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

(b) at which the predicted noise level exceeds the relevant base noise level for wind speeds (V10m) of 10 m/s or less

(c) that are representative of the worst case situation when considering the range of premises, e.g. a house located among a group of nearby houses within a residential zone": Part 3 Background Noise - 3.1 Background noise measurement locations at 5.

212 A receiver is defined by the SA guidelines as follows:

"Receiver: premises that may be affected by the noise source, other than premises on the same land as the noise source": Glossary at 17.

213 The exclusion of premises on the same land as the noise source is relevant to understanding the approach taken by these guidelines to associated properties.

214 The guidelines specifically set out the reasons why associated properties are excluded from the more stringent approach to the assessment of noise impacts from a windfarm proposal. They do so in the following terms:

Wind farm developers commonly enter into agreements with the owners of private land suitable for a windfarm site. The agreement provides the windfarm developers with the appropriate siting and generally provides the landowner with a level of compensation and diversity in their income stream. The criteria have been developed to minimise the impact on the amenity of premises that do not have an agreement with windfarm developers.

Notwithstanding this, the EPA cannot ignore noise impacts on the basis that an agreement has been made between the developer and the landowner. Developers cannot absolve themselves of their obligations under the Act by entering into an agreement with a landowner.

If it is shown that a development is having an 'adverse effect on an amenity value of an area that ... unreasonably interferes with ... the enjoyment of the area' then appropriate action can be taken under the Act.

However, the existence of an agreement will affect the consideration of whether the interference is unreasonable in a given situation. It is unlikely that there will be unreasonable interference if:

(a) a formal agreement is documented between the parties

(b) the agreement clearly outlines to the landowner the expected impact of the noise from the windfarm and its effect upon the landowner's amenity

(c) the likely impact of exposure will not result in adverse health impacts (e.g. the level does not result in sleep disturbance)": at 3 and 4.

215 The SA guidelines set a noise night time limit of 35 dB(A) for new windfarm development in a rural location. The basis of this is described in the following terms:

The Environment Protection (Industrial Noise) Policy 1994 limits the noise level from non-domestic noise sources including windfarms to 40 dB(A) or the lowest typical background noise level plus 5 dB(A) (whichever is the greater) in rural areas from 2200 hrs until 0700 hrs the following day.

This limit applies to existing noise sources and does not necessarily reflect the preferred noise criterion for new (planning) development. The general approach for new development applies a night time level of 35 dB(A) to significant development in a rural location": at 3.

216 The definition of base noise level is in the following terms:

"Base noise level: means an LAeq,10 of 35 dB(A) unless otherwise stated": Glossary at 17.

217 The SA guidelines make it clear that the noise levels set were to take account of annoying characteristics of wind turbine noise.

These guidelines have been developed with the fundamental characteristics of noise from a windfarm taken into account. These include the aerodynamic noise from the passing blades (commonly termed 'swish') and the infrequent and short-term braking noise.

However, annoying characteristics that are not fundamental to a typical windfarm should be rectified. Such characteristics may include infrasound (low frequency noise below the audible frequency range that manifests as a rattle in lightweight materials such as glass) or adverse mechanical noise (perhaps generated as a failure of a component)": at 13.

218 The Guardians say that RES Southern Cross cannot comply with the 35 dB(A) limit.

219 However, RES Southern Cross accepts that it should be required to meet the 35 dB(A) standard at existing non-associated dwellings. Mr Liebmann gave evidence on behalf of RES Southern Cross that it could and would meet the 35 dB(A) standard. I accept that it is feasible for the windfarm to meet the standard.

220 It is long settled in this Court that there is a presumption that those who are given development consent subject to conditions will satisfy those conditions. There is no other basis upon which I can proceed.

221 If the holder of a development consent or the holder's successors in title do not meet the conditions of that development consent, statutory provisions exist to require compliance. If they are so required to comply and they are unable to do so, then the activity breaching the conditions must cease.

222 RES Southern Cross is clearly aware of and accepts that position.

223 In the Court's consideration of noise issues, evidence was given by Dr Tonin, a court-appointed acoustic expert, and by Dr Van den Berg, an acoustic expert on behalf of the Guardians. Toward the end of the proceedings, the Court also had the advantage of evidence from Mr Turner, the author of the SA guidelines. Their evidence was in writing, in joint reports and in concurrent oral evidence including by video link on two occasions with the Netherlands.

224 Two matters of significance require determination with respect to noise generated by the proposal. The first is whether the SA guidelines are appropriate to be applied. The second is what penalty, if any, should be applied to the permitted noise level, however derived, as a consequence of the discovery by Dr Van den Berg of the eponymous Van den Berg Effect.

225 The Council accepts that the SA guidelines are the appropriate regulatory framework for noise. This is clear from the provisions of cl 8(c) of the DCP which specifically requires compliance with them.

226 The SA guidelines, themselves, acknowledge the existence of a New Zealand Standard and explains the differences in approach as follows:

"The New Zealand Standard NZS 6808 sets the predicted base level (LAeq) at 40 dB(A). This is higher than the approach of these guidelines, but the specified propagation model to be used in accordance with that standard does not account for factors such as ground absorption and topography effects that can substantially reduce the noise level in practice. In addition, the New Zealand Standard requires the criteria to be met at all receivers, regardless of their relative amenity or relationship with the windfarm development": at 2.

227 As earlier noted, the New South Wales EPA has, itself, applied the SA guidelines in lieu of its own industrial noise standards.

228 The SA guidelines should be used for the purposes of noise assessment of this proposal, both because they are sound and to ensure a consistent policy approach. Reaching that conclusion also deals with one issue of difference between the parties as to conditions of consent where the Guardians had proposed a shift from the SA guidelines.

229 The Van den Berg Effect is an additional noise modulation described as a thumping noise which occurs, in limited circumstances, as a consequence of a temperature inversion between the tip of the rotor when it is at its most upward extension and the tip of the rotor when it is at its most downward extension.

230 As a consequence, the Van den Berg Effect is likely to occur on cold, still, winter nights. There was no specific agreement that the Van den Berg Effect would be caused by this windfarm but it is accepted as reasonably possible that it might be so.

231 The Guardians say it is sufficiently probable, on Dr Van den Berg's evidence, that the Van den Berg Effect will occur and thus the operating conditions for the proposal should take it into account.

232 They say that taking the Van den Berg Effect into account has two consequences. The first is that, if it occurs, there should be a 5 dB(A) penalty applied to lower the permitted noise level and thus eliminate the annoyance caused by the Van den Berg Effect.

233 The second is that a monitoring regime should be established and operated over a significant period of time in order to determine the precise circumstances under which the Van den Berg Effect occurs (if it does occur). The consequence of gathering such monitoring data would be that a restrictive management regime could be established to cause automatic shutting down of turbines which were known to be causing the Van den Berg Effect when the conditions for its occurrence arose.

234 It was Mr Turner's evidence that, although the Van den Berg Effect was not known at the time of his drafting of the SA guidelines, he had adopted a very cautious approach in order to accommodate the impacts of any and all noise effects caused by windfarms.

235 If the Van den Berg Effect were to occur at this windfarm, the non-associated houses that would be impacted would be H1, H5, H7, H12 and The Farm.

236 I am satisfied that the approach which the Court should take to this issue is one involving two steps. Neither of them requires me to determine whether or not I am satisfied that the Van den Berg Effect will actually occur or whether a penalty should be imposed for it (if it did occur).

237 The first step is to determine whether or not it would be reasonable to require the extensive monitoring regime which would be necessary to determine whether the Van den Berg Effect did exist and to respond to it, on an ongoing operational basis, if it did so.

238 I am satisfied that the combination of the low probability of occurrence of the Van den Berg Effect, the small number of houses which would be impacted and the infrequent occasions when it did occur (if it did occur), does not warrant the extensive monitoring proposed.

239 However, the second step is a corollary to this determination. That corollary is that it would not be unreasonable to take a precautionary approach to that possibility. Although there is an infrequent likelihood of occurrence of the Van den Berg Effect, it is not able, on the evidence, to be dismissed out of hand. However, when it did occur (if it did occur), as earlier noted, it would probably be on a cold, still, winter's night and it is unlikely that people will be outside their dwellings under such circumstances.

240 Therefore, the possible impacts against which it is reasonable that I consider amelioration are those on occupants within dwellings on such cold, still, winter's nights.

241 "The facade effect" is the effect of the exterior walls of dwellings (in this instance) on reducing the transmission of exterior noise to the interior rooms. The facade effect benefits are obtained even when there are windows left open. The evidence of the noise experts was that the facade effect usually achieved a mitigation of 10dB(A) for the interior of a dwelling.

242 Dr Tonin gave evidence that some additional ameliorative measures to enhance the sound suppressing facade treatment of the potentially affected dwellings would be possible. This would increase the noise mitigation beyond 10dB(A) for the interior of these dwellings. It is appropriate that RES Southern Cross should offer this to those five houses. The conditions are also to be amended to provide for this. Such a facade treatment could have, on Dr Tonin's evidence, the same (and immediate) practical effect as the imposition of a penalty sought by the Guardians but in a much more pragmatic way.

243 The composite noise map provided by the Guardians shows that noise levels at the Ross house will not comply with the SA guidelines.

244 I am satisfied that the likelihood of this non-compliance, when coupled with the severe visual impact of the proposal on the Ross property, renders these impacts unacceptable. It is therefore appropriate to provide Mr and Mrs Ross with the option of requiring RES Southern Cross to purchase their property. The conditions are also to be amended to provide for this.

