improvement is acceptable. We find there to be no issues arising at this planning stage, mindful that detailed geotechnical investigations would be undertaken in a design phase.

1. Residents questioned the proximity of a gas pipeline to the turbines. An easement for a gas pipeline is shown on the title. It appears to be well to the east of the sites for the proposed turbines. This is a matter that can be confirmed through a permit condition to ensure that any works associated with the proposed turbines do not negatively impact the pipeline.

Decommissioning processes and other responsibilities

1. Ms Elsworth raised a number of issues relating to the legal entity responsible for the proposal, landlord and lessee responsibilities, public liability, rent and other matters. She was critical of the lack of transparency in contractual obligations between the prospective landlord and operator. Ms Elsworth also suggested various Section 173 agreements should be required to recognise leases, make good obligations imposed on a tenant, and to provide for reporting requirements plus other obligations. A lack of information such as a prospectus for potential investors was a further criticism raised by Ms Elsworth.
2. We are not persuaded that the details of a lease between a permit holder and landlord have any relevance to our decision or are appropriate conditions for a planning permit. In the context of this case, contractual and liability issues are between the parties involved and not planning considerations. Similarly, matters relating to a prospectus are well outside the scope of this proceeding and the matters we are required to consider under the Scheme and the provisions of the Planning and Environment Act 1987.

1. Ms Elsworth and a number of other parties referred to the absence of the Moorabool Shire Council in the current proceedings.
2. At the hearing, Mr Wild mentioned several times that the Council's planning manager might attend the hearing to supplement the Applicant's submissions but that did not occur. We did not explore whether that was in a personal capacity or as a representative of the Council.
3. It is evident, however, that the Moorabool Shire is aware of the permit application. For reasons that we have not investigated, the Council has not elected to become a party to this proceeding. We do not accept Ms Elsworth's submission that the Moorabool Shire's absence from the proceedings denies natural justice to those property owners whose land is within that Shire. We also did not accede to Ms Elsworth's request that the hearing be adjourned until the Shire could be present.

1. Mr Ryan felt that blade flicker would affect his cattle. We appreciate apprehensions about adverse affects on animal behaviour and production. However, there is no evidence to support this contention and we find nothing in panel reports indicating problems emerging in other locations.[55]

1. Mrs M Frost raised a concern that the area is prone to lightning strikes. We have no further information in relation to this submission but it may be linked to Mrs Perry's submission about difficulties accessing the turbines if they caught on fire. Mrs Perry cited a situation of a turbine catching alight in South Australia. We note these issues but again find no reason to refuse a permit application on these grounds. In so doing, we give weight to the lack of objection by the Country Fire Authority to the proposal. [56]

1. Even though the wind turbines might generate some interest, there is no proposal for viewing platforms or information/display boards. We do not consider any specific measures are required to address tourist interest at this time. If the wind farm was to become a tourist destination, necessary arrangements for parking and any related facilities would be addressed through the Council and/or VicRoads.

1. Mr Wild submitted consent was not obtained from local Aboriginal communities in relation to the proposal. In response, Mr Kaskadanis' evidence set out the involvement by the Wurundjeri people in the sub-surface testing. A letter was tendered indicating the support of the Wurundjeri Tribe Land & Compensation Cultural Heritage Council Inc. to this effect. We note the Council requested a representative(s) of the Wurundjeri Council participate in testing, which we were advised occurred.
2. Mr Kaskadanis also explained that the Dja Dja Wrung people were notified of the application. The Dja Dja Wrung are native title claimants. Mr Kaskadanis' evidence was that consent was not obliged from the Dja Dja Wrung people, evidence with which we agree based on our understanding of the Native Title Act 1993.[57]
3. We are satisfied that the necessary statutory obligations have been met based on Mr Kaskadanis's evidence. It is appropriate, however, to ensure that all statutory obligations have been satisfied in terms of any formal consents. That can be dealt with by permit conditions, similar to those applied in other wind farm permits, having regard to the legislation that applies to this permit application.

1. We were advised that the Leonards Hill community felt there had been insufficient consultation with them and their views had not been heard. In response, Mr Townsend referred to steps undertaken by the Association to consult with the community. Mr Cleary also gave evidence in this regard.
2. We appreciate that those involved with this Application have not received the answer they sought in relation to the permit application. That does not mean that their concerns were not heard or taken into account. We have fully considered all submissions in reaching our decision in this proceeding.

