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

Land and Environment Court (NSW)|2009-01-30|Before: Ms J, Preston CJ, Biscoe J

The Applicant must prepare a Noise Compliance Assessment Plan which must be submitted to, and approved by the Director-General, in consultation with the EPA, prior to Commissioning. The Noise Compliance Assessment Plan must outline how the noise compliance assessment will be achieved and be consistent, to the extent applicable, with the data acquisition methods outlined in the SA Guidelines (2003).

Within six months of Commissioning, compliance monitoring of noise during operation of the development is to be undertaken at the locations identified in condition 42. If prevailing meteorological conditions do not allow the required monitoring to be undertaken in this period, the Director-General must be notified and an extension of time may be sought.

Following approval by the Director-General, in consultation with the EPA, the Applicant must implement the mitigation and management measures outlined in the Noise Compliance Assessment Report with such amendments as required by the Director-General in order to achieve compliance with the conditions of this consent, within such period as may be directed. The Noise Compliance Assessment Report must be made publicly available.

15 Mr Turner expressed the view that the above conditions could be improved with some changes and the addition of a new condition which he proposed as triggering a regime for the requirements of additional compliance monitoring pursuant to condition 51. The consequence of this was that the company's legal representatives drafted replacement conditions for conditions 51 to 53 and a new proposed condition 53A. The Minister accepted these conditions, in their finalised form as appropriate.

16 The proposed revised conditions are as follows: 51 Within six months of commissioning, the Applicant must engage an independent acoustic consultant(s), who is to receive the prior approval of the Director-General, and to undertake a program of noise monitoring to test the noise emission performance of the development at the locations identified in condition 42 at times without notice to the Applicant (but only where the consent of the landowner has been provided to undertake the program). The program must include, but not necessarily be limited to: (a) noise monitoring and assessment generally in accordance with procedures outlined in the SA Guidelines; (b) assessment of the noise performance of the development against the noise limits specified in conditions 42 and where relevant, condition 43; (c) details of any complaints received during monitoring and assessment in relation to noise generated by the proposal; and (d) recommendations and a timetable for implementation for any Reasonable and Feasible additional measures necessary to ensure compliance with the relevant noise-related conditions of this consent.

52 Within 28 days of undertaking the noise compliance programs referred to under condition 51 of this consent, the Applicant shall provide the Director-General, each landowner on which the program was carried out and make publicly available a report prepared by the acoustic consultant(s) on the results of the program. If the noise monitoring report identifies any non-compliance with the noise limits specified under this consent, the Applicant shall detail what additional mitigation measures would be implemented to ensure compliance, clearly indicating who would implement these measures, when these measures would be implemented, and how the effectiveness of these measures would be measured and reported to the Director-General.

53 Following consideration of the outcomes of the noise compliance program referred to under condition 51 of this consent, the Director-General may require the Applicant to implement additional noise mitigation, monitoring or management measures to address noise associated with the development. The Director-General may require any or all of the measures proposed by the Applicant in the noise compliance report(s), or other measures considered appropriate by the Director-General to be implemented having regard to the SA Guidelines (2003). The Applicant shall implement the measures required by the Director-General within such period as the Director-General may specify.

53A In the event of: (a) any complaint from any resident at a relevant receiver about noise of operating turbines being received which the Director-General considers, after investigation, to be a valid complaint, or (b) after any alteration to the noise operating strategy of the development the noise compliance testing procedure in condition 51 is to be repeated for any relevant receiver.

17 During the course of the final submissions, Mr Pickles, barrister for the company, was granted leave to incorporate these amended conditions as forming part of the modification application being reconsidered by us pursuant to the remitter from Biscoe J.

