RES Southern Cross v Minister for Planning and Taralga Landscape Guardians Inc.

Land and Environment Court (NSW)|1992-02-24|Before: Stein J, Ms J, Preston CJ

CITATION : RES Southern Cross v Minister for Planning and Taralga Landscape Guardians Inc. [2008] NSWLEC 1333 This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT RES Southern Cross

PARTIES : FIRST RESPONDENT Minister for Planning

KEY ISSUES: Development Consent - Modification Application :- Substantially the same development; Visual impact; Noise

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Threatened Species Conservation Act 1995

Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd [2007] NSWLEC 59 1643 Pittwater Road v Pittwater Council [2004] NSWLEC 685 CASES CITED: Vacik Pty Limited v Penrith City Council, unreported, Stein J, No. 10242 of 1991, 24 February 1992 Walton v Blacktown City Council [2006] NSWLEC 451 Wyong Shire Council v Shirt (1980) 146 CLR 40, [1980] HCA 12 Zhang v Canterbury City Council (2001) 115 LGERA 373

DATES OF HEARING: 7, 8, 11, 12 and 13 August 2008

APPLICANT Mr A Pickles, barrister INSTRUCTED BY Middletons LEGAL REPRESENTATIVES: FIRST RESPONDENT Ms J Smith, solicitor Legal Branch Department of PLanning SECOND RESPONDENT Ms M Grahame

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

07/11216 RES Southern Cross v Minister for Planning and Taralga Landscape Guardians Inc.

The consequence of the Court's decision in this appeal is the modification of an existing development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ Introduction 1 COMMISSIONERS: On 12 February 2006, Preston CJ gave a decision confirming, on an amended basis, a ministerial consent for the establishment of a wind farm at Taralga (see Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd [2007] NSWLEC 59). We have quoted a number of passages from this decision which refer to a map attached to the decision. To assist understanding quotations and also the locations cited by us, we have attached a copy of the same map to this decision.

2 In discussing reactions to the insertion of a wind farm into a rural landscape, His Honour said: 1 HIS HONOUR: The insertion of wind turbines into a non-industrial landscape is perceived by many as a radical change which confronts their present reality. However, those perceptions come in differing hues. To residents, such as members of Taralga Landscape Guardians Inc (the Guardians), the change is stark and negative. It would represent a blight and the confrontation is with their enjoyment of their rural setting.

2 To others, however, the change is positive. It would represent an opportunity to shift from societal dependence on high emission fossil fuels to renewable energy sources. For them, the confrontation is beneficial - being one much needed step in policy settings confronting carbon emissions and global warming.

3 Resolving this conundrum - the conflict between the geographically narrower concerns of the Guardians and the broader public good of increasing the supply of renewable energy - has not been easy. However, I have concluded that, on balance, the broader public good must prevail.

3 It is in the context of the above dichotomy that we consider this modification application by RES Southern Cross.

The modification application 4 RES Southern Cross has applied to modify the proposed wind farm. The modification has three elements to it. The first is to increase the height of the tip of the rotors to 131.5 m above ground level instead of the presently approved 110 m. As a consequence of this increase in height, the second element becomes necessary -the incorporation of aviation safety lighting on some of the turbines.

5 The final element is the deletion of the most northern of the originally approved turbines (with this removal being the consequence of negotiations between RES Southern Cross and the owners of Omaru, the property immediately to the east of the most northern row of turbines -Row 13). As a consequence, the modified wind farm would now have 61 turbines rather than the 62 approved by Preston CJ.

6 The Guardians have been joined as the Second Respondent of these proceedings. They provided effective opposition to the modification application.

Summary of conclusions 7 We indicate at the outset that we have concluded that the modification application should be approved. However, we have also concluded it should not be approved in the terms proposed by RES Southern Cross, as we believe that there need to be changes to the conditions of consent to deal with valid objections which emerged during the proceedings.

8 We have no doubt that the Guardians will be disappointed with this conclusion, however, the active and constructive process which the Guardians' opposition has given rise to has assisted in making of the modified development more acceptable.

9 The ability which the modification application gives us to revisit the conditions of consent (in a fashion consistent with that discussed by McClellan CJ in 1643 Pittwater Road v Pittwater Council [2004] NSWLEC 685) has enabled approval of the modification to achieve improvements over the original conditions of consent.

The wind farm and its context in the surrounding countryside 10 Preston CJ provided a description of Taralga and its surrounding countryside in the original proceedings cited above. His description, which we adopt, was in the following terms: Taralga and its setting

49 The National Trust of Australia (New South Wales) (the National Trust) classified Taralga Village in 1981. The identification was specifically for the "Taralga Urban Conservation Area". The National Trust's listing register gave the following description of the village and its history: "The country around the present township of Taralga was first explored in May 1819 by Charles Throsby. The present site of Taralga was within grants given to James Macarthur and William Macarthur in 1824 and later.

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

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

There is relatively little unsympathetic development anywhere in the town." 50 The National Trust gave the following reasons for its listing of the "Taralga Urban Conservation Area": "Taralga has no great architecture nor has it any nineteenth century "boom time" buildings. What it does have are a number of fairly well preserved buildings - particularly in stone - which still convey quite well the feeling of modest country town architecture of the 1850s and 1860s. A handsome urban Guardians around the former Courthouse at the southern end of Orchard Street is complemented by a similar if less important Guardians at the northern end. The whole impression of the town however is one of "buildings within landscape". On the evidence of old photographs this "openness" has always been evident." 51 In addition, the Catholic Church in the village (the Church of Christ the King) was listed on the State Heritage register in April 2004. There is no suggestion that the proposal will have any specific impact on this heritage item.