1. The potential for the proposal to devalue surrounding properties was contended by the Applicant. It is a well established planning principle that depreciation of land values as a result of a proposed development is not a relevant ground by which to refuse a proposal. That is, property value is not, in itself, a planning consideration. But amenity is relevant. If values are affected by adverse amenity impacts, then it is the amenity questions that must be considered, not their ramifications in terms of property values. We have addressed potential amenity impacts previously in these reasons.

1. The Council's decision to grant a permit proposed 12 permit conditions. It was apparent to us on reading them that some of conditions were based on other permits issued for wind farms. It also became apparent to us during the course of the hearing that if a decision was eventually made for a permit to be granted, the conditions sought by the Council would not be adequate.
2. We elected to provide the parties with a draft set of conditions, modelled on other wind farm permits, with the aim of some consistency with similar developments including permit holder responsibilities. We invited written responses to the "without prejudice" conditions.
3. Since reviewing all of the material presented to us, we have decided to grant a permit. Thus, we have considered all comments on conditions filed by the Council, Mr Wild/Ms Elsworth and Mr Townsend/Mr Shapero. Our final conditions are appended to these reasons, having been modified from the draft. The following require our explanation:
   • We accept some comments that the proposal before us is for a small wind farm and therefore some draft conditions may be too onerous.
   • Micro-siting. We are not persuaded that this should necessarily always be a routine provision, but we are satisfied that micro-siting would be acceptable in this case if turbines come no closer to any existing dwelling. We do not accept flexibility to move turbines up to 100 metres closer to houses (but no less than 500 metres) in the specific circumstances of this case. That reflects our findings in relation to visual and acoustic issues where we have been mindful that an ability to position turbines closer to dwellings could increase visibility and noise emissions. Moreover, all assessments have been undertaken based on turbine locations identified in the Marshall Day Acoustics report dated 10 October 2006. Our condition gives flexibility to re-site the turbines away from dwellings and that is generally eastwards but the location must be confirmed through amending plans. We have not accepted suggestions by the Applicant that a minimum of 800 metres be adopted as a distance from any dwellings.
   • Turbine selection. All assessments have been undertaken on the basis of the Repower MM82 2MW turbine. Our suggestion that any alternative model sought to be used should have the same or a lower power sound pressure level output was said by the proponent to be unnecessary and unworkable. We accept this submission insofar as we will require use of Repower MM82 2MW or another model that is to be satisfaction of the Responsible Authority. It would be open to the Council to seek further information about any alternative model including confirmation that noise emissions can comply with NZS6808. A required noise commissioning report is also relevant to our conclusion on this point. We have not accepted suggestions by the Applicant that double glazing be provided to existing dwellings.
   • Further assessments/plans. We have included conditions relevant to our findings, notably further survey works for bats, but have not been persuaded to include a series of additional assessments suggested by the Applicant, such as a baseline environmental audit, assessment of spring water quality and electrical generation, or a hazardous substances and hydrocarbon plan.
   • Environmental Management Plan. This was not provided for in the Council's conditions. It was sought by DSE and is intended to be undertaken by the Respondent. We will require such a plan.
   • Landscaping. We will provide for planting on the review site to provide visual screening particularly for dwellings #2, 3, 11, 12 and 19 - we think this can be effective despite the time required for trees to mature. Fast-growing natives can be used. We will also accept the Respondent's suggestion to plant on private properties should owners so request. We have not accepted the Applicant's proposal that screen planting designed by a landscape architect be made available for properties within 1.5km of the review site for reasons that will be apparent from the conclusion of our assessment. We have not accepted the Respondent's proposed "voluntary" landscape mitigation works as we require planting to be undertaken on the review site.
   • Section 173 agreement. We have not considered it necessary to require such an agreement relating to lease arrangements, decommissioning and related matters suggested by the Applicant. Nor do we consider compensation conditions are a matter for a permit.
   • Decommissioning. We do not accept Mr Wild's submissions that the facility should be forced to be decommissioned if projected electrical generation targets are not achieved. We also disagree that the facility must be decommissioned if significant avifauna mortality occurs in the form of one bird or bat listed as rare, threatened or endangered or two fatalities of any other species occur over a period of two years.
   • Construction. We do not accept conditions relating to construction proposed by the Applicant, such as a limitation on hours and restrictions on the nature of any chemical use on the land. Such matters are to be managed through a construction management plan at which time any time or other restrictions can be agreed with the Council.
   • Community Reference Group. We have not included this condition requested by the Applicant. The composition of such a group as proposed by the Applicant is too narrow and its proposed role in terms of secondary consents is inappropriate and unlawful. However, we would support ongoing consultation and liaison between the local community and proponent outside the permit process.
   • Community Fund. We will not oblige the Respondent contribute to a community fund as sought by the Applicant - that is for it to decide.
   • Composition of Co-Operative. We will not include conditions relating to the composition of the Co-Op requested by the Applicant, such as that it must be owned by 51% or more of residents of the Hepburn Shire. Our decision in this case has been mindful of the community-based project but that has not been over-riding in our determination.