245 Two options have been presented as a basis for such purchase by RES Southern Cross. The first, a conventional one used in other private development circumstances such as mines, is being proffered by the Minister. The second is one which would impose an acquisition regime analogous to that in the Land Acquisition (Just Terms Compensation) Act 1991 .

246 As earlier noted when dealing with the concept of blight, although there is a significant public interest element in this proposal, it is not, in itself, a public proposal. I do not consider that it is reasonable to impose the more onerous regime which has been accepted, on public policy grounds, as appropriate for public project acquisitions, to be applied in this instance.

247 Although I accept that this obligation for acquisition of the Ross property was not adopted by RES Southern Cross, I do not understand that this conclusion is vigorously resisted for this property.

248 The composite noise map provided by the Guardians shows that noise levels at this property will not comply with the SA guidelines. However, as earlier noted, this property does not have an existing dwelling.

249 As discussed earlier, there would be a significant visual impact on any dwelling proposed to be constructed at RES Southern Cross's hypothetical dwelling location on this property.

250 Although RES Southern Cross said that such a dwelling could be shielded from the noise by appropriate design restrictions and protected from the visual impact by enclosing landscaping, such a necessarily inward looking dwelling and dwelling curtilage would quite radically restrict the amenity of any residents of such a dwelling and be inconsistent with the nature of a rural (in contrast to an inner city) dwelling.

251 Curing the noise and visual impacts of any such dwelling might be possible by the removal of a significant number of turbines from the proposal. It is clear from Mr Liebmann's evidence that such a cure would likely render the proposal unviable.

252 This property and the Ross property are the two properties which are most severely impacted, as to the ability of persons resident on them to have an appropriate level of day-to-day amenity. The affectation of these two properties is quite significantly greater than that on any of the other properties in the vicinity of the proposed windfarm.

253 Although resisted by RES Southern Cross, I am satisfied, on balance, that this property should also be subject to the option for its owner to require acquisition by RES Southern Cross on the same basis as for the Ross property. The conditions are also to be amended to provide for this.

254 Although the Guardians raised the issue of the adequacy of the surveys for the orchid and for the native grassland, the evidence given by Dr Smith, the Court-appointed flora expert, and Dr Mills, RES Southern Cross's flora expert, resulted in an agreed position which resolves these issues.

255 That agreed resolution involves the requirement of further survey work to identify whether or not either the orchid or the native grassland in fact exists on land to be disturbed by the windfarm. There is agreement as to when these surveys should be carried out and where they should be carried out.

256 If either the orchid or the native grassland is found to occur at a location where it would be impacted by any element of the windfarm, such element is to be relocated and the area containing either the orchid or the native grassland is to be fenced off during construction.

257 The conditions of consent deal with such relocation and fencing.

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.

268 However, I noted in the hearing that there were two potential ways of requiring RES Southern Cross to bear the cost of such mortality. These are fining for each eagle death (the approach in Tasmania) or requiring a compensatory payment for each eagle death (the approach in Victoria). I consider that the adoption of imposition of such a cost on RES Southern Cross, whilst it might be regarded by some is merely symbolic, is an appropriate course to follow.

269 It adopts a "polluter pays" approach to environmental harm. It results in the environmental costs of the loss of biota being internalised by the person that is a cause of that loss.

270 Although selection of a monetary figure is somewhat arbitrary, I consider that $1,500 per eagle killed would be an appropriate compensatory payment to be made by RES Southern Cross. In order to ensure that there is some linkage between such compensation and likely positive future outcomes for the species, such payment should be made to the NSW Wildlife Information and Rescue Service within one month of RES Southern Cross becoming aware of such a death. The conditions are to be amended to incorporate such a provision.

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.

277 The Striped Legless Lizard and the Grassland Earless Dragon, if present, would utilise the native grassland as their habitat. It was the evidence of Dr Meredith and Mr Lane, the relevant fauna experts, that the appropriate, earlier described resolution of the native grassland issue also resolved the issue of habitat of these reptiles.

Other matters concerning the conditions not earlier dealt with

278 As earlier noted, RES Southern Cross seeks consent to increase the maximum power of the generator permitted in the nacelle of each of the turbines from 2.0 MW to 3.0 MW. Such alteration does not increase the size of the nacelle and does not increase the amount of noise generated from such a turbine.

279 Although this is opposed by the Guardians, the only possible reason for their doing so would be to reduce the potential economic viability of the project as there are no discernible external impacts arising from such a change.

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.

284 The Court raised matters relating to the time period for reaching agreement to, and implementation of, such works. Landscaping of individual properties could be delayed for up to 18 months after the commencement of operations.

285 This is not reasonable. There appears to be no good reason why all off-site landscaping planning needs to be finalised, for all of the properties which might seek it and who are eligible for it, before any element of such landscaping could be undertaken.

286 This could be accommodated by removing the need for a single off-site landscaping plan and having the condition contemplate that individual off-site landscaping plans might be agreed with each relevant landholder.

287 Such an off-site landscaping plan for an individual property should be required to be submitted to the Director-General for approval within one month of agreement being reached between RES Southern Cross and the individual landholder.

288 Unless the Director-General objects to the provisions of such a plan within one month of its submission, it should be implemented within a further three months.

289 The remaining general timetable for landscaping, including road reserve landscaping, should remain. The conditions are to be amended to reflect my conclusions on landscaping.

290 The Court raised, during the course of the proceedings, the issue of the public availability of information which was required to be provided by RES Southern Cross arising out of the conditions of consent. In response to this concern, the Minister now proposes a condition which would read:

"Subject to confidentiality, the Applicant must make all relevant documents required under this consent publicly available, including provision of all documents at the site for inspection by visitors."

291 The concept of availability for inspection at the site is desirable and should be retained.

292 However, the preferable approach to the availability of documents is for the parties to go through the settled conditions and identify the clauses containing documents which are to be publicly available and include a list of these documents as a schedule to the conditions.

293 I would expect that, in any consideration by the parties of what documents should be included in that schedule, the approach to be taken is one with a presumption in favour of availability rather than one of a presumption in favour of restriction of access to that information. In the event of any dispute about public availability of documents arising from a particular condition, this can be returned for my determination.

294 Finally, on this issue, it is appropriate that RES Southern Cross provide a copy of all these documents to the public by lodging them for display at the Council's library in Crookwell. The definition of "Publicly Available", in the conditions, should be amended to note this availability at the Crookwell library.

295 The condition requiring a site sign should not refer to a location in general terms but should specify where this is to be located. Although I do not have a strong preference, a location next to the Bannaby Road in the vicinity of the northern end of Row 8 would appear preferable.

296 The present dictionary to the conditions contains a definition of "Operation". It is in the following terms:

"Any activity at the site that occurs within three months of the commencement of commissioning, unless otherwise agreed to by the Director-General, and that results in the production, or intended production of electricity for contribution to the electricity grid."

297 The Guardians seek the deletion of the three month delay and the removal of the Director-General's discretion. Although I have not had any submissions on this and these changes are rejected by the Minister, they do not appear unreasonable. The conditions should be amended to reflect this, unless the parties are unable to agree that this is acceptable. If no agreement is reached, the matter can be returned for argument.

298 The Guardians also seek to have the definition of "SA Guidelines" amended to ensure that they remain referred to as the guidelines in existence at the time of giving this consent. This, obviously, seeks to guard against these guidelines becoming more permissive in the future.

299 Prima facie, this does not appear unreasonable. The conditions should be amended to reflect this.

300 The Guardians seek two changes to this condition. The first is merely to the language without significant change to the substance. Both the proposed and the existing versions of this condition can be improved by substituting the words "the applicant has satisfied" for the words "the applicant has indicated to the satisfaction of".

301 The more substantive change sought is to limit, from five years to three years, the period within which RES Southern Cross is required to obtain a consent for connection to the electricity grid. I reject this as it may be that a quite lengthy approval process will be required for this connection and no valid reason, other than the removal of uncertainty, can be inferred to support such a change. Whilst there is undoubted merit in the limitation of uncertainty, the public interest demands that a reasonable period be allowed for the obtaining of this approval for connection to the electricity grid.

302 The Guardians seek a technically complex amendment to this condition which would alter the basis of assessment and collection of pre-existing background noise levels. Although there were two international video links involving the acoustic experts and joint conferencing of the experts, this proposed condition was not dealt with during any of the oral or written evidence from the acoustic experts.

303 I have no evidentiary basis upon which I can assess the merits or otherwise of what is proposed. I must, therefore, reject these proposed changes.

304 The present condition dealing with shadow flicker reads:

"Shadow flicker from the development must not exceed 30 hours/annum at any residence not associated with the development."

305 The Guardians seek to add a sentence to this condition which reads "Turbines that exceed 30 hours/annum must be decommissioned."

306 I did not understand from the evidence that there is any basis to assume that excessive shadow flicker, if it were to happen, will necessarily arise from a single identifiable turbine or group of turbines. I have, therefore, no evidentiary basis upon which to impose this addition to the condition.

307 The Guardians seek to add two additional permanent noise limit compliance locations. One of them, "Cloverlee", has been rendered redundant by my decision with respect to its overall level of affectation. With respect to Cushendall, I am not prepared to extend the SA guideline requirement for compliance at existing dwellings to the location of a future dwelling at the vineyard. This matter is appropriately dealt with when considering noise mitigation measures on vacant allotments which have a dwelling entitlement.