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

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

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

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

The modification assessment process 11 It is long settled that the statutory provisions permitting modification of approved developments are facultative and beneficial for those seeking such modifications.

12 Three steps need to be addressed in our assessing this modification application. The first arises from the provisions of s 96 of the Environmental Planning and Assessment Act 1979 (the Planning Act) which permits such modifications subject to the threshold test of whether the wind farm, if permitted to be modified as RES Southern Cross seeks, would be substantially the same development as that to which the original approval was given.

13 If the proposed modification passes this statutory threshold test, our consideration then proceeds to assess the acceptability of the modified proposal when tested against the provisions of s 79C of the Planning Act.

14 This testing of the merits of the proposed modification is only a testing of the incremental alteration proposed by the modification - that is whether the additional impact of the modification is acceptable.

15 This merit assessment needs to be carried out, consistent with that undertaken in the earlier Court proceedings, on both a general basis and on the basis of impacts on specific properties.

16 It should be noted that, in assessing this modification application, we do not have the power to question or reverse the decision of Preston CJ in the earlier proceedings.

17 Further, we note that the only circumstances in which we might be able to consider whether or not specific turbines or groups of turbines might be required to be removed would be if such removal were necessary to render the modification application acceptable on the broader assessment basis.

18 We do not have the power to order the removal of individual turbines or groups of turbines because of the impact of those turbines on an individual property. We have, however, the power to refuse modification to individual turbines or groups of turbines if the result of the modification application, would render a previously acceptable impact on a specific property unacceptable.

The Statutory Threshold Issue 19 A number of individual objectors and the Guardians press the objection that the proposed modification would result in a development which would not be substantially the same as that which was originally approved.

Merit issues 20 The Guardians submit that there is either insufficient information to enable us to make a decision or, where there is adequate information, that information demonstrates that the impact is unacceptable.

21 There were also other objections to the proposal made by persons who were not members of the Guardians. These objections, however, raised similar issues.

22 In addition, a number of the objections expressed scepticism about the phenomenon of climate change and its impact on the planet.

23 The general impacts which are raised relate to an alleged failure by RES Southern Cross to demonstrate any change in circumstances since the original approval; increased visual impact on Taralga village; additional noise; risks to public safety; additional impacts on flora and fauna; additional traffic movements; additional shadow flicker; the need to increase the area within which landscaping should be provided from 2 km to 4 km; defects in the associated properties owners' consents for the modification application; and increased non-compliance of the wind farm layout with applicable planning guidelines.

24 Although arising with respect to a number of individual properties and public roads as specific matters, the question of potential public safety impacts which might be caused by failure of one or more turbine blades or turbine towers can be dealt with as a general issue rather then requiring analysis for each location at which such risk is said to occur.

25 The properties at which specific, individual impacts are pressed are St Ives, Brigadoon, the Ross's property, Cloverlee, Cushendall Vineyard, Mr Sassine's property and Ms Alder's property.

26 It is appropriate to note that, of the seven the properties above, five were visited and considered by Preston CJ. Only two properties were not the subject of such specific viewing and consideration, namely Brigadoon and Mr Sassine's property.

Supporters' evidence 27 During the course of the first day of the proceedings, evidence was given by a number of supporters of the application. A number of written documents were provided in support of the application by persons not associated with the proposal.

Conditions of Consent 28 Although RES Southern Cross originally advanced the proposition that all that was required to permit the modification was to make the appropriate numerical adjustments to the original orders and that the conditions of consent did not require any change, it became apparent during the course of the hearing (and indeed was subsequently conceded by RES Southern Cross) that if the modification were to be approved some changes to the conditions would be required.

Tablelands Basalt Forest - an endangered ecological community 29 One circumstance which has changed (and which we need to consider) since Preston CJ's original decision is the declaration, pursuant to s 17 of the Threatened Species Conservation Act 1995, of an endangered ecological community known as Tablelands Basalt Forest.

The inspection 30 We spent a full day visiting the properties earlier noted and hearing evidence of the objections of the owners at each location. We also visited two of the locations from which photomontages had been in evidence in the original proceedings and for which amended photomontages were in evidence in these proceedings. One of these was just off the Goulburn Road to the south of the village at Hillcrest Road and the other at the geographic centre of the village itself.

31 We also visited several other viewing locations within the village. The s 96 threshold test 32 The classic test for considering this question is derived from Vacik Pty Limited v Penrith City Council (an unreported decision of Stein J on 24 February 1992), a case which dealt with the statutory provision (which was then located in a different section of an earlier version of the Planning Act). The test was posed by Stein J as being: Turning to the issue of s102(1)(a). Is the proposed modified development substantially the same development as that in the development consent (as already amended)? In my opinion 'substantially' when used in the section means essentially or materially or having the same essence.

33 As we understand the position, the Guardians advance two bases upon which the proposed modifications do not satisfy this test.

34 The first is that the extent of the increase of height (being some 18% or so) changes the essential nature of the activity so that it is not substantially the same. The second is that the requirement by the Civil Aviation Safety Authority (CASA) for aviation hazard warning lights to be attached to 18 of the turbines (where none were actually required before) is a change of such substance that the modified proposal is no longer substantially the same as that already approved.

35 Although the Environmental Impact Statement in support of the approved proposal indicated that no lighting was proposed and Condition 3 of the conditions of consent imported, by express reference, the terms of the Environmental Impact Statement as an element of the consent, Condition 3 also makes it clear that, to the extent that there is any inconsistency between the conditions of consent and any of the documents listed in and imported by that condition, the inconsistency is to be resolved by the preferring the terms of the specific condition rather than the imported document.

36 As a consequence, although the absence of lighting is in the Environmental Impact Statement, the condition permitting lighting (if required by CASA) overrides the Environment Impact Statement.