18 The final element of Mr Turner's evidence concerned the likely changes in noise level at any of the relevant receiver locations as a consequence of the higher turbines and larger areas swept by longer rotor blades. It was his opinion that, at the relevant receiver locations, there would not be additional noise generated as a result of the proposed modifications or, if there were any increase in noise, it would be negligible. This evidence is also uncontradicted. 19 In summary, we are left in the following position concerning this issue: o the results of any single visit noise monitoring (on the basis we envisaged in para (93)) would provide no data which would assist in determining whether or not the terms of condition 42 imposed by Preston CJ had been complied with; o for there to be a six times per year monitoring regime on a basis which would provide useful data for such purposes, there was a significant probability that such a monitoring regime (complying with the South Australian guidelines) would amount to a de facto permanent, continuous compliance monitoring regime (being a compliance monitoring regime specifically rejected by Preston CJ); o the modified installation involving higher turbines and larger areas swept by longer rotor blades will cause, at worst, an imperceptible increase in noise at any of the relevant receiver locations (including those nominated in condition 42); and o the company has sought and been granted leave to amend its modification application in a fashion which provides a modest degree of additional protection to the local community of Taralga. 20 Although Ms Grahame, secretary of the Guardians, submitted that sufficient protection for the local community (and a less onerous burden for the company) could be achieved if the monitoring were required only four times a year this cannot overcome our concern that there is still a significant risk we would be imposing what amounted to a permanent compliance monitoring regime of the type specifically rejected by Preston CJ.

21 As a consequence, we believe that we should accept the matters now proposed in the company's revised conditions (51) to (53A).

Tablelands Basalt Forest 22 The second matter arising from the conditions of consent to be finalised following the decision of August 2008 concerns the protection to be given to possible remnants of Tablelands Basalt Forest. Our decision in this regard was as follows: 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.

23 We had left it to the parties to work out the new conditions to give effect to this element of the decision, particularly which wind turbine rows should be incorporated within such conditions.

24 Although there is broad agreement between the parties as to what is to be described, in the process observes, there is disagreement between the Guardians, on one hand, and the Minister and the company on the other hand about the turbine rows to be incorporated. As a consequence, we have needed to return to the evidence of Dr Mills to consider what turbine rows should be incorporated into the new condition.

25 The relevant element of the condition proposed by the Minister and agreed to by the applicant to give effect to this is as follows: To ensure compliance with this condition, the Applicant must engage a suitably qualified person(s) who must receive prior approval of the Director-General, to undertake a detailed survey of: o turbine rows 1,5,6,11 and 13; and o all access roads required during construction or upgrading, to determine the presence of this community …………….. 26 The Guardians propose that rows 2, 3, 4, 7, 9, 10 and 12 should be added to the rows specified above.

27 The effect of adding these rows would be that only row 8 would be omitted from the further examination process required by the conditions.

28 To resolve this disagreement, we have turned to the evidence given by Dr Mills on 12 August 2008 and the statement of evidence given by Dr Mills, which was Exhibit F.

29 After some questioning, by us and by Ms Grahame, about specific rows and their characterisation, Dr Mills said, at page 63 line 11 and following: ……….. to truncate further question from your good self if I can agree that I would agree that any of these sites or these rows that are on basalt in that location would have some remnants of that community, it's obvious. 30 To ascertain those rows that are on basalt in that location, Doctor Mills referred us to Table 1 - Vegetation of the Turbine Sites in his 2006 flora report on the original proposal. This table included a column headed geology and identified those rows where he considered that the underlying geology was basaltic. Those rows so identified by Dr Mills were rows 2, 3, 4, 5, 8, 9, 10, 11, 12 and 13. In addition, although Dr Mills did not identify row 6 as having basaltic soils, the parties have agreed that it should be incorporated in this condition.

31 Whichever rows are specified in the condition, we note that it requires precautionary investigation rather than limiting of works. Only if the preliminary investigation reveals the evidence of Tablelands Basalt Forest at a location impacted by construction of the windfarm does the condition require additional work or moving a turbine.