308 The second amendment to this condition which is sought by the Guardians is to account for the possibility that H7 may become associated with the development. It would require that an alternative compliance location be agreed to by the Director-General to replace H7. This is also apparently designed to address questions arising out of the construction of a dwelling at the Cushendall vineyard. Given my conclusion immediately above with respect to the vineyard, this change is unnecessary.

309 The Guardians seek the addition of the requirement that "the monitoring tower should be representative for one of the receiver locations mentioned in condition 37".

310 This requirement is not inherently unreasonable. It is desirable for the parties to seek agreement on appropriate wording to reflect what is sought.

311 The combined effect of the terms of 2.2 and 3.1 of the SA guidelines is that the 35dB(A) limit in the SA guidelines applies only to locations of dwellings existing at the time of approval of a windfarm proposal or to locations where there is development approval to build a residential dwelling at that time. In the present circumstances, there would be no requirement, if I were merely to follow the regime in those guidelines, to impose any limit on noise at future dwellings where there is no present approval.

312 Such a presently unapproved dwelling, if proposed in the future, might be regarded as "coming to the existing nuisance" and thus not be entitled to any protection.

313 However, I am satisfied that some measure of protection is appropriate despite the absence of such protection arising from terms of the SA guidelines.

314 This view is shared by the Minister who originally proposed a condition dealing with noise mitigation on vacant lots. The Minister's condition was in these terms:

"Where reasonable and feasible, noise mitigation measures are to be provided by the Applicant for no more than one new dwelling, built on any vacant parcel of land legally existing at the date of this consent, (upon which a residential dwelling would be permissible at the same date), as identified in Schedule 3 of this consent. Noise mitigation is to be provided if the noise levels from the development at the approved location of the new residential dwelling would exceed the noise limits recommended in the SA Guidelines."

315 RES Southern Cross has proposed a number of amendments to this condition so that it would read:

"Where reasonable and feasible, physical noise mitigation measures are to be provided by the Applicant for no more than one new dwelling, built on any vacant parcel of land legally existing at the date of this consent, (upon which a residential dwelling would be permissible at the same date), as identified in Schedule 3 of this consent. Noise mitigation is to be provided if the noise levels from the development at the approved location, where the location of the dwelling has been optimally sited to avoid potential noise impacts, would without mitigation exceed the noise limits recommended in the SA Guidelines. The mitigation measures should achieve a noise level [of] LAeq of 30dB(A) inside the habitable rooms of such a dwelling."

316 The Guardians seek alterations to this amended version of the condition.

317 The first change sought by the Guardians is to delete the requirement, at the commencement of the condition, for reasonability and feasibility for any mitigation measures which are necessary. I am certainly not prepared to require such a deletion for the obvious reasons.

318 The second change sought by the Guardians is to delete the requirement that such mitigation measures be "physical". Whilst the insertion of this word in the condition by RES Southern Cross may have been unnecessary (as it is difficult to imagine what other types of mitigation measures may be available), it is preferable to leave the requirement.

319 The third change sought by the Guardians is to insert the words "as required by the Director-General" after the words "mitigation measures" at the commencement of the condition. Given the conclusion I have reached about the basis of determining what allotments should have the benefit of this condition and my acceptance of RES Southern Cross's proposal for a measurable and mandated outcome for such mitigation works (discussed below), such a requirement for a determination by the Director-General is rendered unnecessary.

320 The fourth category of changes sought by the Guardians is one which would appear to preserve an entitlement to mitigation for new dwellings in subdivisions or in replacement of existing dwellings (by inference, if such replacement were to be at a noisier location than the existing dwelling).

321 Although there were submissions made as to where future development potential might lie and what might be the consequences of it, there was no agreement between the parties on this topic.

322 Given my earlier determination about blight, I am not prepared to approve an unlimited and speculative provision in this regard.

323 The fifth change sought by the Guardians is the deletion of the proposal by RES Southern Cross that any such new dwellings be "optimally sited to avoid potential noise impacts" before they could attract an entitlement to ameliorative measures. RES Southern Cross proposal seems to me to be an unreasonable restriction on the owners of vacant allotments. In addition, it could result in dwellings being sited at locations that are unacceptable for other reasons. Therefore this change sought by the Guardians is appropriate. However, siting issues may be matters which could be considered, pursuant to s 79C of the Act, on any development application for a potentially impacted dwelling.

324 The sixth change sought by the Guardians is the deletion of the words "without mitigation". Given my acceptance of the appropriateness of a measurable and mandated outcome for mitigation works arising out of this condition, such a requirement is inappropriate.

325 The seventh (and, perhaps, most substantive) change sought by the Guardians is the deletion of the specification of the degree of noise mitigation to be provided at any dwelling which would become entitled to such mitigation by virtue of this condition.

326 The Minister's originally proposed condition impliedly might have required the mitigation measures to achieve compliance with the SA Guidelines (although this was not expressly clear, as can be seen from the terms of the original proposed condition).

327 RES Southern Cross seeks to specify what is to be achieved by such mitigation measures. It proposes that the mitigation measures should achieve a noise level of LAeq of 30dB(A) inside the habitable rooms of such a new dwelling when, without mitigation, the SA Guidelines would be breached (if they applied to new dwellings).

328 As earlier noted, the evidence of the noise experts was that the facade effect achieved a mitigation of 10dB(A) for the interior of a dwelling, this proposal would, effectively, provide for a 5dB(A) increase for such dwellings above that provided by the SA guidelines for existing dwellings or sites with existing approvals.

329 However, having considered the composite noise map provided by the Guardians, I am satisfied that the mitigation measures to ensure compliance with the SA guidelines for new dwellings may impose an unreasonable restriction on the windfarm.

330 The RES Southern Cross position generally represents a reasonable compromise between adopting the SA guidelines position of leaving future dwellings unprotected and the imposition of a regime which was not intended to be applied to such locations.

331 The RES Southern Cross position is, therefore, accepted. However, to assist lay readers of this condition, the wording could be improved by substituting "are to" for "should" (see (317)).

332 The final area of dispute concerns what properties are to be listed on the proposed Schedule 3 to the conditions of consent. The Minister and RES Southern Cross propose that the benefit of this condition be limited to "Cloverlee" (Mr Kerridge's property) and "Cushendall Vineyard" (the Miskelly property). The Guardians seek an expanded list to include seven other properties.

333 As earlier noted, there was no agreement between the parties as to where future development potential, including existing dwelling entitlements, might lie.

334 I have already determined, in dealing with the Guardian's proposal for compensation for "blight", that monetary compensation for loss of some possible future subdivision development right was not appropriate for the reasons there set out. I have also rejected as inappropriate, creating an unlimited and speculative entitlement to mitigation for new dwellings in subdivisions or in replacement of existing dwellings. As a consequence, the benefit of this condition should be limited to one new dwelling which might be built on an existing vacant parcel of land and upon which a residential dwelling would be permissible at the date of the consent.

335 If no properties were listed in a schedule, the condition provides four tests before a single new dwelling could become entitled to mitigation measures. As a consequence, to obtain the benefit of the condition, such a dwelling must:

2. be on a parcel which is legally existing at the date of the consent;

3. be permissible on the parcel at the date of the consent; and

4. at its proposed location, without mitigation, exceed the noise limits recommended in the SA Guidelines.

336 In addition, such a condition should not apply to any parcel of land which, at the time of the consent, forms part of an associated landholding.

337 Each of these is a matter amenable to objective determination in any instance. Any such dwelling, prima facie, should be entitled to the protection called up by this condition.

338 Even if a proposed dwelling satisfied all of these tests, it would still be subject to assessment against the criteria called up by s 79C of the Act before it received approval and actually became entitled to mitigation measures.

339 I therefore consider that the appropriate course is not for me to make an assessment of whether or not any individual property might be appropriate to be listed in a schedule to these conditions but to leave the question to be determined, on a case by case basis, through the process outlined above.

340 However, the obligation on RES Southern Cross created by such a condition cannot be an open ended one and cannot be one where RES Southern Cross has no opportunity to make submissions to the Council about any application which would trigger such mitigation works. As a consequence, entitlement to such measures should only arise when a development application for a potentially entitled dwelling is lodged with the Council within five years of the date of commencement of commissioning and a copy of the development application is provided to RES Southern Cross (or any successor in title to RES Southern Cross during such five year period) within 28 days of its lodgment with the Council.

341 As a consequence, this condition should now read:

"(a) Where reasonable and feasible, physical noise mitigation measures are to be provided by the Applicant for no more than one new dwelling, built on any vacant parcel of land legally existing at the date of this consent, not part of an associated landholding at that date, and upon which a residential dwelling would be permissible at the same date. Noise mitigation is to be provided if the noise levels from the development at the approved location of the new residential dwelling would, without mitigation, exceed the noise limits recommended in the SA Guidelines. The mitigation measures are to achieve a noise level of LAeq of 30dB(A) inside the habitable rooms of such a dwelling.

(b) This condition only applies to new dwellings for which a development application is lodged with the Council within five years of the date of commencement of commissioning and where a copy of the development application is provided to RES Southern Cross (or any successor in title to RES Southern Cross during such five year period) within 28 days of its lodgment with the Council".