1. Clause 52.32 has as its purpose to facilitate the establishment and expansion of wind energy facilities, in appropriate locations, with minimal impact on the amenity of the area. The concept of minimal impact must be considered in the context of the scale of a particular proposal, the physical setting within which turbines are proposed, and the directions of the Scheme that decisions about impact must be weighted having regard to policy in support of renewable energy development.
2. For the above reasons that we have set out at length, we are satisfied that the proposal represents an acceptable outcome in terms of the policies and decision guidelines of the Hepburn Planning Scheme. The proposal will bring change to Leonards Hill but the extent to which the proposed turbines would be noisy or visually intrusive satisfies the tests and objectives specified in the Hepburn Planning Scheme. Other objections brought by the Applicant do not warrant rejection of the permit application.
3. We will affirm the Council's decision to direct that a permit be issued for the proposal, but will replace the conditions contained in the Notice of Decision with those appended to these reasons.

1. Before the use and/or development starts three copies of revised plans drawn to scale and dimensioned, must be submitted to and approved by the Responsible Authority. When approved the plans will be endorsed and will then form part of the permit. The plans must be generally in accordance with plans submitted with the permit application but modified to show to the satisfaction of the Responsible Authority:
   • (a) At a scale of 1:100 or 1:200:
     • (i) The exact location of the wind turbines (including dimensions from adjoining property boundaries). No turbine shall be closer to the closest wall of any existing residence based on the measurements contained in the report prepared by Marshall Day Acoustics dated 10 October 2006, Table 1 at page 5.
     • (ii) If the turbines are re-positioned from the locations identified in the report prepared by Marshall Day Acoustics dated 10 October 2006 Table 1 at page 5:
       1. a report must be submitted setting out the results of sub-surface testing by a qualified archaeologist that assesses the cultural heritage and archaeological sensitivity of the revised location of the turbines.
       2. a revised shadow flicker assessment must be submitted.
     • (iii) The location, layout and dimensions of all buildings and works, including (but not limited to) the grid connection monitoring and control booth, site office, hard stand areas, footing pads, all roads, tracks, underground cabling, car parking areas, construction lay-down areas and landscaping areas (including landscaping required by this permit).
     • (iv) The detailed design of the wind generators (inclusive of nacelles, blades and foundations) including dimensions and elevations.
     • (v) A detailed schedule of materials, colours and finishes of the wind generators (inclusive of nacelles, blades and foundations) based on the description set out in the planning report accompanying the permit application including at page 26 of 68 "Reflectivity and Colour" unless an alternative is to the satisfaction of the Responsible Authority;
     • (vi) A detailed schedule of materials, colours and finishes for all other structures, such as the grid connection booth and site office;
     • (vii) The location of services such as powerlines and gas pipeline;
   • (b) Details of any signage proposed to be displayed as part of the wind energy facility, which must be limited to:
     • (i) one site identification sign not exceeding 2 metres by 2 metres, at the entrance to the site;
     • (ii) a logo or company identification for the wind energy facility operator or wind generator manufacturer displayed on the wind turbines;
     • (iii) necessary signs relating to site safety issues.

1. The use and development as shown on the endorsed plans must not be altered or modified in any way without the written consent of the Responsible Authority.