32 We have carefully reread the transcript of Dr Mills' evidence on this issue. We are not satisfied that the additional rows identified by him (as having basaltic soils in Table 1 - Vegetation of the Turbine Sites in his 2006 flora report) do not warrant the further precautionary investigation required by the condition.

33 As a consequence, the additional rows proposed by the Guardians should be included in the provisions of the new condition to give effect to this part of our decision.

Conclusion 34 We conclude that we have no evidence on which to base a requirement for a random noise testing regime which would be contrary to Preston CJ's decision. Moreover, we accept that such testing would not provide any useful information on whether the permissible noise levels in condition 42 were breached.

35 These circumstances would not have risen had the company provided relevant noise evidence during the course of the initial hearing of this modification application. It is not appropriate to rely on that earlier failure to seek to impose the testing regime of modest dimensions which we envisaged if that were to be futile, as we now accept on Mr Turner's uncontradicted evidence that it would be, or to impose a properly conducted random monitoring program compliant with the South Australian guidelines for monitoring which would have a significant probability of imposing a permanent and ongoing testing regime (being a proposition specifically rejected by Preston CJ in the original proceedings).

36 With respect to the other contested issue, concerning Tablelands Basalt Forest, we have reached the conclusion that the further rows proposed by the Guardians should be incorporated in the conditions.

The entry of orders 37 At the conclusion of the hearing, Mr Pickles submitted that we should not enter the orders because the company wishes to reserve the right not to take up the modified consent. We understand that this request is primarily based on the possibility that we might persist with a monitoring regime for noise on the basis discussed in para (93) of our August 2008 decision. As we accept that the company's now amended application incorporating revised noise conditions is the appropriate course to adopt in this regard, this concern may no longer exist.

38 However, there is a continuing appeal on foot, at least with respect to one element in our earlier decision concerning the Cushendall vineyard. Following the changes to the processes for the issuing of sealed copies of orders which came into effect on 1 December 2008 we do not need to direct that the orders not be entered (and indeed may not have the power to do so). However, pursuant to Part 36 rule 4(1)(b) of the Uniform Civil Procedure Rules 2005, we order that the further orders below are not to take effect until they are entered.

39 As a consequence, the orders of the Court (in addition to the order in (38) immediately above), are: 1. The appeal is upheld; 2. The Development Consent given by the Court on 12 February 2007 to Development Application 241/04 is modified by amendment of the conditions of consent as set out in Schedule 1; and 3. The Exhibits are returned

Dr John Roseth Tim Moore Senior Commissioner Commissioner of the Court

Replacing the description of the "Approved Development" on page 3 of the conditions of consent with the following description:

Construction and operation of a wind farm consisting of 61 x 1.5 - 3 megawatt turbines each consisting of a tower, nacelle and rotor with 3 fibreglass blades with a maximum overall height of 131.5 metres to the top of the rotor at its apex and a maximum rotor diameter of 103 metres and associated infrastructure, as described in the Taralga Wind Farm Environmental Impact Statement Volumes 1 and 2, prepared by Geolyse, dated November 2004 and as amended by the Applicant on 1 March 2005, 30 November 2007 and 7 August 2008, except as amended by these conditions.

Deleting the word "and" after the words "21 March 2005;" in condition 3(h).

Replacing existing condition 3(i) with new condition 3(i) as follows: (i) Modification Application lodged with the NSW Land and Environment Court on 30 November 2007 and accompanied by a report prepared by the Applicant titled Taralga Wind Farm Project: Application for Modification of Development Consent DA 241/04 granted by the NSW Land and Environment Court 23rd February 2007 pursuant to section 96(8) of the EP&A Act and dated 30 November 2007;

Immediately after condition 3(i) inserting the following conditions 3(j), 3(k) and 3(l) as follows: (j) Taralga Wind Farm Project: Application for Modification of Development Consent DA 241/04 granted by the NSW Land and Environment Court 23rd February 2007 pursuant to section 96(8) of the EP&A Act, Supporting information for hazard lighting and noise assessment , RES Southern Cross, dated 13 March 2008; (k) Amended application filed by the Applicant in Court on 7 August 2008; and (l) the Conditions of this Consent