342 The Guardians seek to restrict the permitted extent of relocation of any component of the development to 100 m, should the native grassland or the orchid be found. They also seek that the consequence of any greater relocation being needed is that that element be deleted. The present proposed condition would permit a maximum relocation of 250 m and permit an application for modification if a greater relocation were to be required.

343 The present terms should be retained and the Guardian's proposed change rejected. I am satisfied, from the site inspection and a consideration of the topographic map, that a 250 m relocation of any of the elements is not unreasonable.

344 If such relocation cannot be accommodated within a 250 m radius of the original location, a modification application can be made under s 96 of the Act to modify the condition to allow relocation within a greater distance. This will enable an assessment, at that time, of any possible impacts of a greater relocation. This is an entirely sensible approach. In addition to any merit matters concerning a relocation of more than 250 m, such a modification application would also trigger the assessment of whether the modified development would be substantially the same development as that originally approved - that being the threshold test under s 96 of the Act for such modification to be permitted.

345 The Guardians seek to change the timing of the preparation of this programme to make it part of the Operational Environmental Management Plan. It would appear that the effect of such a change would require the bringing forward of finalisation of the Operational Environmental Management Plan to "prior to the commencement of construction". I can see no reason why this should be the case.

346 The Guardians seek a change which would appear to limit the ability of RES Southern Cross to make third-party payments for aerial weed control or fertiliser application. I can see no reason why this should be the case given that such weed control or fertiliser application can only take place on any surrounding property with the consent of the owner of the property.

347 The Guardians seek to impose or alter a number of aspects of the Director-General's role.

348 These changes are opposed by the Minister. The submissions made on his behalf, in this regard, in the following terms:

"They impose an unnecessary administrative burden on the Director-General. The proponent is required to enter into satisfactory arrangements in order to comply with the conditions, including the submission of compliance reports to the Department. These matters are ancillary to the development and, if they are not met, RES Southern Cross will not be complying with the conditions of consent."

349 I accept the Minister's submission, on this, as reasonable.

350 The Guardians seek that RES Southern Cross provides security for future decommissioning. The present conditions enable decommissioning to be subject to the lease arrangements between RES Southern Cross and the owners of the various associated properties. I have no evidence of what those arrangements might be. It is conceivable that the burden of decommissioning might fall on the owner of an associated property rather than on RES Southern Cross.

351 The effect of the present condition is that the Director-General must be satisfied that adequate provisions have been made for decommissioning to occur as and when required. If the Director-General is so satisfied, then I can see no reason why I should go behind that satisfaction and require RES Southern Cross to provide security for something about which the Director-General is otherwise satisfied.

352 It follows from what has been set out in this decision that I am satisfied that the overall public benefits outweigh any private disbenefits either to the Taralga community or specific landowners.

353 I am also satisfied that there is no rational basis upon which to require the deletion of any of the turbines originally proposed and thus I am satisfied that the full original scope of the windfarm should be permitted.

354 Amendments to the conditions will need to be settled between the parties to reflect the specific findings set out above.

355 I indicate that, once the conditions are settled, I will make orders upholding the appeal and granting development consent to Development Application 241/04 to construct and operate 62 wind turbines each consisting of a 65 m tower, nacelle and 3 x 45 m long fibreglass blades, associated access tracks, transformer units, electrical substation and control building, network of electrical connections linking each turbine to the electrical substation and a TV re-transmitter tower.

356 As the conditions of consent will need to be modified in light of the various matters set out in this decision, I direct that the parties settle and file, by 4.00pm on Friday 16 February 2007, agreed conditions to reflect this decision.

357 Those conditions are to be filed electronically in accordance with Practice Direction 2 of 2005 and a separate Court e-mail sent notifying of the filing. If this is done, orders will be taken out to give effect to this decision.

358 If the parties are unable to agree on the terms of those conditions, the parties are to file short written submissions on matters in dispute by 4.00pm on Wednesday 21 February 2007 and the matter is re-listed before me at 9.00am on Friday 23 February 2007 for the purpose of resolving any disagreements on wording of the conditions. **********

THE ORDERS OF THE COURT AND THE CONDITIONS OF CONSENT

2. Development Consent dated 17 January 2006, given by the Minister for Planning pursuant to s 80 of the Environmental Planning and Assessment Act 1979, to Development Application 241/04 is varied so as to permit construction and operation of 62 wind turbines each consisting of a 65 m tower, nacelle and 3 x 45 m long fibreglass blades, associated access tracks, transformer units, electrical substation and control building, network of electrical connections linking each turbine to the electrical substation and a TV re-transmitter tower at various locations on properties known as "Circle C", "Greenhills", "Killarney", "Montrose", "Rossville", "Selection", "Summerlea", "The Meadows", "Tyrol" and "Woolbrook" and a parcel of vacant Crown land (totalling about 3,830 hectares and all located between about 3 km and about 7 km east of the village of Taralga) subject to the conditions in Annexure A; and

3. The exhibits, other than Exhibits B, AJ, M11, M26, M27, M28, M32 and P6, are returned.

Approved Development: Construction and operation of a wind farm consisting of 62 x 1.5 - 3 megawatt turbines 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, except as amended by these conditions.

GENERAL CONDITIONS 6 Deferred Commencement 6 Scope of Development 6 Land Acquisition 7 Provision of Documents 8 Statutory Requirements 8 Provision and Protection of Public Infrastructure 8 Compliance 9 Construction and Part 4A Certification 10 Environmental Monitoring 11 Environmental Impact Audits 11 Annual Performance Reporting 12 ENVIRONMENTAL MANAGEMENT 12 Construction Environmental Management Plan 12 Operational Environmental Management Plan 13 Environmental Representative 13 COMMUNICATION AND CONSULTATION 14 Complaints Management System 14 Community Information Plan (CIP) 14 VISUAL AMENITY 15 Landscaping Requirements 15 Lighting 16 Shadow-flicker 16 NOISE AND VIBRATION 16 Construction Noise and Vibration Management Sub Plan 16 Operation Noise and Vibration Management Sub Plan 17 Construction 17 Operation 18 Noise Compliance 19 Noise Mitigation - Vacant Lots 20 Blasting and Vibration 20 TRAFFIC 21 Traffic Management 21 Road Occupancy 22 Road Dilapidation 22 Road Upgrades 22 Road Maintenance 23 Crown Roads 23 Operational Traffic 24 HERITAGE 24 Indigenous Heritage Management 24 Historical Relics 25 FLORA AND FAUNA 25 Construction 25 Operation 27 PHYSICAL ISSUES 29 Soil, Water and Riparian Management 29 Air Quality 30 Spoil and Fill Management 30 MISCELLANEOUS REQUIREMENTS 30 Aviation 30 Hazards 30 Telecommunications 31 Wastewater Management 32 Decommissioning 32

In this consent, except in so far as the context or subject-matter otherwise indicates or requires, the following terms have the meanings indicated: Act Environmental Planning and Assessment Act 1979 Applicant RES Southern Cross Pty Ltd AHD Australian Height Datum CASA Civil Aviation Safety Authority CIP Community Information Plan Commissioning commencement of testing and connection of any individual turbine(s) and may include concurrent ongoing construction activities Conditions of Consent The conditions set out in this Schedule CEMP Construction Environmental Management Plan Construction any activity requiring a Construction Certificate, the laying of a slab or significant excavation work Council Upper Lachlan Council dB(A) decibel (A-weighted scale) the Department NSW Department of Planning Development the development to which this consent applies, the scope of which is described in the EIS and these conditions of consent DEC NSW Department of Environment and Conservation (incorporates the former NSW Environment Protection Authority and National Parks and Wildlife Service) Director-General Director-General of the NSW Department of Planning or delegate DNR Department of Natural Resources Dust any solid material that may become suspended in air or deposited EPA Environment Protection Authority (part of DEC). DEC continues to exercise certain statutory functions and powers in the name of the EPA EIS Environmental Impact Statement for the development entitled Taralga Wind Farm Environmental Impact Statement Volumes 1 and 2, prepared by Geolyse and dated November 2004 LAeq(10-minute) equivalent average sound pressure level that is measured over a 10 minute period Minister NSW Minister for Planning, or delegate OEMP Operational Environmental Management Plan Operation any activity at the site that results in the production, or intended production of electricity for contribution to the electricity grid, but does not include commissioning Parcel of land an allotment or a number of adjoining allotments belonging to the same landowner. Publicly Available Available for inspection by a member of the general public (for example available on an internet site or at a display centre) and including the Crookwell library and the Council's Community Service Centre, Taralga. POEO Act Protection of the Environment Operations Act 1997 Principal Certifying Authority the Minister or an accredited certifier, appointed under section 109E of the Act, to issue a Part 4A Certificate as provided under section 109C of the Act Reasonable and Feasible Consideration of best practice taking into account the benefit of proposed measures and their technological and associated operational application in the NSW and Australian context. Feasible relates to engineering considerations and what is practical to build. Reasonable relates to the application of judgement in arriving at a decision, taking into account: mitigation benefits, cost of mitigation versus benefits provided, community views and the nature and extent of potential improvements Relevant receiver has the same meaning as in the SA Guidelines Regulation Environmental Planning and Assessment Regulation 2000 Relevant Government Agencies the Department, Department of Natural Resources, Department of Lands, RTA, SCA, and Upper Lachlan Council RFS Rural Fire Service RTA Roads and Traffic Authority SCA Sydney Catchment Authority Site the land to which this consent applies SA Guidelines the South Australian Environmental Protection Authority's Wind Farms: Environmental Noise Guidelines (2003) in existence as at the date of this consent. Confidential information Any information in respect of or in relation to: (a) warranty details of any windfarm component (including turbines, electrical equipment or cables, monitoring equipment, television re-transmission tower, buildings or any civil works); (b) contractual or commercial arrangements with any landowners, suppliers, customers or other third parties; (c) contractual or commercial arrangements with windfarm owners or managers; (d) Any matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased); and (e) The energy performance and/or capacity of any turbine.