1. The wind energy facility must be constructed in accordance with the following specifications to the satisfaction of the Responsible Authority:
   • (a) A total of not more than two (2) wind generators in the locations shown on the endorsed plans.
   • (b) Each wind generator must have an overall height of not more than 110 metres.
   • (c) The rotor on each wind generator must comprise no more than three (3) blades.
   • (d) The turbines must be Repower MM82 2MW or another model that is to the satisfaction of the Responsible Authority.
   • (e) The wind generators must not be artificially illuminated at night except for any safety lighting to warn low flying aircraft.
   • (f) No external lighting of infrastructure associated with the wind energy facility, other than low level security lighting where appropriate, may be installed or operated.
   • (g) All new electricity cabling associated with the collector network within the wind energy facility generator cluster must be placed under the ground.
   • (h) Any transformer associated with each wind generator must be located beside each tower and be pad mounted, or be enclosed within the tower structure.
   • (i) The access track(s) within the site must be sited to minimise impacts on existing native trees on the site, and be constructed to the minimum standard practicable in order to ensure minimum impacts on the site, including impacts on overland flows.

1. Before the use or any development starts, a Landscaping and Visual Screening Plan must be submitted to the satisfaction of the Responsible Authority. When approved, the plan will be endorsed by the Responsible Authority. The Landscaping and Visual Screening Plan must include:
   • (a) Visual screening of hard stand areas and the grid control booth from the Ballan - Daylesford Road.
   • (b) Planting along the site's perimeter to provide visual screening to dwellings #2, #3, #11, #12 and #19 (dwelling numbers from Map 5 - Neighbouring Residences in the Proposed Hepburn Community Wind Park Landscape and Visual Assessment Study by J Cleary 2006 at page 41).
   • (c) Details of species proposed to be used for landscaping including details of the height and size of species at maturity.
   • (d) Details of fencing to protect new vegetation from stock impacts.
   • (e) A maintenance program.
   • (f) A timetable for the implementation of landscaping and visual screening works that includes planting being completed prior to any turbine being commissioned.

The use and development must be carried out in accordance with the endorsed Landscaping and Visual Screening Plan to the satisfaction of the Responsible Authority.

1. Before the development starts, a program of landscape mitigation works is to be made available to relevant landowners. As part of that program an Off-site Landscape Plan must be prepared and submitted to the satisfaction of the Responsible Authority. When approved, the plan will be endorsed by the Responsible Authority. The Off-site Landscaping Plan may be submitted in stages to the satisfaction of the Responsible Authority (so that not all stages are completed before the development starts) and must include (but may not be limited to) the following:
   • (a) A provision for landowners within a one kilometre radius of any wind turbine to have the opportunity to accept the offer to provide visual screen planting at any time up until six (6) months after the commissioning of the last wind generator;
   • (b) The process by which landowners within a one kilometre radius of any wind turbine will be informed of this offer and the process by which it can be accepted;
   • (c) Details of planting or other treatments that will be used to reduce the visual impact of the wind turbines at the dwellings of participating landowners;
   • (d) Details of species proposed to be used for the landscaping including details of height and size of species at maturity;
   • (e) A timetable for the implementation of the plan;
   • (f) A maintenance program.

The use and development must be carried out in accordance with the endorsed Off-site Landscape Plan to the satisfaction of the Responsible Authority.

1. Before the development starts, a Traffic Management Plan must be prepared to the satisfaction of the Responsible Authority and VicRoads. When approved, the plan will be endorsed by the Responsible Authority. The plan must include (but is not limited to):
   • (a) Designation of vehicle access point(s).
   • (b) Details on whether the access location point to the proposed development meets the safe intersection sight distance requirements specified in Austroads Guide to Traffic Engineering Practice Part 5 - Intersections at Grade and, if not, details of any mitigating works required to meet the sight distance requirements.
   • (c) Details of any roadside pruning, vegetation removal and vegetation restoration.
   • (d) The designation of appropriate construction and transport vehicle routes to the wind energy facility.
   • (e) A traffic management plan for the Ballan-Daylesford Road during construction of the development including temporary speed signage and times of operation in accordance with VicRoads Roadworks Signing Code of Practice.
   • (f) Details of any works required along the Ballan-Daylesford Road during construction.
   • (g) The requirements for Over Dimensional Load permits and escorting of long or large loads along roads in the area.
   • (h) A timetable for implementation of any preconstruction works identified to be undertaken.

The use and development must be carried out in accordance with the endorsed Traffic Management Plan to the satisfaction of the Responsible Authority and VicRoads and the cost of any works including maintenance is to be at the permit holders expense.