Immediately after condition 8 inserting the following condition 8A as follows: 8A Notwithstanding conditions 4 to 8, the owners of the Cushendall Vineyard property and the owners of Lots 145 and 147 DP 750046 may request at any time during the three years and up to six months after the expiry of the period specified in condition 4, landscaping treatment on their property in accordance with the provisions outlined in condition 32 of this consent. If this occurs, and the works are carried out, the Applicant is not required to consider any request for acquisition of the property (or part thereof). This condition only applies where development consent or a complying development certificate has been issued up to three (3) years from commencement of Operation of the development for any dwelling to be constructed on these properties. Note: Complying development and complying development certificates are described in Division 3 Part 4 of the Act.

Deleting condition 24.
Replacing existing condition 32 with new condition 32 as follows: 32 Prior to the commencement of Operation, the Applicant must notify in writing: all owners of existing or approved residential dwellings with views of a turbine(s) that is located within two (2) kilometres of their dwellings; the owners of the St Ives dwelling; the owners of the dwelling at "Melrose", Barrett's Rd, Taralga - Lot 2 DP No 828288; and the owners of the dwelling at 48 Barretts Road, Taralga that they are eligible to have landscaping treatment on their property in order to minimise the visual impact of the development on their property. Any such owner may request the Applicant, no later than six (6) months after commencement of Operation, to investigate such ways of minimising the visual impact of the development on their property. The Applicant must: (a) within fourteen (14) days of receiving the request, commission a suitably qualified person whose appointment has been approved by the Director-General, to investigate reasonable and feasible measures to minimise the visual impacts of the development on the landowners' property using landscape measures; and (b) give the landowner a copy of the visual impact mitigation report within fourteen (14) days of receiving the report. If both parties agree on the measures that should be implemented to minimise the visual impact of the development, then a copy of the agreed measures is to be forwarded to the Director-General for approval within one month of agreement being reached.

If the Applicant and the landowner disagree on the landscape works, then either party may refer the matter to the Director-General for resolution.

Following the Director-General's approval, the Applicant must implement those measures with all landscaping being completed within three (3) months. 8) Immediately after condition 36 inserting the following condition 36A as follows:

36A No external lighting at night of any infrastructure associated with the operation of the project, including wind turbine generators, is permitted other than low intensity security lighting.

Deleting conditions 51, 52 and 53 including headings and replacing with new conditions 51, 52 53 and 53A as follows:

51 Within six months of operation, the Applicant must engage an independent acoustic consultant(s), who is to receive the prior approval of the Director-General, and to undertake a program of noise monitoring to test the noise emission performance of the development at the locations identified in condition 42 at times without notice to the Applicant (but only where the consent of the landowner has been provided to undertake the program). The program must include, but not necessarily be limited to: (a) noise monitoring and assessment generally in accordance with procedures outlined in the SA Guidelines; (b) assessment of the noise performance of the development against the noise limits specified in conditions 42 and where relevant, condition 43; (c) details of any complaints received during monitoring and assessment in relation to noise generated by the proposal; and (d) recommendations and a timetable for implementation for any Reasonable and Feasible additional measures necessary to ensure compliance with the relevant noise-related conditions of this consent. 52 Within 28 days of undertaking the noise compliance programs referred to under condition 51 of this consent, the Applicant shall provide the Director-General, each landowner on which the program was carried out and make publicly available a report prepared by the acoustic consultant(s) on the results of the program. If the noise monitoring report identifies any non-compliance with the noise limits specified under this consent, the Applicant shall detail what additional mitigation measures would be implemented to ensure compliance, clearly indicating who would implement these measures, when these measures would be implemented, and how the effectiveness of these measures would be measured and reported to the Director-General.