A. The explanatory notes are provided for the purposes of information only and do not form part of the conditions of consent. Deferred Commencement

1 In accordance with section 80(3) of the Environmental Planning and Assessment Act 1979, this development consent shall not operate until the Applicant has satisfied the Director-General that it has obtained approvals for the construction of a transmission line and its connection to the electricity grid. For the purpose of this condition, approval means a consent or approval that has been obtained under the Act and/or any relevant determining authority has completed its assessment obligations under Part 5 of the Act for the transmission line.

Note: At the time of lodgement of the Development Application, the Applicant had not determined the final alignment of the transmission line. Details of likely options are known and the Department considers that there are reasonable and likely options where a transmission line could be approved. However, as there are no final approvals, deferred commencement consent has been granted to permit the Applicant to satisfy the Director-General that such approvals have been obtained prior to any commencement of construction works related to the development. Scope of Development

2 This consent permits the construction and operation of the development on the following land: Lots 27, 129, 131, 195, 99, 93, 91, 90, 6 DP 750046; Lots 193, 29, 187, 157, 156, 154, 150, 158 DP 750046; Lots 3, 4, 5 DP 587908; Lots 2, 3 DP 171929; Lot 16, 21 DP 750046 Conveyance No. 994, Book 3335; Folios 216, 217, Vol. 6796; Allocated portion 238 DP 750046; Lots 216, 215, 55, 88, 48, 45 DP 750046; Lots 22, 23, 87, 62, 61, 89, 38 DP 750046; Lots 122, 121, 5, 58, 54 DP 750046; Lot 18 DP 5254; Lot 2 DP 773412; Lot 2 DP 1018120; Lot 2 DP 836457; Lot 4 DP 955581; Lot 7 DP 10897; Lot 6 DP 8040; Lot 1 DP 605482; Lot 21 DP 733863.

3 The Applicant must carry out the development generally in accordance with the following documents: (a) Development Application No. DA-241/04; lodged with Upper Lachlan Council on 10 November 2004; (b) Taralga Wind Farm Environmental Impact Statement (two volumes) prepared by Geolyse, dated November 2004; (c) Proposed Taralga Wind Farm: Response to the Department Questions , RES Southern Cross, dated 28 January 2005, 4 February 2005, 28 February 2005, 11 March 2005; (d) Proposed Taralga Wind Farm: Response to RTA Questions , RES Southern Cross, dated 31 January 2005; (e) Proposed Taralga Wind Farm: Response to Questions from Department of Lands , RES Southern Cross, dated 25 January 2005; (f) Proposed Taralga Wind Farm: Response to DEC Questions , RES Southern Cross, dated 24 January 2005, 17 February 2005, 3 March 2005, 15 March 2005; (g) Proposed Taralga Wind Farm: Amendment to Development Application , RES Southern Cross, dated 1 March 2005; (h) Proposed Taralga Wind Farm: Additional Information on Amendment to Development Application , RES Southern Cross, dated 15 March 2005, 21 March 2005; and (i) Conditions of this Consent.

If there is any inconsistency between the Conditions of this Consent and a document listed above, the Conditions of this Consent must prevail to the extent of the inconsistency. If there is any inconsistency between documents listed above (other than the Conditions of this Consent) then the most recent document must prevail to the extent of the inconsistency. Land Acquisition

4 Following commencement of construction, if requested by the landowners of the land referred to in Schedule 2 of this consent, the Applicant must, within six (6) months of receipt of a written request from the owner of that land, proceed to acquire the property in accordance with the acquisition procedure detailed under conditions 5 to 8 inclusive, of this consent. Any such request by a landowner to have their property acquired must be received by the Applicant within three (3) years of the commencement of Operation.

Note: This condition does not prohibit the landowner of the land referred to in this condition from entering into a negotiated agreement with the Applicant with respect to visual and noise impacts associated with the development. Should an agreement be reached, the Applicant shall forward a copy of the agreement to the Director-General as soon as practicable.

5 Within three (3) months of receiving a written request from a landowner with acquisition rights (determined by condition 4) of this consent), the Applicant must make a binding written offer to the landowner based on: (a) the current market value of the owner's interest in the property at the date of this written request, as if the property was unaffected by the development the subject of this consent, having regard to: (i) the existing use and permissible use of the land in accordance with the applicable environmental planning instruments at the date of the written request to purchase the property; and (ii) presence of improvements on the property and/or any approved building or structure which has been physically commenced at the date of the landowner's written request, and is due to be completed subsequent to that date, but excluding any improvements that have resulted from the implementation of any conditions of this consent; (b) the owner's reasonable compensation for disturbance allowance and, where relevant, relocation costs within the Upper Lachlan or Goulburn local government area, or within such other location as may be determined by the Director-General; and (c) the owner's reasonable costs for obtaining legal advice and expert witnesses for the purposes of determining the acquisition price of the land and the terms upon which it is to be acquired.

6 In the event that the Applicant and the relevant land owner cannot agree (within six weeks of the binding written offer to the landowner) on the acquisition price referred to under condition 5 of this consent and/or the terms of the acquisition, then either party may refer the matter to the Director-General. Upon receiving this request, the Director-General shall request that the President of the NSW Division of the Australian Property Institute appoint a qualified, independent valuer, or Fellow of the Institute, to consider submissions from both parties, and determine a fair and reasonable acquisition price for the land, and/or terms upon which the land is to be acquired.

Within 14 days of receiving the independent valuer's determination, the Applicant must make a written offer to purchase the land at a price not less than the independent valuer's determination.

If the landowner refuses to accept the offer within 6 months of the date of the Applicant's offer, the Applicant's obligations to acquire the land shall cease, unless otherwise agreed by the Director-General.

7 The Applicant shall bear the costs of any valuation or survey assessment required by the independent valuer/Fellow of the Institute, all relevant costs associated with determination of the acquisition price incurred through the processes referred to under condition 5 and condition 6 of this consent.

8 In the event the Applicant and the landowner agree that only part of the property that is subject to an acquisition request under condition 5 of this consent is to be acquired, the Applicant shall bear the reasonable costs associated with obtaining approval for any plan of subdivision and registration of the plan with the Office of the Registrar-General. Provision of Documents

9 The Applicant must make all relevant documents, with the exception of any confidential information, required under this consent, as identified in Schedule 3 of this consent, publicly available following their approval by the Director-General or issuing by the relevant government authority as the case may be, including provision of all documents at the site for inspection by visitors Statutory Requirements

10 The Applicant must ensure that all necessary licences, permits and approvals are obtained and kept up-to-date as required throughout the life of the development. No condition of this consent removes the obligation for the Applicant to obtain, renew or comply with such licences, permits or approvals. Provision and Protection of Public Infrastructure

11 The Applicant must: (a) repair, or pay the full costs associated with repairing, any public infrastructure that is damaged by the development; and (b) relocate, or pay the full costs associated with relocating, any public infrastructure that needs to be relocated as a result of the development.

Note: The Applicant must ensure that all works are carried out in accordance with the Environmental Planning and Assessment Act 1979 and the Local Government Act 1993 (Approvals) Regulations and the Building Code of Australia. Compliance General

12 The Applicant must be responsible for environmental impacts resulting from the actions of all persons on site associated with the development, including contractors, subcontractors and visitors.

13 The Applicant must submit a Pre-Construction Compliance Report to the Director-General at least two weeks prior to the commencement of construction (or within a time agreed to by the Director-General) certifying, to the satisfaction of the Director-General, that it has complied with all conditions of this consent applicable prior to construction. The Pre-Construction Compliance Report must include: (a) details of how the conditions of consent required to be addressed prior to construction have been complied with; (b) details of when each relevant condition of consent was complied with, including submission dates of any required report and/or approval dates; and (c) details of any approvals or licences required to be issued by Relevant Government Agencies prior to the commencement of construction.

14 The Applicant must submit a Pre-Operation Compliance Report to the Director-General at least two weeks prior to the commencement of Operation (or within a time agreed to by the Director-General) certifying, to the satisfaction of the Director-General, that it has complied with all conditions of this consent applicable prior to operation. The Pre-Operation Compliance Report must include: (a) details of how the conditions of consent required to be addressed prior to commencement of operation have been complied with; (b) details of when each relevant condition of consent was complied with, including submission dates of any required report and/or approval dates; and (c) details of any approvals or licences required to be issued by Relevant Government Agencies prior to the commencement of operation.

15 The Applicant must provide the Director-General with a Construction Compliance Report. The Environmental Representative, required under condition 27, must certify the adequacy of the report before it is submitted to the Director-General. The Construction Compliance Report must address the first six months of construction and be submitted within six weeks of the end of that reporting period (or at any other time interval agreed to by the Director-General). The Construction Compliance Report must include information on:

(a) compliance with the CEMP and the conditions of consent; (b) compliance with any approvals or licences issued by Relevant Government Agencies for Construction; (c) the implementation and effectiveness of environmental controls. The assessment of effectiveness should be based on a comparison of actual impacts against performance criteria identified in the EIS and CEMP; (d) a summary and analysis of environmental monitoring results; (e) the number and details of any complaints, including a summary of the main areas of complaint, action taken, response given and intended strategies to reduce recurring complaints; (f) details of any review and amendments to the CEMP resulting from construction during the reporting period; and (g) any other matter relating to compliance with the conditions of consent or as requested by the Director-General.