37 The consequence of this is that there is no need to modify the conditions of consent to provide for or take account of that hazard lighting now proposed.

38 Although we consider, in the interests of providing greater certainty in the conditions of consent, this condition should be revised nonetheless the granting of a modification to increase the height of the turbines will act to trigger an existing condition of consent and thus does not require modification to the conditions of consent. The requirement for lighting arises as a consequence of the modification of the height necessitating it but that modification of the conditions of approval is not required (but is desirable for clarity).

39 Although this is a change, it is nonetheless a change contemplated by the existing conditions of consent. The s 96 threshold test is therefore not breached on either basis advanced by the Guardians.

Consideration of the general issues Failure to demonstrate a change of circumstances 40 The Guardians have submitted that RES Southern Cross should demonstrate some change in circumstances sufficient to constitute justification for a modification application.

41 This submission raises the question of whether Preston CJ's decision determined, on a contested basis, that 110 m to rotor tip turbines was an appropriate element to approve for this wind farm. In fact, as the decision reveals by omission, this issue was not the subject of any contest before him.

42 As a consequence, there is no prior decision on a contested point arising here which would require changed circumstances to be established (see Preston CJ in Walton v Blacktown City Council [2006] NSWLEC 451 at para 64).

43 There is, therefore, no necessity for RES Southern Cross to demonstrate that there are changed circumstances as the aspects of the proposal sought to be modified were not contested and determined matters in the earlier proceedings.

44 Although somewhat out of the ordinary run of development applications, the modification application sits squarely within the conventional framework and should be approached in that fashion.

Climate Change 45 Preston CJ's decision dealt extensively with the public interest issues associated with climate change at (67) to (81) of his reasons for decision. We adopt his comments in those paragraphs and note that information made available by the Intergovernmental Panel on Climate Change, in reports published since that decision, provide significant reinforcement for decision makers, when exercising discretions concerning greenhouse gas friendly projects. Such material reinforces the paramountcy of the public interest.

46 We make this observation as several of the submissions made in objection to the wind farm modification were made on the basis of either climate change scepticism or denial.

47 In addition to Preston CJ's findings there is further scientific evidence of the risks of climate change. Increased visual impact on Taralga village 48 Visual impact on the village of Taralga was discussed by Preston CJ. The visual impact which is additionally caused to the village by the modification falls in two parts. The first is the daytime visual impact and the second is the addition of red flashing hazard beacons for 18 of the 61 turbines (with those flashing beacons being spread across the full length of the north-south axis of the wind farm - the length approved by the Preston CJ but with Turbine 62 removed.

49 RES Southern Cross has provided correspondence from the Civil Aviation Safety Authority (CASA) which has recently given approval to a lighting plan identifying the turbines which would be required to be lit. Circular 139 (Version 1.4 - April 2008) from CASA sets the specification for the lights to be used for this purpose.

50 We turn to the daytime visual impact of the modification proposal. Mr Wyatt, RES Southern Cross's visual impact expert before Preston CJ performed the same role in these proceedings. Mr Wyatt provided a number of photomontages of the existing landscape, the landscape with the approved wind farm inserted into it and the landscape with the modified wind farm inserted into it. These photomontages were provided from a variety of locations (being the locations where photomontages containing the first two elements had been in evidence in the proceedings before Preston CJ).

51 Mr Wyatt explained the technical basis for the preparation of these photomontages and the fact that the blades of the inserted turbines were done in random configuration rather than having all blades pointing in the same direction. This, he said, was a function of the software used to create the images rather than any deliberate decision on his part. We accept the accuracy of his photomontages.

52 As was explained by Preston CJ, the fundamental impact on this landscape is the insertion of the industrial elements of the wind farm within it. The insertion of the turbines changes the landscape significantly (and potentially irreversibly but certainly for a very lengthy period of time). It is that first dramatic breach of the integrity of the landscape that was found by Preston CJ, for reasons of public policy, to be an acceptable alteration to that landscape.

53 We have carefully considered the extent of the increase of that alteration to the landscape which will be occasioned by approving the modification application. We are satisfied that the perception of the incremental change (as opposed to the insertion of the turbines in the first instance) will be hardly noticed during the daylight hours.

54 It is likely, with respect to the night-time lighting now required, that the genuinely held opposition of those who do not wish to accept the intrusion of a wind farm in the landscape to the east of the village will be strengthened as a consequence of approval of the modification application.

55 However, we also accept what necessarily follows from Mr Wyatt's evidence - namely that a person viewing the landscape to the east of Taralga from any of the general viewing points to which were taken would not appreciably notice any difference to the extent of the intrusion if they were first viewing the wind farm as approved by Preston CJ or a wind farm as modified by this application.

56 We have therefore concluded that the visual impact of the modification application during daylight hours is so slight that it does not warrant refusal of the modification application.

57 A somewhat different position applies with respect to the night-time lighting.

58 It was Mr Wyatt's evidence that, at the distance of the village from the turbines, the lighting would appear as a single flashing point source for each lit turbine rather than the two sources close together which would, in fact, be installed.

59 We accept that there will be some locations when all or virtually all of the lights may be visible. We have, therefore, proceeded to consider whether the night-time lighting of the turbines would be unacceptable from the perception of a viewer who saw all of those lights at the same time.

60 The night-time lighting is the one area where the modification application significantly differs from the application proposal approved by Preston CJ.

61 However, the conditions of consent which attached to the present approval contemplated the possibility that lighting would be required by CASA.