1. Before the development starts, an Environmental Management Plan must be prepared to the satisfaction of the Responsible Authority. When approved, the plan will be endorsed by the Responsible Authority. The Environmental Management Plan must include (but is not limited to):
   • (a) A construction and work site management plan. This plan must include:
     • (i) Procedures for access, noise and pollution management.
     • (ii) The identification of all potential contaminants, hazardous chemicals, liquids and similar materials to be stored on site.
     • (iii) The identification of all construction and operational processes that could potentially lead to water contamination.
     • (iv) The identification of appropriate storage, construction and operational and spill control methods to control any identified contamination risks including any arising from the identification processes in Conditions 7(a)(ii) and (iii).
     • (v) Criteria for the siting of any temporary concrete batching plant associated and procedures for its removal and reinstatement of the site once its use finishes. The establishment and operation of any temporary concrete batching plant must be in accordance with the Environment Protection Authority's Environmental Guidelines for the Concrete Batching Industry, Publication No. 628.
     • (vi) The identification of waste re-use recycling and disposal procedures.
     • (vii) Procedures for the storage of any fuels, lubricants or waste oil to be stored in bunded areas and procedures for managing any spills.
     • (viii) The removal of works buildings and staging area on completion of construction of the project and for the return of the site to its former condition.
   • (b) A wildfire prevention and response plan.
   • (c) A sediment and erosion management plan. This plan must include:
     • (i) Procedures to ensure that silt from batters, cut-off drains, table drains and road works is retained on the work site during and after the construction stage of the project. All land disturbances must be confined to a minimum practical working area and to the vicinity of the identified work areas. Soil to be removed must be stockpiled and separate soil horizons must be retained in separate stockpiles and not mixed. Stockpiles must be located away from drainage lines.
     • (ii) All track construction and maintenance equipment, earth moving equipment and associated machinery, must be made free of soil, seed and plant material before being taken to the works site and again before being removed from the works site on completion of the development.
     • (iii) All road-making and maintenance material such as rock, gravel and sand required for the project must come from an area free of weeds.
     • (iv) The installation of geotextile silt fences (with sedimentation basins where appropriate) on all drainage lines from the site which are likely to receive run-off from disturbed areas.
     • (v) Procedures to contain any contaminated or turbid run-off during and after construction of the wind energy facility.
     • (vi) Procedures to suppress dust arising from construction-related activities. Appropriate measures may include water sprays of roads and stockpiles, stabilising surfaces, temporary screening and/or wind fences, modifying construction activities during periods of heightened winds and revegetating exposed areas as soon as practicable.
     • (vii) Procedures to ensure that steep batters are treated in accordance with Environmental Protection Authority recommendations detailed in the 'Construction Techniques for Sediment Pollution Control' No 275, May 1991.
     • (viii) Procedures for waste water and discharge management to prevent adverse off-site impacts.

The use and development must be carried out in accordance with the endorsed Environmental Management Plan to the satisfaction of the Responsible Authority.

1. Prior to the development commencing, a bird and bat management plan must be prepared to the satisfaction of the Responsible Authority. When approved, the plan will be endorsed by the Responsible Authority. The bird and bat management plan must include (but is not limited to):
   • (a) A pre-construction monitoring program to monitor the presence and behaviour of bats on the site. The monitoring program is to be carried out by an independent fauna consultant. The program must specify that the following data be recorded and include provision for reporting of the data to the satisfaction of the Responsible Authority:
     • (i) The frequency and height of bat movements across the site;
     • (ii) Seasonal changes in bat movements;
     • (iii) The species involved and whether the species is identified as significant or threatened under the Environment Protection and Biodiversity Conservation Act (1999) or the Flora and Fauna Guarantee Act (1988); and
   • (b) A strategy for managing and mitigating bird and bat strike arising from the wind energy facility operation. The strategy must include:
     • (i) The areas required to be inspected.
     • (ii) The frequency of monitoring and inspections.
     • (iii) Scavenger management, for example, regular removal of carcasses likely to attract raptors to areas near generators and other measures to routinely control bird feed and prey.
     • (iv) Recording and reporting requirements to the Responsible Authority.
   • (c) A procedure for addressing any significant impacts on bird and bat populations under the Environment Protection and Biodiversity Conservation Act (1999) or the Flora and Fauna Guarantee Act (1988) caused by the wind energy facility operation. This procedure must provide that the operator of the wind energy facility immediately investigates the possible causes of any significant impacts on bird and bat populations, and thereafter must design and implement measures to mitigate those impacts in consultation with the Responsible Authority.