The Construction Compliance Report must be made publicly available.

16 The Director-General may require Update Report(s) on compliance with all, or any part, of the conditions of consent. Any such report must meet the requirements of and be to the satisfaction of the Director-General and be submitted within such period as the Director-General may require.

17 The Applicant must meet the requirements of the Director-General in respect of the implementation of any measure necessary to ensure compliance with the conditions of consent, and general consistency with the documents listed under condition 3 of this consent. The Director-General may direct that such a measure be implemented in response to the information contained within any report, plan, correspondence or other document submitted in accordance with the conditions of consent, within such time as the Director-General may require. Construction and Part 4A Certification 18 Prior to the commencement of construction associated with the development, the Applicant must erect at least one sign in a prominent position on the site, including in the vicinity of turbine 43. The sign(s) must indicate: (a) the name, address and telephone number of the Principal Certifying Authority; (b) the name of the person in charge of the construction site and telephone number at which the person may be contacted outside working hours; and (c) a statement that unauthorised entry to the construction site is prohibited. The sign(s) must be maintained for the duration of construction works, and must be removed as soon as practicable after the conclusion of the construction works. Note: Turbine 43 is located as identified in Attachment 1. The Applicant must ensure that all works are carried out in accordance with the Environmental Planning and Assessment Act 1979 (the Act) and the Local Government Act 1993 (Approvals) Regulations and the Building Code of Australia. Environmental Monitoring General Monitoring Requirements

19 The Applicant must undertake all monitoring, including recording and reporting of monitoring results, as required under this consent and as may be specified in an Environment Protection Licence for the development.

20 The results of any monitoring required under this consent must be recorded and maintained, as set out below. All records kept must be: (a) in a legible form, or in a form which can be readily reduced to a legible form; (b) kept for at least 4 years after the monitoring or event to which they relate took place; and (c) produced in a legible form to any authorised officer of the DEC or the Department who asks to see them.

21 The following records must be kept in respect of any samples required to be collected: (a) the date(s) on which the sample was taken; (b) the time(s) at which the sample was collected; (c) the location at which the sample was taken (including a description of the DEC identification point); and (d) the name of the person who collected the sample. Environmental Impact Audits Environmental Impact Audit Report - Construction

22 A Construction Environmental Impact Audit Report must be prepared and submitted to the Director-General within three months of construction completion, or at any other time interval agreed to by the Director-General. If requested, the Environmental Impact Audit Report - Construction must be provided to other Relevant Government Agencies.

The Construction Environmental Impact Audit Report must:

(a) identify the major environmental controls used during construction and assess their effectiveness; (b) summarise the main environmental management plans and processes implemented during construction and assess their effectiveness; (c) identify any innovations in construction methods used to improve environmental management; and (d) discuss the lessons learnt during construction, including recommendations for future wind farm developments. Environmental Impact Audit Report - Operation 23 An Operation Environmental Impact Audit Report must be prepared and submitted to the Director-General within six (6) weeks after a 12 month period of Operation and then at any additional periods requested by the Director-General. If requested, the report must be provided to other Relevant Government Agencies.

The Operation Environmental Impact Audit Report must:

(a) be certified by an independent person at the Applicant's expense. The certifier must be approved by the Director-General prior to the preparation of the audit report; (b) compare the operation impact predictions made in the EIS and documents identified in condition 3; (c) assess the effectiveness of implemented mitigation measures and safeguards; (d) assess compliance with the systems for operation maintenance and monitoring; and (e) discuss the results of consultation with the local community particularly any feedback or complaints and how any such complaints were addressed and resolved.

The Director-General may, having considered the findings of the Report, require the Applicant to undertake works to address the findings or recommendations presented in the Report. The result of the audit report must also be used to update the OEMP where necessary. The need or otherwise to update the OEMP must be certified by the Environmental Representative, required under condition 27. The Applicant must notify the Director-General and Relevant Government Agencies of any updates to the OEMP and provide a copy on request. Annual Performance Reporting 24 The Applicant must provide an annual return to the EPA in relation to the development as required by any licence under the Protection of the Environment Operations Act 1997. In the annual return, the Applicant must report on the: (a) annual monitoring undertaken (where the activity results in pollutant discharges); (b) provide a summary of complaints relating to the development; (c) report on compliance with licence conditions; and (d) provide a calculation of licence fees (administrative fees, and where relevant, load based fees) that are payable. If load based fees apply to the activity, the Applicant must be required to submit load-based fee calculation worksheets with the return. ENVIRONMENTAL MANAGEMENT Construction Environmental Management Plan

25 The Applicant must prepare and implement a Construction Environmental Management Plan (CEMP) in accordance with the Department's publication entitled Guideline for the Preparation of Environmental Management Plans (2004) or its latest revision. The Applicant must ensure that the mitigation and monitoring measures identified in the EIS and in these conditions of consent are incorporated into the CEMP.

The CEMP must be prepared in consultation with the Relevant Government Agencies and certified by the Environmental Representative, required under condition 27, as being in accordance with the conditions of consent. The CEMP must be submitted for the approval of the Director-General at least one month prior to the commencement of Construction, or within such a period otherwise agreed by the Director-General. Site preparation and construction associated with the development must not commence until written approval for the CEMP has been received from the Director-General. Upon receipt of the Director-General's approval, the Applicant must supply a copy of the OEMP to the DEC and Council as soon as practicable.

The CEMP is to be made Publicly Available following its approval.

26 The Applicant must prepare and implement an Operational Environmental Management Plan (OEMP) in accordance with the Department's publication entitled Guideline for the Preparation of Environmental Management Plans (2004) or its latest revision. The Applicant must ensure that the mitigation and monitoring measures identified in the EIS and in these conditions of consent are incorporated into the OEMP.

The OEMP must be prepared in consultation with the Relevant Government Agencies and certified by the Environmental Representative, required under condition 27, as being in accordance with the conditions of consent.

The OEMP is to be submitted for the approval of the Director-General no later than one month prior to the commencement of operation, or within such period otherwise agreed to by the Director-General. Operation must not commence until written approval has been received from the Director-General. Upon receipt of the Director-General's approval, the Applicant must supply a copy of the OEMP to the DEC and Council as soon as practicable.

The OEMP is to be made Publicly Available following its approval. Environmental Representative

27 Prior to the commencement of Construction, and in consultation with Council, the Applicant must nominate a suitably qualified and experienced Environmental Representative(s) whose appointment requires the approval of the Director-General. The Applicant must employ the Environmental Representative(s) on a full-time basis, or as otherwise agreed by the Director-General, throughout the life of the development. The proponent must make the identity of the approved Environmental Representative publicly available. The Environmental Representative must be: (a) the primary contact point in relation to the environmental performance of the development; (b) responsible for all management plans and monitoring programs required under this consent; (c) responsible for considering and advising on matters specified in the conditions of this consent, and all other licences and approvals related to the environmental performance and impacts of the development; (d) responsible for receiving and responding to complaints in accordance with this consent; and (e) given the authority and independence to require reasonable steps be taken to avoid or minimise unintended or adverse environmental impacts, and failing the effectiveness of such steps, to direct that relevant actions be ceased immediately should an adverse impact on the environment be likely to occur.

The Applicant must obtain approval from the Director-General for any changes to the appointment of the Environmental Representative that may occur from time to time over the life of the development. Any changes to the appointment or responsibilities of the Environmental Representative approved by the Director General are to be made publicly available. COMMUNICATION AND CONSULTATION Complaints Management System

28 Prior to the commencement of construction of the development, the Applicant must ensure that the following are available for the community for the life of the development: (a) a telephone number on which complaints about operations associated with the development on the site may be registered; (b) a postal address to which written complaints may be sent; and (c) an email address to which electronic complaints may be transmitted. The telephone number, the postal address and the email address must be advertised in a newspaper circulating in the locality prior to the commencement of construction and at quarterly intervals thereafter until construction is completed. This information must also be published on the Applicant's internet site, should one exist, and on a permanent notice board at an appropriately visible location in Taralga Village. 29 The Applicant must keep a legible record of all complaints received in an up-to-date Complaints Register. The Register must record, but not necessarily be limited to: (a) the date and time, where relevant, of the complaint; (b) the means by which the complaint was made (eg. telephone, in person, mail or email); (c) any personal details of the complainant that were provided, or if no details were provided, a note to that effect; (d) the nature of the complaint; (e) any action(s) taken by the Applicant in relation to the complaint, including any follow-up contact with the complainant; and (f) if no action was taken by the Applicant in relation to the complaint, the reason(s) why no action was taken. The Complaints Register must be made available for inspection on request of the Director-General or an authorised officer of the DEC. The record of a complaint must be kept for at least seven years after the complaint was made. Subject to confidentiality, the information in sub-paragraphs (a), (d), (e) and (f) above is to be made publicly available. Community Information Plan (CIP)

30 A Community Information Plan (CIP) must be prepared prior to the commencement of Construction. The CIP must set out the community communications and consultation processes to be undertaken during the construction period of the development. The Plan must include but not be limited to: (a) procedures to inform the local community of planned investigations and construction activities, including planned construction activities outside standard construction hours; (b) procedures to inform the relevant community of construction traffic routes and any likely disruptions to traffic flows and amenity impacts; (c) procedures to consult with local landowners in regards to construction traffic to ensure safety of livestock and limited disruption to livestock movements; (d) procedures to inform and consult with impacted residences subject to the Off-Site Landscape Plan; and (e) procedures to notify relevant properties of the processes available to review potential impacts on television and radio transmission. The CIP must be made publicly available prior to commencement of construction. VISUAL AMENITY Landscaping Requirements

31 As part of the OEMP for the development, the Applicant must prepare, implement and maintain an On-site Landscape Plan. The On-Site Landscape Plan is to address the visual impacts of the development, including the turbines, site access roads, the substation, and the control and facilities building, as far as is reasonable and feasible. The On-Site Landscape Plan is to include, but not be limited to: (a) identification of locations for planting and landscaping; (b) identification of species to be planted; and (c) details of the maintenance program for on-site landscaping associated with the development. The On-Site Landscape Plan is to be implemented within six months of commencement of Operation.