62 This condition is in the following terms: 103 Prior to the commencement of operation, the following details are to be submitted to CASA, Department of Defence, and the Australian Aerial Agricultural Association: (a) 'as constructed' coordinates of the wind turbines in latitude and longitude; (b) final height of the wind turbines as per AHD; (c) ground level at the base of each of the wind turbines as per AHD; and

must comply with any reasonable requirements of CASA and Department of Defence.

63 Although the Environmental Impact Statement indicated that the 110 m to turbine tip wind farm would not require lights and the possibility of lighting was, as a consequence, not dealt with as an issue in the earlier proceedings the conditions, nonetheless, provided for that possibility.

64 On one construction of the conditions, coupled with the consideration of the current provisions of CASA's hazard light warning requirements, lighting might have become mandatory, in a fashion identical to that proposed for the modified turbines, for the turbines approved by Preston CJ.

65 However, we do not consider we should deal with this lighting on that basis - we consider that the lighting now proposed should be treated as a new and modifying element to the wind farm as originally approved.

66 The conclusion which Mr Wyatt drew concerning night-time lighting was in the following terms: The real visual impact of the night lighting will be the reminder, especially for residents who dislike wind turbines, of their presence at night. For such residents of the area the visual impact of the night lighting will be disproportionate to any measurable or quantified impact such as illumination levels, size of lights etc. For these residents the impact will be high.

67 The Guardians complained that no night photomontages had been provided to give an indication of the effect of the proposed aviation hazard lighting from any vantage point.

68 Mr Wyatt provided a single photographic depiction of what a limited number of these lights would look like in a night sky.

69 We are satisfied that there may be some adverse visual impact simply by the addition of these flashing red lights into the night-time sky east of Taralga. We accept the evidence given by Mr Polley that those lights may spoil or detract from the enjoyment of the otherwise expansive and pleasant experience of what Banjo Patterson described (in "Clancy of the Overflow") as the wondrous glory of the everlasting stars of a rural night sky.

70 However, we also consider that it is appropriate to have regard to the fact that, unlike the daytime visual intrusion of the wind farm when people are out and about, the period of experiencing the impact of the proposed aviation hazard lighting is likely to be much more transitory for people who are moving about in the evening than for people who will be out and about for longer periods of time during daylight hours.

71 For those who might have an outlook from residential windows which encompasses this lighting as part of their night-time sky, we accept Mr Wyatt's evidence that, for at least a significant element of such an outlook, the internal lighting of a room will have the windows of the room give an internally reflective mirror effect rather than a view to the hazard lights themselves.

72 For these reasons, we accept that, for an impartial observer, the impact or the addition of these lights in the night sky is not such as to warrant refusal of the application nor to make a significant contribution to such refusal.

73 In making that comment, we readily accept and understand the validity of the conclusion expressed earlier by Mr Wyatt concerning those who strongly oppose the original proposal and this modification.

74 However, in our opinion, the open ended nature of the condition which presently contains the basis for such hazard warning lighting (as set out earlier) is insufficiently precise and should be changed.

75 The conditions should specify the turbines which are to be left as disclosed in the plan approved by CASA and the place from which the technical specifications of the hazard warning lights are drawn (being CASA's Circular 139) should be incorporated into the conditions of consent and the present more vague condition concerning hazard lighting removed.

76 During the course of the hearing, a subsidiary issue emerged as to whether the visual impact of the wind farm would alter because CASA required the pylons and rotor blades to be painted white.

77 The present conditions of consent concerning the colour of the elements of the wind farm is in the following terms: 34 The wind turbines must be painted matt off-white/grey. The blades are to be finished with a surface treatment that minimises any potential for glare or reflection.

78 RES Southern Cross has indicated it does not seek any variation to this condition of consent. Additional noise 79 The issue of noise having an increased impact on specific locations is dealt with elsewhere in this decision.

80 Here, we deal with the broader question of whether there is adequate data to consider the noise implications of the modification proposal and, indeed, whether it is necessary for us to do so.

81 The conditions of the current approval place limits on noise levels at various receptor locations. Those noise levels are capable of accurate determination.

82 The position which RES Southern Cross takes in these proceedings is that it remains bound by those conditions; it proposes to manage the wind farm in a fashion to comply with those conditions; and, as a consequence, there is no need to (nor any power to) re-visit the conditions of consent relating to noise.

83 In the alternative, RES Southern Cross says that any variation to the conditions of consent dealing with noise should be limited to the adoption of the draft Operational Noise Management Plan, a document required to be prepared by condition 39(d) of the original consent and presented to us.

84 The Guardians, on the other hand, submit that there is inadequate information about the effect of the modification on noise. RES Southern Cross concedes that there will be some increase. The uncertainty should lead us to re-visit the question of monitoring to ensure that RES Southern Cross meets the performance standard for the various locations established by the existing conditions of consent (particularly those sensitive receivers listed in Condition 42).

85 The Guardians propose that there should be permanent noise monitoring established. This might include a system that automatically shuts down one or more of the turbines when permitted noise levels are exceeded.

86 In the proceedings before Preston CJ, the desirability or appropriateness of permanent monitoring had been canvassed. For us to require permanent monitoring we must be satisfied that there are sufficiently changed circumstances warranting a change in the conditions before we can consider the merits of permanent monitoring.

87 We are satisfied that the fact that there will be some change in the noise levels and that we do not have precise information (such as an updated version of the noise contour map in the Environmental Impact Statement reflecting the change in noise levels by the modification proposed) provides the basis for us to reconsider this issue.

88 However, consistent with the approach taken by the Preston CJ, we do not consider that a permanent real-time monitoring system is appropriate because such a system could be manipulated by creating noise that has nothing to do with the turbines. Such noise could shut down the operations of turbines without justification.