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

1. Prior to the development commencing, a management plan addressing heritage protection must be prepared to the satisfaction of the Responsible Authority. When approved, the plan will be endorsed by the Responsible Authority. The heritage protection management plan must include (but is not limited to):
   • (a) A qualified archaeologist must be on-site during initial excavation works to identify any archaeological artefacts, and initiate measures for interim protection and reporting of any such objects or sites.
   • (b) Protocols for the control of construction activities, including the activities by contractors, that have been identified to have potential effects on sites of cultural significance.
   • (c) Protocols for ongoing consultation with the relevant Aboriginal communities throughout the project, especially those relating to relating to the detailed on-surface and sub-surface archaeological investigations, including maintaining confidentiality (where considered appropriate) of the locations of Aboriginal archaeological sites.
   • (d) Prior to disturbing any identified archaeological site, place or object, procedures for seeking and obtaining written consent of any identified Aboriginal local aboriginal community, as nominated for the purposes of Part 11A of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Commonwealth).
   • (e) Procedures providing appropriate workshops and training courses with contractors to protect all known sites of Aboriginal cultural heritage value.
   • (f) Protocols for protecting and reporting the discovery of any human remains in accordance with the requirements of the Victoria Police, the State Coroners Office and Aboriginal Affairs Victoria.

The use and development must be carried out in accordance with the endorsed Heritage Protection Management Plan to the satisfaction of the Responsible Authority.

1. The operation of the wind energy facility must comply with the New Zealand Standard 'Acoustics - The Assessment and Measurement of Sound from Wind Turbine Generators' (NZ 6806:1998) (the 'New Zealand Standard'), in relation to any dwelling existing at the date of approval of this permit, to the satisfaction of the Responsible Authority.
2. Within two months of the commencement of operation of any turbine(s), an independent post-construction noise monitoring program must be undertaken by the proponent to the satisfaction of the Responsible Authority in accordance with the New Zealand Standard. The program must monitor noise levels at any dwelling within a one kilometre radius of any wind turbine that is not in the same ownership as the subject land.

A report summarising the results of the program, and the data collected, must be forwarded to the Responsible Authority within 30 days of the end of the monitoring period. The results must be written in plain English and formatted for reading by lay people.

Recommendations to address any non-compliance with NZS6808 must be included in the report and, on agreement by the Responsible Authority, measures to address non-compliance must be immediately implemented to the satisfaction of the Responsible Authority.

1. Before the use commences, details of a noise complaint and evaluation process must be submitted to and approved by the Responsible Authority. This evaluation process should include, but not be limited to the following components:
   • (a) Details of validity requirements for noise complaints (that is, date, time, noise description and weather conditions at the receptor).
   • (b) Response protocol to valid noise complaints.
   • (c) A register of complaints, responses and rectifications which may be inspected by the Responsible Authority.
   • (d) Provision for review of the complaint and evaluation process, including review of the process 12 months after commencement of the operation of the wind energy facility.

The use and development must be carried out in accordance with the endorsed process to the satisfaction of the Responsible Authority.

1. The operator of the wind energy facility must ensure that no existing dwelling will experience over 30 hours blade shadow flicker per annum or undue blade glint to the satisfaction of the Responsible Authority.

1. Prior to the commencement of the development, a pre-construction qualitative survey of television and radio reception must be offered in writing to the owners and occupiers of all dwellings within a one kilometre radius of the approved turbines.
2. A pre-construction survey of television and radio reception must be undertaken at any premises where the offer for such a survey has been accepted, to the satisfaction of the Responsible Authority.
3. If any written complaint is received by the operator or the Responsible Authority as to interference with television or radio reception at residences within a one kilometre radius of the approved turbines who accepted a pre-construction survey, and a request is made for a post-construction survey to be undertaken, the operator of the wind energy facility must undertake a post-construction qualitative survey within three months of a request to do so. If the qualitative survey establishes any detrimental increase in interference to reception, measures must be taken to mitigate the interference to return the affected reception to pre-construction quality at the cost of the wind energy facility operator and to the satisfaction of the Responsible Authority.