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) located within two (2) kilometres of their dwellings; the owners of the St Ives dwelling; and the owners of the Cushendall Vineyard property 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 (or in the case of the Cushendall Vineyard property, 6 months after the erection of any dwelling), 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.

Prior to the commencement of Operation, the Applicant must consult with Council on the need to provide landscaping measures along public road reserves to minimise as far as is Reasonable and Feasible, the visual impact of the development on neighbouring residential dwellings and shadow flicker impacting on public roads and to report to the Director-General on the outcome of the consultation. The Applicant must then implement landscaping measures that are to the satisfaction of the Director-General with all landscaping permitted under this condition being completed within eighteen (18) months from the commencement of Operation of the development. 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.

35 No advertising, signs or logos are to be mounted on the turbines, except where required for safety purposes. Lighting

36 The Applicant must take all practicable means to ensure that all external lighting associated with the development during construction is mounted, screened and directed in such a manner so as not to create a nuisance to surrounding residential dwellings or roadways. Shadow-flicker

37 Shadow flicker from the development must not exceed 30 hours/annum at any residence not associated with the development. NOISE AND VIBRATION Construction Noise and Vibration Management Sub Plan

38 As part of the CEMP for the development, the Applicant must prepare and implement a Construction Noise and Vibration Management Sub Plan. The Plan must include, but not be limited to: (a) details of construction activities, including timing, duration and predicted noise levels (including likely consistency with the EPA's Environmental Noise Control Manual goals); (b) best management practices to minimise noise resulting from construction activities; (c) reasonable and feasible noise mitigation measures including consideration of the need for structural measures such as acoustic shielding; (d) compliance monitoring methods and program; (e) examination of construction traffic noise impacts to dwellings situated close to local roads east of Taralga including reasonable and feasible methods of mitigating any adverse impacts; (f) community consultation and a community information program to inform residents when they are likely to affected by construction noise. This must include consideration of traffic noise impacts. In particular, residences adjoining site access routes east of Taralga Road must be notified in writing at least two weeks in advance of concrete pour activities and the details of such activities; (g) a complaints handling and complaints monitoring program, including details of a contact person to follow up complaints; and (h) contingency measures to deal with incidents when noise complaints have been received, including feedback on appropriate noise amelioration processes put in place in response to complaints and the timeframe for the introduction of these measures. The feedback must be provided to the complainant. Operation Noise and Vibration Management Sub Plan

39 As part of the OEMP for the development, the Applicant must prepare and implement an Operation Noise and Vibration Management Sub Plan to outline measures to minimise noise emissions associated with the operation of the development. The Plan must address the requirements of the EPA, should there be any and must include, but not be limited to: (a) identification of all major sources of noise that may be emitted as a result of the operation of the development; (b) specification of the noise criteria as it applies to each of the relevant receiver locations specified in condition 42 having regard to the results of the monitoring program required under condition 41 and any revised noise prediction modelling; (c) identification and implementation of best practice management techniques for minimisation of noise emissions from the development; (d) procedures for the monitoring of noise emissions in accordance with the conditions of this consent; and (e) a description of the procedures to be undertaken if any non-compliance is detected. Construction

40 Construction activities associated with the development, including heavy vehicles entering and exiting the site, may only be carried out between 7:00 am and 6:00 pm, Monday to Friday inclusive, and between 8:00 am and 1:00 pm on Saturdays. No work is to be carried out on Sundays and public holidays. The following activities may be carried out in association with construction outside of these hours: a) any works that do not cause noise emissions to be audible at any nearby residences not located on the site; b) the delivery of materials as requested by Police or other authorities for safety reasons; and c) emergency work to avoid the loss of lives, property and/or to prevent environmental harm. Any work undertaken outside the specified construction hours, other than those specified in (a) - (c) of this condition, must not be undertaken without prior consent of the DEC.

41 Prior to the commencement of construction, the Applicant must implement a monitoring program to determine the pre-existing background noise level (LA90, 10 minute) at each relevant receiver location specified in condition 42. The monitoring program is to be undertaken in accordance with the requirements of the SA Guidelines.

A report prepared by a qualified acoustic consultant, who is to receive the prior approval of the Director-General, must be submitted to the Director-General and EPA and contain the results of the survey and analysis.

42 The Applicant must design, operate and maintain the development to ensure that for the relevant receiver locations of H1, H5, H7, H12 and 'The Farm', while they continue to be not associated with the development, the equivalent noise level (LAeq, (10 minute)) from the development at each of these receiver locations does not exceed: a) 35 dB(A); or b) the pre-existing background noise level (LA90, (10 minute)) at each receiver location (as determined under condition 41), respectively, by more than 5 dB(A),

whichever is the greater, for each integer wind speed (measured at 10m height) during operation of the development, measured in accordance with the SA Guidelines.

Note: The residential receivers H1, H5, H7 and H12 are located as identified in Attachment 1. 'The Farm' is located as identified in a letter to the EPA from the Department (dated 6 June, 2005). If any of these residences become associated with the development, they will be exempted from this condition.

43 Notwithstanding condition 42, where the Applicant's noise modelling predicts that the equivalent noise level from the development at the relevant receiver locations specified in that condition would be: below the limit specified in condition 42 b) but above 35 dB(A), the predicted equivalent noise level must be met at the relevant receiver location.

Note: The Applicant has provided noise predictions for the development in the documents listed under condition 3 with 62 turbines operating.

44 At all other relevant receiver locations, noise from the development, at any given integer wind speed, must not exceed a level of LAeq, (10 minute) 35dB(A) at any time, measured in accordance with the SA Guidelines.

45 Noise from the development is to be measured at the most affected point within the residential boundary, or at the most affected point within 20 metres of the dwelling, where the dwelling is more than 20 metres from the boundary, to determine compliance with the noise level limits in conditions 42, 43 and 44.

46 All noise measurements taken for the purposes of this development consent must be undertaken using microphones fitted with a special purpose wind shield such that noise generated by wind on the wind shield is, to the extent practicable, at least 10 dB(A) below the noise being measured and which does not influence the noise level being measured.

47 The noise limits specified in conditions 42, 43 and 44 do not apply to on-site residences H2, H3, H4, H6, H8, H9, H10, H11, H15, H20 and any additional residences whilst agreements are in place between the Applicant and the respective owners of the residences. For this condition to take effect, the agreements must satisfy the requirements of Section 2.3 of the SA Guidelines.

48 For the purposes of conditions 42, 43 and 44, a positive adjustment of 5dB(A) must be applied to the measured noise levels where audible tones are present. The presence of audible tones must be determined using the methodology in the document "Wind Turbine Generator Systems - Part 11: Acoustic noise measurement techniques" (IEC 61400-11:2002).

49 At the relevant receiver locations of H1, H5, H7, H12 and 'The Farm', while they continue to be not associated with the development, the Applicant must, at the owner's request, provide Reasonable and Feasible ameliorative measures such that the acoustic suppression of the façade would increase the noise mitigation of the façade of that dwelling by 5dB(A), beyond that existing at the date of the owner's request, to a maximum façade suppression effect of 15dB(A). Any such request from an owner must be made to the Applicant no later than two (2) years after commencement of operation.

If the Applicant and the landowner disagree on the ameliorative measures, then either party may refer the matter to the Director-General for resolution, in which case, the Applicant must carry out such ameliorative measures required by the Director-General.

50 The Applicant must establish an anemometer at 10 metres height on a permanent monitoring tower. The permanent monitoring tower is to be installed at a location representative of one of the relevant receiver locations identified in condition 42 and that is to the satisfaction of the Director-General, in consultation with the EPA. The anemometer must be capable of measuring 10 minute wind speed and direction data which is to be transferred electronically to the development's control building via modem, or equivalent.

Note: The purpose of this condition is to provide a mechanism for collection and recording of wind data for use in noise impact modelling and assessment.

Noise Compliance Noise Compliance Assessment Plan

51 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.

52 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.

53 A Noise Compliance Assessment Report, must be submitted to the Director-General and the EPA within one month of completing the compliance monitoring outlined in condition 52. The Noise Report must include, but not be limited to: (a) an assessment of the performance of the development against the noise limits contained in condition 42 and where relevant, condition 43; and (b) in the event that the assessment indicates that noise from the wind turbines exceeds the noise limits set under this consent, details of proposed mitigation and management measures that are available to achieve compliance, including a timetable for implementation.