89 However, we believe that there is sufficient uncertainty to require a regime of random compliance testing to be undertaken in a fashion similar to that used for licensed premises.

90 This would permit random testing (using equipment which complies with condition 48 within the present conditions of consent to avoid wind noise on the testing equipment) to be undertaken without notice to Southern Cross on a limited number of occasions in any 12 month period. Noise testing undertaken on this basis should be paid for by RES Southern Cross but should be organised by an independent body.

91 We have considered what might be an appropriate frequency for such testing and who might be authorised to commission and manage it.

92 The Guardians put to us that they did not consider that the Upper Lachlan Shire Council was the appropriate body for this task as the Council might not be interested in this enforcement role. As the Council has taken no part in these or the earlier proceedings, we consider it would be inappropriate to delegate this task to the Council.

93 We propose that a testing regime should be undertaken; paid for by the applicant; and independently organised, on six occasions during each year at the locations identified in condition 42 (provided their owners give consent to such testing occurring and the properties do not become associated with the development). The results of such tests should be made available to the company, the Guardians, and each property owner whose property was tested within 28 days of the tests being conducted.

94 We have also considered whether the monitoring role should be given to the Director-General of the Department of Planning. We note that the Director-General has significant supervisory roles for other aspects of the wind farm. On balance, we have a preference for the Director-General undertaking that role. However, we propose to provide the parties with the opportunity to consider this issue and settle an appropriate monitoring regime in the altered conditions of consent.

95 We do not consider it appropriate to rely on the adoption of the draft Noise Compliance Assessment Plan provided by RES Southern Cross. We consider that the independent monitoring proposed is appropriate for two reasons. First, monitoring independent of an operator is a commonly accepted practice for assessing compliance with conditions of consent. Second, it is desirable the local community have a degree of comfort that noise compliance is being monitored at arm's length from the company. The limited monitoring we propose will ensure that both these objectives are satisfied. Risks to public safety 96 The Guardians tendered a paper by authors based at the University of California, Davis, concerning the possible consequences of blade or tower failure of wind farm turbines.

97 The approach that we are required to take comes from the decision of the High Court in Wyong Shire Council v Shirt (1980) 146 CLR 40, [1980] HCA 12. That decision requires us to determine whether there is a foreseeable risk.

98 For the purposes of this analysis, we accept that there is. We do not, however, accept that the extent of the risk is such that a prudent approach requires some ameliorative measures to be undertaken. This is because we do not consider that those places which are subject to that risk, which has a low probability of occurring, are sufficiently trafficked to required any ameliorative steps to be undertaken.

99 The principal public thoroughfare to which the risk would attach is the Bannaby Road. Although a public road, we do not accept that it is the equivalent of a major and well trafficked high volume public thoroughfare. The Bannaby Road is a comparatively minor rural road. The position would have been different, for example, if the potential impact were on the Goulburn Road.

100 Similarly, the proximity of turbines to the fence line with non-associated properties adjacent to Rows 11, 12 and 13 affects areas where there are few people.

101 Following the approach required by Shirt, none of these risks are of sufficient likelihood of occurring to require measures to ameliorate the risk. Tablelands Basalt Forest 102 As noted earlier, since Preston CJ's decision Tablelands Basalt Forest has been listed as an endangered ecological community.

103 To the extent that the modification application might impact on this endangered ecological community, it is necessary to consider the extent to which the modification application involves any alteration to the physical footprint of and impact by the approved development.

104 RES Southern Cross submits that additional concrete in the footings may be required but that, essentially, there will be no need to change the existing conditions of consent.

105 Dr Mills, an ecologist on behalf of RES Southern Cross, gave evidence concerning possible presence of Tablelands Basalt Forest at the various locations for the approved development.

106 He conceded that he had identified a number of locations in his original assessment where Tablelands Basalt Forest, or that some of the various species forming part of the community, may have existed.

107 He also agreed that it was possible that some elements of the community remained present at some parts of the approved development.

108 RES Southern Cross accepts that with the modification there are additional locations where the rotor blades will need to be lifted into place on the turbine individually in order to minimise damage to vegetation. It conceded that some modification to the conditions in this regard might be appropriate. We agree.

109 Although there is no evidence that Tablelands Basalt Forest is present located anywhere to be impacted by the proposal, we believe that a precautionary approach should be taken to guard against the modification application having any impact on Tablelands Basalt Forest. To achieve this, we consider that three alterations to the conditions of consent are appropriate.

110 The first is a modified version of Condition 86 or Condition 87 of the present conditions; the second is a modified version of Condition 88 of the present conditions; and the third is a list of all those turbines where "separate lift at installation" of rotor blades directly onto the turbine is required. This is consistent with what is discussed at page 2.15 of the original Environmental Impact Statement. Wedged-tailed eagles 111 Mr Lane, an expert on birds on behalf of RES Southern Cross, gave evidence to the effect that there would be no significant additional impact on Wedge-tailed eagles if the modification were approved.

112 With respect to Wedge-tailed eagles, Preston CJ said: 258 A number of Wedge-tailed Eagles live in the general locality of the proposed windfarm. They use the thermals and up-drafts associated with the edge of the Cockbundoon Range to the east of the village.

259 On this topic, I had the advantage of evidence from Dr Meredith, the Court-appointed fauna expert, and Mr Lane, RES Southern Cross's bird and reptile expert.

260 Although there is some limitation on the degree of survey information available to me on this topic, I am satisfied that I am sufficiently informed to be able to deal with it.

261 The evidence is that there will be some impact on these birds by the windfarm. That is certainly the experience in Tasmania and Victoria. It is clear that the use by the birds of the same wind resource that makes the site attractive for a windfarm and the fact that the birds are likely to be concentrating on potential prey on the ground creates the potential for collision between these birds and turbine rotors.