Additional mitigation measures shall include, in the first instance, all Reasonable and Feasible source control measures to reduce noise emissions from the development (such as sector management). Once all Reasonable and Feasible source controls are exhausted, mitigation measures may include offering building acoustic treatments and/ or noise screening to affected residents, but may only be used to address noise limit exceedances at the absolute discretion of the relevant landowner. The Applicant shall also demonstrate that the relevant landowner has been made fully aware of the noise levels and other implications of making any agreement 53 Following consideration of the outcomes of the noise compliance program referred to under condition 51 of this consent, the Director-General may require the Applicant to implement additional noise mitigation, monitoring or management measures to address noise associated with the development. The Director-General may require any or all of the measures proposed by the Applicant in the noise compliance report(s), or other measures considered appropriate by the Director-General to be implemented having regard to the SA Guidelines (2003). The Applicant shall implement the measures required by the Director-General within such period as the Director-General may specify.

86A The Applicant must design, construct, operate and maintain the development in a manner that either avoids damage to and/or loss of the Tablelands Basalt Forest Endangered Ecological Community or provides suitable compensation for its loss.

To ensure compliance with this condition, the Applicant must engage a suitably qualified person(s) who must receive prior approval of the Director-General, to undertake a detailed survey of: · all turbine rows other than row 8; and · all access roads required during construction or upgrading, to determine the presence of this community so as to enable the Applicant, in consultation with the DEC and the Department, to: (a) relocate that component of the development (including construction components) at least 50 metres from important stands of this community, but no more than 250 metres from the original location of that component; or (b) provide suitable compensation for the loss of the community where the Applicant is unable to avoid damage to and/or loss of the community. Construction of the relevant component(s) of the development must not commence until the Director-General has confirmed the results of the survey and approved the position of any relocated development component or compensation works, as relevant. Note: The Tableland Basalt Forest in the Sydney Basin and South Eastern Highlands Bioregions Endangered Ecological Community "Tableland Basalt Forest" is defined under the Threatened Species Conservation Act, 1995.

Immediately after condition 90 inserting the following condition 90A as follows:

90A Turbines at row 6 and any turbines located within the vicinity of any Tableland Basalt Forest EEC that have the potential to impact upon this community, must be constructed using the modified technique described in section 2.5.5 of the EIS to minimise disturbance or damage to vegetation. Details of the modified technique are to be described in the CEMP. 12) Immediately after item 2 in Schedule 2, adding the following properties as follows:

Cushendall Vineyard property, described as Lot 1 in Deposited Plan 773412 4. Sassine property, described as Lots 145 and 147 in Deposited Plan 750046

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : RES Southern Cross v Minister for Planning and Taralga Landscape Guardians Inc. [2009] NSWLEC 1034

RES Southern Cross v Minister for Planning and Taralga Landscape Guardians Inc. [2008] NSWLEC 1333 CASES CITED: Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd (2007) 161 LGERA 1; [2007] NSWLEC 59 RES Southern Cross Pty Ltd v Minister for Planning and Anor [2008] NSWLEC 332

2 RES Southern Cross Pty Ltd ("the company) has appealed against our decision in pursuant to s 56A of the Land and Environment Court Act 1979 on a number of grounds. A first hearing of this appeal has been held and resulted in an initial determination by Biscoe J (see RES Southern Cross Pty Ltd v Minister for Planning and Anor [2008] NSWLEC 332) which determination has the effect of sending the issue of the terms of a noise condition back to us for further consideration. The reasons for this are set out in Biscoe J's decision but, in short, might be summarised as being because we had not settled the conditions of consent in our decision but had requested the parties to the proceedings to meet and agree on how the matter of principle discussed in our 2008 decision might be implemented.

At a glance

Court

Decision date

Before

Source

Judgment (58 paragraphs)

Parties

Cases Cited (5)

Cited By (1)