1. The wind energy facility operator must, within one month, notify the Responsible Authority in writing as soon as all wind energy facility generators have permanently ceased to generate electricity. Within 12 months of that date, the wind energy facility operator must undertake the following to the satisfaction of the Responsible Authority:
   • (a) remove all non-operational or downed equipment, structures and buildings;
   • (b) remove and clean up any residual spills;
   • (c) clean up and restore all storage, construction and other areas associated with the use, development and decommissioning of the wind energy facility;
   • (d) restore all access roads and any other area affected by the project closure or decommissioning, if not otherwise useful to the on-going management of the land;
   • (e) submit a post-decommissioning traffic management plan to the Responsible Authority and, when approved by the Responsible Authority, implement that plan; and
   • (f) submit a post-decommissioning revegetation management plan to the Responsible Authority and, when approved by the Responsible Authority, implement that plan.

1. Following the endorsement of plans under Condition 1 of this Permit, and prior to the erection of any turbine, the operator must meet any requirements of the Civil Aviation Safety Authority including in relation to the reporting of tall structures under the requirements of the Civil Aviation Regulations 1988.

1. This permit will expire if one of the following circumstances applies:
   • (a) The development and use is/are not started within four (4) years of the date of this permit.
   • (b) The development is not completed within two (2) years of the date of the commencement of the works.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

[1] We joined Ms Emma Elsworth as a party to the joint application for review without objection by any party.

[2] Map 5 in the Landscape and Visual Assessment Study by J Cleary. This cites houses #1-18 but omits a number 15. Dwellings #6 and 7 are in the same ownership as the review site and are 509 metres and 525 metres from the closest turbine based on Table 1 of the Marshall Day Acoustic report dated 10 October 2006 at page 5. Another dwelling has also been omitted from a group of four that exist on the west side of the Ballan-Daylesford Road more than 1.5km from the closest turbine. We also observed on our visit an older timber (farm?) dwelling north of dwelling #3 that appears to have been omitted from all material and not mentioned in submissions. It may not be occupied. It has extensive vegetation surrounding it. It would be more than 600 metres from the closest turbine. House #18 is undergoing extensive works.

[3] Based on Table 1 of the Marshall Day Acoustic report dated 10 October 2006 at page 5.

[5] Landscape and Visual Assessment Study by J Cleary.

[6] This has been located on site since August 2006.

[7] As stated in the material accompanying the planning permit application - planning report at page 42 of 68.

[8] For example, acoustic, fauna, archaeological and geotechnical assessments.

[9] The Tribunal has considered the provisions of Clause 35.07 in addition to Clauses 11, 12, 14, 15.01, 15.05, 15.09, 15.14, 17.02, 18.02, 19.03, 21 (Municipal Strategic Statement), and Clause 65 (general decision guidelines). Clause 21.03-3 includes a Structure Plan for Muskvale Leonards Hill. State and national greenhouse strategies, and legislation relating to flora and fauna protection, are among other material considered by the Tribunal. Clause 52.32 applies to wind energy facilities with decision guidelines requiring consideration of:

• The views of the Sustainable Energy Association of Victoria about the contribution of the proposal to reducing greenhouse gas emissions.
• The effect of the proposal on the surrounding area in terms of noise, blade glint, shadow flicker and electromagnetic interference.
• The impact of the development on significant views, including visual corridors and sightlines.
• The impact of the facility on the natural environment and natural systems.
• The views of the Civil Aviation Safety Authority if within a 30 kilometre radius of an airfield.
• The Policy and Planning Guidelines for Development of Wind Energy Facilities in Victoria, 2003.

[10] We have considered the provisions of Clause 42.01 and Schedule 1.

[11] VicRoads has offered no objection to the proposal subject to conditions being included on any permit to issue.

[12] Our inspection occurred on 22 June 2007. It included the review site, many of the dwellings and properties within one kilometre of the proposed turbine locations, and the wider area.

[13] Amendment VC16 to all planning schemes.

[14] Macarthur Wind Farm Pty Ltd v Moyne SC [2006] VCAT 1423, Start v Pyrenees SC [2006] VCAT 2599, P1677/2005 Naroghid Wind Farm Pty Ltd v Corangamite SC.

[15] For example, reports dealing with wind farms proposed at Bald Hills (2006), Macarthur (2006), Yaloak (2005) and Wonthaggi (2003) by independent panels and advisory committees.

[16] Capacity factor is defined by Sustainability Victoria as the ratio of annual energy generation to the maximum possible generation of the plant operated at full power every hour of the year.

[17] The Star, Tuesday 15 May 2007, page 37.

[18] We refer to this organisation as "SV".

[20] For example, permit application PL-SP/05/0283 Macarthur wind farm, report of the Panel, May 2006 at page 59. That panel also recommended public reporting of the actual capacity factor, although that was not included in the issued permit.