262 Dr Meredith expressed the opinion that there was a risk that ongoing deaths of these birds would result in recruitment of new eagles from outside the locality who would also suffer the same fate. He described this as a "potential sink" for eagles.

263 However, even if this were to occur, he postulates a maximum fatality rate of three birds per annum being likely.

264 Mr Lane disagreed. He did not consider that the risk was unacceptable and he supported amelioration measures to deal with minimising risk.

265 The conditions of consent require the adoption of a range of amelioration measures to discourage eagle flight paths in the vicinity of rotors. These are to be contained in the Operation Flora and Fauna Management Sub Plan. They include matters such as swift carcass removal, minimisation of perching opportunities, pest animal control and the like.

266 Dr Meredith accepts that these are appropriate mitigation measures. However, he remained concerned that, even with the range of proposed amelioration measures, the mortality rate for Wedge-tailed Eagles could be as high as three birds per annum.

267 Although such a mortality rate is undesirable, I cannot be satisfied that there is any species protection reason which would warrant refusal of the windfarm because of this impact.

113 Preston CJ then required that a financial penalty condition to provide compensation for the mortality of Wedge-tailed eagles should be inserted into the conditions of consent. The financial penalty condition arising from the original approval is in the following terms: 92 The Proponent must make a financial contribution of $1500.00 to the NSW Wildlife Information and Rescue Service (WIRES) for each death of a wedge-tailed eagle that has reasonably been attributed to the carrying out of the development. The financial contribution must be paid by the Proponent within one month of the Proponent becoming aware of the death. The contribution must be adjusted to take account of any increase in the Consumer Price Index over time, commencing at the March 2007 quarter.

114 Although Mr Polley, a member of the Guardians, advocated a radical increase in the compensatory payment amount to $10,000 or so, we have been provided with no basis upon which we could reach any rational conclusion that the amount which Preston CJ considered appropriate should be adjusted.

115 Although Mr Lane did not quantify the possible increase in number of eagles which might be killed as a result of the modification, we accept that some small increase in fatalities of these birds will be possible. That small increase does not justify refusal. Bats 116 The second issue concerning fauna is whether the modification application will increase the impact on bats which forage in the vicinity. If there is such an impact, is it acceptable or not?

117 Dr Richards, a bat expert gave evidence on behalf of RES Southern Cross. He also gave evidence in the earlier proceedings.

118 Preston CJ's conclusions concerning bats were given in the following terms: 271 On this topic, I had the advantage of evidence from Dr Meredith and Dr Richards, RES Southern Cross's bat expert.

272 Additional survey work was undertaken during the period between the first and final phases of these hearings so that adequate information is now available to permit determination of these issues.

273 The issue of destruction of habitat area as a consequence of clearing for Row 6 has been resolved by agreement for a re-afforestation planting elsewhere and at a location not immediately adjacent to any turbines.

274 The risk of fatalities being caused by impact with the turbines is greater for the Yellow-bellied Sheathtail Bat than for the Eastern Falsistrelle. This is because the typical foraging flight pattern for the first is more likely to be higher (at the turbine rotor height) than that for the second which has a more ground level foraging flight pattern.

275 Dr Meredith and Dr Richards gave concurrent oral evidence on this issue. Dr Richards considered that the impact on either species was acceptable. Dr Meredith considered that the impact on the Eastern Falsistrelle is likely to be acceptable and that the impact on the Yellow-bellied Sheathtail Bat is probably likely to be acceptable. The difference in the two positions taken by Dr Meredith comes from the differences in flight patterns noted above.

276 Taken together the conclusions of the two experts mean I do not have any reason to conclude that the impact would be unacceptable on either species.

119 The Guardians sought to explore, during their cross-examination of Dr Richards, whether or not further endangered species of bat would be expected to be on parts of the site.

120 Dr Richards said that further endangered species of bat were unlikely to be present on the site and he did not expect that there would be any additional impact on those bats which were present on the site. He added that, at wind speeds greater than 8 m per second, bats were unlikely to be flying in the vicinity of the moving rotors and that bat activity commenced to diminish at wind speeds of greater than 7 m a second or so. This is because of their extremely small body weights and their consequent inability to manoeuvre against or across winds of that speed or higher.

121 Mr Liebmann, Managing Director of RES Southern Cross, gave evidence that the turbines would be moving at wind speeds from about 4 m per second so that there is a 30% increase in the swept area of the turbines where there might be an intersection with flying bats at winds speeds of 4 to 8 m per second.

122 However, we also have Dr Richard's evidence that the portion of the moving rotor which causes fatalities for bats (by virtue of decompression rather than collision, he postulated), was the area at the tip of the rotor rather than other areas of the rotor blade. He gave evidence that he had seen video footage of bats moving in and out of such moving rotors at other points along the moving blade without colliding with such blade).

123 The length of the swept path of the rotor tips increases by less than the extent of the increase in the area swept by the rotors. This is a function of the fact that the formula for the circumference of a circle is based on a linear relationship with the radius while that for calculating the area is based on the square of the radius.

124 The length of the swept path of the tips of the rotor will increase by some 22%.

125 Although we accept that there may be some increased mortality for those bats which are likely to be present and flying in the vicinity of turbines, we do not consider that the increase which would result from the modification application is sufficient (when compared to the impact determined to be acceptable by Preston CJ) to warrant refusal. Additional traffic movements 126 The Guardians raised the question of whether the possible increase in the volume of concrete required for the footings of the pylons would increase the traffic for the construction of the wind farm.

127 Mr Liebmann gave evidence that the amount of materials required would depend on the precise engineering design for each of the footings.

128 These engineering designs can only be ascertained after a detailed assessment is made of the underlying geology of each of the turbine sites. The present approval includes ability for the location of each individual turbine to be moved within a limited range. Mr Leibmann said that the volume of material used for the footings could be less than that originally anticipated or there could be a modest increase in the needed material as a consequence of detailed design.

129 We have been provided with photographs of wind farm turbine footings from wind farms and overseas locations. We are satisfied, if there were to be some increase in the amount of materials required for the footings, that that is not likely to be significant. To the extent that there might be some minor increase in impact, if all of the footings for the modified proposal required adjustment of up to 10% of the concrete required, given the amount of other materials to be transported (reinforcing steel, turbines, blades, tower parts, road base for the track network and the like), we are satisfied that this impact arising from the modification proposal would be minor.

130 Given that RES Southern Cross is not seeking modification to the conditions of consent in this regard and has agreed to the insertion of the condition requiring the lifting of the separate elements of the rotor blades in areas where there might be any impact on trees, we are satisfied that this issue does not justify refusal of the modification application. Increased shadow flicker 131 Shadow flicker is a phenomenon which occurs when the sun is low to the horizon and behind the blades of a rotating turbine. It can be experienced in the morning by properties to the west of turbines and in the afternoon by properties to the east of turbines.

132 Although raised as a broad issue as well as one impacting a number of properties, we are satisfied on the evidence of Dr Slack, an expert on shadow flicker who gave evidence for RES Southern Cross, that this phenomenon is confined to localised impact. Indeed, Dr Slack calculated that, at one of the sensitive noise receiver locations known as The Farm, there was no shadow flicker impact caused by a modified windfarm. The area within which landscaping should be provided 133 During final submissions in these proceedings, the Guardians pressed for an increase in the landscaping radius from to 2 km to 4 km on the basis that a greater distance had been approved by the Minister in a number of other windfarm consents.

134 A similar proposition was advanced on behalf of the Guardians before Preston CJ. In the course of his decision, Preston CJ refused this claim saying: 281 The Guardians seek alterations of the condition to require a 4 km landscaping radius for off-site landscaping in lieu of the 2 km radius proposed by the Minister. In the Minister's written submissions concerning conditions, the Minister acknowledges that a 4 km radius has been imposed on other windfarm approvals. 282 However, as the Minister's submissions note, the three visual impact assessment experts agreed that a 2 km distance would be appropriate in these circumstances. 283 I have no evidence which would cause me to depart from this agreed position.

135 The Guardians have demonstrated no change in the circumstances since Preston CJ made this determination and, as a consequence, there is no basis upon which we could revisit his determination.

Defects in the associated properties owners' consents 136 The Guardians raised the question of whether the modification application was competent as they questioned whether appropriate owners consent had been given to the modification application by Mr Corby, the owner of a property known as The Meadows (being the southern of the two associated properties of that name).

137 Although not proposed to host any turbines, Mr Corby's property is to be used as the principal access route for construction vehicles for all parts of the project (as its use removes the necessity for any of the construction vehicles that pass through Taralga village).

138 During the closing stages of the hearing, debate took place between the Guardians and RES Southern Cross about whether sufficient proof of such consent had been provided.

139 We are satisfied that the effect of the provisions of the original option document between RES Southern Cross and Mr Corby; its extension until 2009; and its further extension until 2011 contain all the necessary documentary elements to establish both the initial and a continuing consent by Mr Corby. Non-compliance with planning guidelines 140 The Guardians raised the issue of non-compliance with Upper Lachlan Shire Council's development control plan for turbine and turbine row spacing and the non-compliance with a rule of thumb (the "5R-8R rule") published in the Sustainable Energy Development Authorities fact sheet for wind farm layout.

141 We make two observations about these non-compliances. The first is that the turbine and turbine row spacing are not proposed to be altered from that approved by Preston CJ. Although the rotor blade tips of adjacent turbines would be some 20 m closer, we do not consider this is a significant change.

142 Second, there is the scope, within the present conditions of approval, as earlier discussed, for adjustments to the location individual turbines as part of the detailed design which is dependent on further geological information.

143 Mr Liebmann gave evidence that the "5R-8R rule" was not a technical prescription but a description designed to assist public understanding of the general principles of wind farm layout. He said that the design of the rows of turbines in the approved wind farm had been undertaken after careful and detailed consideration of wind conditions and topography. To the extent that the DCP might be relevant, we are satisfied that, consistent with the decision of the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373, departure from the strict numerical provisions is justified.

Impacts on individual properties The Ross's property 144 In Preston CJ's decision, he determined that the impact of the approved proposal on this property was unacceptable and that, because the overall public benefit necessitated approval of the project, the conditions of consent should provide the option for the owners of this property, Mr and Mrs Ross, to require RES Southern Cross to purchase it from them.

145 We visited this property and it is clear that the modification application will increase the visual dominance of the turbines of Rows 2, 4, 5 and 6.

146 In addition, the modification proposal will increase the noise impact, although to an unquantified extent.

147 It is clear that that which Preston CJ held to be unacceptable will be made worse by the modification.

148 The consequence of this is that the only matters which fall for our determination are whether any of the conditions of consent relating to the acquisition process require alteration.

149 The Guardians do not suggest that the terms of conditions 4 to 8 of the development consent (setting out the process for acquisition) should be changed. The properties which have the benefit of the right to be included in this acquisition process, at the election of the property owner, are set out in Schedule 2 to the conditions of consent.

150 Mr and Mrs Ross expressed dissatisfaction with the progress (or, rather the lack of it) of negotiations of the acquisition of their property. However, the conditions of consent dealing with this issue are triggered by the commencement of construction and not by the granting of the consent.