[21] A recent example is McGill v Bass Coast Shire Council [2007] VCAT 1028 that cites several other cases.

[22] We refer to these as the "Policy Guidelines".

[23] These themes are found in the Hepburn Planning Scheme and similarly in the Moorabool Planning Scheme. The Farming Zone includes two decision guidelines on these themes:

• The impact of the siting, design, height, bulk, colours and materials to be used, on the natural environment, major roads, vistas and water features and the measures to be undertaken to minimise any adverse impacts.
• The impact on the character and appearance of the area or features of architectural, historic or scientific significance or of natural scenic beauty or importance. [Tribunal emphasis added]

[24] Policy Guidelines at page 24 Evaluation of Visual Amenity.

1. [25] PWEP Panel report, Volume 2: Policy consideration

[27] Landscape & Visual Assessment Study, 2006, Map 4, page 35..

[28] Telstra Corporation v Hepburn SC (Red Dot) [2005] VCAT 1099.

[29] Telstra Corporation v Hepburn SC (Red Dot) [2005] VCAT 1099 at paragraph 35.

[30] Telstra Corporation v Hepburn SC (Red Dot) [2005] VCAT 1099 at paragraph 50.

[31] Schedule 2 - Visual Amenity and Building Design.

[32] Clause 21.03 of the Hepburn Planning Scheme.

• To enhance visual amenity in rural, township and vegetated areas of the Moorabool Shire.
• To encourage the use of external cladding, such as non-reflective materials for building construction.
• To discourage the use of materials, such as reflective cladding for building construction, which could have a detrimental effect on amenity.

[34] Map 5 - Neighbouring Residences, Landscape & Visual Assessment Study, 2006, at page 41.

[35] A condition included on the Notice of Decision by the Council and accepted by the Respondent.

[36] There is no #15 on the plan. Our assessment includes Perry residence but omits #6 and #7 as they are in the same ownership as the review site. We have also referred to another unidentified house with #21, 22 & 23. A further (possibly) vacant cottage is near to dwelling #1 but surrounded by plantings. Distances to turbines sourced from Cleary study with turbines in location shown on the plans.

[37] This standard is also referenced as NZS6808:1998. There is no Australian Standard (a draft was published in 2004).

[39] Bald Hills EES report at pages 192 - 193.

[40] Extract from Wind Farms Environmental Noise Guidelines, 2003, SA EPA, at page 10 commenting on NZS6808.

[41] Recent examples of commentary on this matter can be found in Nightingale v Latrobe SC [2006] VCAT 384 and Viste v Cardinia SC [2006] VCAT 340 although the factual circumstances in both instances differ from the current proceeding. In addition, refer to the comments on the Panel in relation to the Bald Hills wind farm at pages 202 - 203.

[42] We were advised by the Respondent that the turbines would not be operational at wind speeds of less than 3 metres/second.

[43] Refer to cited evidence Bald Hills panel report at pages 196 - 197 and Bald Hills panel conclusions at pages 205 - 208.

[44] Wind Farms Environmental Noise Guidelines, 2003, SA EPA, at page 13.

[45] Letter to Mr D Shapero from Mr G Hull, Manager Coasts and Land Use Planning, South West, dated 19 June 2006. That may relate to an earlier draft of the June 2006 Fauna Assessment Report.

[46] It does not appear that all of DSEs requested conditions from 19 June 2006 letter were included in its letter to the Shire commenting on the proposal - a letter dated 22 December 2006.

[47] For example, Yaloak Wind Farm Panel, March 2005, at pages 116 - 117, and proposed Cullerin Range Wind Farm in NSW (west of Goulburn).

[48] Leonards Hill Wind Farm - Fauna Assessment, Addendum, June 2007 at page 4 of 9.

[49] The letter from Mr Hull to Mr D Shapero indicates that little or no native vegetation exists on the land. The letter refers to an inspection of the site by DSE.

[50] Such as the National Estate or Victorian Heritage Register.

[51] Reference was made to some relics being dug up on the hill by Ms Barron's father but no indication that the location was close to the site for the turbines.

[54] Report by Hardrock Geotechnical Pty Ltd dated 27/10/06.

[55] Refer comments in Macarthur wind farm panel report at page 138.

[56] Letter to the Council dated 8/12/06.

[57] The situation may be different if the land was designated as 'crown land' or the native title claim was at a different stage.