151 While we understand the Ross's sense of frustration, we do not believe that the conditions require alteration.

152 The Guardians pressed as an alternative to acquisition that there should be a compensatory mechanism established in the conditions that enabled a compensation payment to be made to Mr and Mrs Ross or to the owners of any other property nominated on Schedule 2 for the blight which the wind farm would put on their property, so that they could retain their property at its undoubtedly decreased value.

153 Preston CJ set out, at paras (150) to (160), the reasons why he rejected such a compensatory approach. Nothing has changed since he made that determination. We therefore also reject such an approach. Cloverlee - Mr Kerridge's property 154 A similar position applies to Cloverlee as to the Ross's property.

155 Preston CJ held that the impact on Cloverlee was so significant that it warranted being included as the only property on Schedule 2 in addition to the Ross's property.

156 As with the Ross's property, that which was found to be unacceptable for Cloverlee has simply been rendered even more so by the proposed modification.

157 Whilst the original proposal might have impacted on the development potential for this property for subdivision and the modification application may increase that impact, those are matters for consideration in the process of valuation for acquisition and are not relevant matters in these proceedings.

158 Cloverlee remains on Schedule 2 and no changes to the conditions relating to Cloverlee are required. Brigadoon - the Noakes-Sherwins' property 159 Preston CJ did not visit Brigadoon during the initial proceedings. Brigadoon is a property approximately 1.5 km to the west but slightly to the north of west of village and is a little higher than the village. It is a rural property with a residence and operated as a horse stud.

160 The views from the residence on Brigadoon towards the approved wind farm are primarily, if not exclusively, to the northern portion of the wind farm.

161 No photographic evidence from this location is available - either of the visual impression of the approved wind farm or of the modified proposal.

162 However, having found that the broad visual impact of the modified application is acceptable from the village, it follows that this more distant and geographically limited view of the modified proposal is also acceptable. St Ives - the Polleys' property and Mr Buggie's property 163 During the course of Preston CJ's inspections, he visited this property but did not have the opportunity to visit the dwelling. He observed: 180 The Polley residence (red 14 on the map) is located near the south-eastern outskirts of the village. It is set in an open rural landscape and is near to but just outside a 2 km radius from the nearest turbine. 181 The family are not permanent residents of the village but Mr Polley proposes to retire to the village with his family in the reasonably near future.

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

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

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

164 As described above, Preston CJ considered that the only specific requirement needed for this property was to make provision for landscaping for this property despite it lying outside the 2 km limit.

165 The Polleys are now permanent residents at St Ives. We have visited the property and had the opportunity of visiting the curtilage of the house and looking at both its orientation (principally, but not exclusively, to the north) and of looking at the vegetation and aspect available to the house and its curtilage.

166 Although RES Southern Cross submits that this should be regarded as a dwelling effectively within a village setting, from our observation of its location outside and slightly isolated from the perimeter from the village, we see no reason based on our more extensive inspection than was available to Preston CJ to disturb the conclusion he reached.

167 We accept that there would be an increased impact on the Polleys but not sufficient to warrant refusal of the modification application.

168 We note Preston CJ's conclusion that the location of this property outside the village perimeter made appropriate to include this property in the landscaping condition as modest compensation, despite it not being within the 2 km radius. We do not consider that there is need for any alteration to the landscaping conditions arising from the change in outlook that will be occasioned to the property by the modification application.

169 We note, however, that, in close proximately to St Ives and slightly to the northeast, a new dwelling has been erected, owned by Mr Buggie, development consent for which was given in late 2006. It is clear from the location of this dwelling outside the village setting that it should be included as a nominated property in condition 32 (whether or not it is within the 2 km landscaping zone).

170 During the course of submissions on behalf of the Guardians, the possibility arose that there was another dwelling of a similar nature (located at what was described by the Guardians as Barrett's Lane) which, prima facie, would also warrant specific conclusion in the landscaping condition. Consideration of this property is left to discussion between the parties in their settlement of revised conditions of consent - it being agreed by RES Southern Cross that Mr Buggie's property should be so included. Mr Sassine's property 171 Mr Sassine's property comprises two allotments of some 40 ha in total. The two allotments are located immediately adjacent to Row 11 upon which three turbines were approved as part of the original proposal.

172 The three turbines would be each located some 100 m or so from the western boundary of this property. Preston CJ did not visit this property during the earlier proceedings and we are not aware of any objection being made by the owner during the original proceedings.

173 However, in these proceedings, Mr Sassine has lodged an objection. As part of our inspection, we visited Mr Sassine's property and walked to the western boundary from which we could observe the location of Row 11.

174 There is no dwelling on the property, however, Mr Sassine pointed out the location at which he proposed to erect a dwelling. Mr Sassine gave evidence that he had, in the past, lived on the property in temporary accommodation but now intended to reside there permanently.

175 An examination of an extract from the relevant topographic map shows that the location pointed out by Mr Sassine is likely to be the only feasible location for such a dwelling (given the sharply falling nature of the remainder of the property shown from the topographic map extract).

176 It is likely that this dwelling location would fall in a high noise impact area on the basis of the noise modelling information provided as part of the original proposal application. If this is correct, the noise impact of the modified proposal would be worse.

177 Further, the visual impact of the original proposal would have been unacceptable and the significant proximity of the approved turbines to that dwelling location might have rendered the visual impact unacceptable. Because Preston CJ did not consider this (as he was not taken to Mr Sassine's property and there were no submissions with respect to it), we consider we are obliged to assume that the consequence of Preston CJ's decision is that the visual impact of the approved turbines on that property was acceptable.

At a glance

Court

Decision date

Before

Source

Judgment (261 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (6)

Cited By (2)