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. Noise Mitigation - Vacant Lots

54 Where reasonable and feasible, physical noise mitigation measures are to be provided by the Applicant for no more than one new dwelling, built on any vacant parcel of land legally existing at the date of this consent (not part of an associated landholding at that date), and upon which a residential dwelling would be permissible at the same date. Noise mitigation is to be provided if the noise levels from the development at the approved location of the new residential dwelling would, without mitigation, exceed the noise limits recommended in the SA Guidelines. The mitigation measures are to achieve a noise level of LAeq 30 dB(A) inside the habitable rooms of such a dwelling. This condition only applies to new dwellings for which a development application is lodged with the Council within five (5) years of the date of commencement of commissioning and where a copy of the development application is provided to RES Southern Cross (or any successor in title to RES Southern Cross during such five year period) within 28 days of its lodgement with the Council. Blasting and Vibration

55 The overpressure level from blasting operations associated with the development must not: (a) exceed 115dB (Lin Peak) for more than five per cent of the total number of blasts over the period of any relevant DEC licence; and (b) exceed 120dB (Lin Peak) at any time. The above values apply when the measurements are performed with equipment of a lower cut-off frequency of 2Hz or less. If the instrumentation has a higher cut-off frequency, then a correction of 5dB should be added to the measured value. Equipment with a lower cut-off frequency exceeding 10 Hz should not be used for the purpose of measuring overpressure. 56 Ground vibration (peak vector sum) from the blasting operations associated with the development must not: (a) exceed 5mm/s for more than five percent of the total number of blasts during construction; and (b) exceed 10 mm/s at any time. when measured at any point within 1 metre of any affected residential boundary or any other noise sensitive location such as a school or hospital.

57 Blasting operations associated with the development may only take place: (a) between 9.00am and 5.00pm Monday to Friday; (b) between 9.00am to 12.00pm Saturday; and (c) at such other times or frequency as may be approved by the DEC. TRAFFIC Traffic Management

58 As part of the CEMP, a Construction Traffic Management Plan must be prepared in consultation with Upper Lachlan Council, the RTA and NSW Police, to manage traffic related issues associated with the development during Construction. The Plan must identify: (a) designated transport routes for heavy vehicles to the site associated with the development; (b) heavy vehicle movements at the junction of Lagoon Street (MR676) and Union Street (MR256), including demonstration that junction accommodates turning movements in accordance with AUSTROADS standards. (c) details of procedures to minimise traffic disruption; (d) procedures to minimise disturbance from traffic noise, particularly during night periods; (e) procedures to manage construction traffic to ensure the safety of: (i) livestock and limit disruption to livestock movement; (ii) school children and limit disruption to school bus timetables; (f) a community information program to inform the community of traffic disruptions resulting from the construction program; and (g) details of complaints management procedures for traffic impacts. 59 Should any vehicle accessing the site during Construction or Operation of the development exceed the road limit for length or mass on any road, the applicant must apply for Specific Oversized/Over Mass Permit from the RTA.

60 No advertising signs or structures within Taralga Road (MR256) road reserve are to be erected.

61 A Section 138 Approval from Council with RTA concurrence within the Classified Road Reserve must be obtained.

62 All large construction vehicles associated with the development must only utilise the transport routes identified in Figure 5.16 of the EIS. Road Occupancy

63 The Applicant must apply for a Road Occupancy Licence (ROL) from the RTA Traffic Operations Unit (TOU) before commencing work within the classified road reserve. Should the Traffic Management Plan, identified in condition 58, require a reduction of the speed limit, a Direction to Restrict must be obtained from the TOU at least two weeks prior to using the road reserve. Road Dilapidation

64 Prior to the commencement of Construction, the Applicant must undertake a 'before' road dilapidation report utilising the ARRB (Australian Road Research Board Limited) 'laser car', to assess the existing condition of Taralga Road (MR256), Bannaby Road and Old Showground Road. The report is required for the respective lengths of road that are to be utilised for heavy vehicle access. It must be undertaken in consultation with Council's Director of Works.

65 Following completion of Construction, and prior to the commencement of Operation, an 'after' road dilapidation report utilising the ARRB 'laser car' and road video images (i.e. RTA "gypsy"cam car) must be prepared in consultation with Council to determine the works required by the Applicant to restore the road to at least its pre-development condition.

66 The Applicant must restore the roads to a standard not less than recorded in the initial dilapidation report, unless the damage can be reasonably attributed to influences other than the development. The Applicant must restore the road to at least its pre-development condition, to the satisfaction of Council within three (3) months of the commencement of operation, unless otherwise agreed by Council. Road Upgrades

67 In the event that the turning movements of heavy vehicles at the junction of Lagoon Street (MR676) and Union Street (MR256) cannot be achieved, the Applicant must upgrade the junction in accordance with the RTA Road Design Guide.

68 Prior to the commencement of any transport to the site associated with the development from Taralga Road involving heavy vehicles, the Applicant must construct site access points along Taralga Road to a minimum 'BAL', 'BAR' treatment, to the satisfaction of Council and RTA. Detailed drawings of the access points along Taralga Road must be approved by the RTA prior to the commencement of these works.

69 Prior to heavy vehicle movements to and from the site associated with the development, the Applicant must complete the following works along the designated route, to the satisfaction of Council: (a) a condition survey of all bridges and drainage structures along the proposed access roads for construction heavy vehicles by a competent and qualified person, to determine the adequacy of the bridges and drainage structures to withstand the proposed loads; (b) implement a program of works as necessary to reinforce and strengthen bridges and drainage structures identified in (a) above to permit heavy vehicles to pass without causing damage; (c) construction of site access points and turning bay along the Bannaby Road with a minimum of 180m stopping sight distance for approaching traffic; (d) construction of site access points and turning bay along the Alders and Crees Road with a minimum of 160m stopping sight distance for approaching traffic; (e) road improvements and realignment of roads as identified by Council to permit the safe passage of over length and overweight vehicles; (f) strengthening of a major twin cell culvert at Bannaby Road (chainage 0.87km) by additional temporary supports for the duration of the construction period, if this culvert is identified to be on the route used by Construction vehicles. 70 All roadwork is to be designed and constructed to Upper Lachlan Council's version of AUS-SPEC Design and Construction specification or alternative specifications that meet the minimum requirements of AUS-SPEC. Detailed drawings of the access points along Bannaby Road must be approved by the Council prior to the commencement of these road works.

71 Prior to the commencement of Construction, site road work design and specifications shall be completed and certified by an appropriately qualified person that all roads within the site associated with the development are of an acceptable standard for traffic generating requirements of the development. Road Maintenance

72 During Construction, designated gravel access roads shall be maintained in a safe and satisfactory condition at all times by the provision of regular maintenance and grading. The maintenance can be undertaken by the Applicant as a work in kind and/ or by Council at agreed rates.

73 During Construction, designated bitumen road access shall be maintained in a safe and satisfactory condition. Should any of the roads fail due to construction traffic, immediate maintenance must be undertaken by the Applicant as work in kind and/ or by Council at agreed rates to maintain the road in a safe trafficable condition.

74 Should Construction materials, such as road-base, be sourced locally, the access route must be jointly inspected with Council's officers to determine the suitability of the route and the extent of improvement works required prior to Construction. Should the route be approved for use, maintenance of the route during Construction shall be undertaken in accordance with conditions 72 and 73. Crown Roads

75 The Applicant must indemnify and keep indemnified the Crown and the Minister for Lands against all claims arising out of the use and occupation of the Crown Public Roads in relation to works associated with this development.

76 No works must be undertaken on any Crown roads until any necessary authorities, easements, licences or approvals, as required by the Department of Lands, have been obtained.

77 In the event of a transfer of ownership, the terms and conditions imposed by approval from the Department of Lands shall also apply to future owners of the development. Following a change of ownership, any existing tenures will be terminated and new tenures granted. The Department of Lands reserves the right to vary the terms and conditions of a new tenure or any authority or consent previously granted.

78 Public access along Crown roads must not be denied, impeded or obstructed when the development is completed. Alternative access is to be provided, if required, during the construction period.

79 The Applicant and any subsequent owner of the development must be responsible for the maintenance and rehabilitation of Crown roads used for access, construction and installation of works throughout the term of the occupancy.

80 Upon decommissioning of the project, or parts thereof, all structures and works on Crown roads must be removed to the satisfaction of the Department of Lands. A maintenance period of two years shall apply for the rehabilitation work after the works have been removed and the site associated with the development rehabilitated. Operational Traffic

81 Prior to commencement of Operation, all works relating to permanent vehicle access to the site associated with the development must be completed. In the case of Bannaby Road, permanent access must be completed to the satisfaction of Council and comply with the following requirements: (a) access points must have an adequate sight stopping distance (180 metres minimum) available in both directions; (b) any gate must be located so that there is sufficient distance for a vehicle (rigid truck) to stand clear of the road; and (c) the access shall be sealed for a minimum distance of 50m measured from the edge of Bannaby Road pavement. 82 The Applicant must, in consultation with the RTA and Council, identify any road safety changes along the Taralga Road, Bannaby Road, Old Showground Road, Alders and Crees Road that may have arisen during the first 12 months of Operation. Road safety changes must include, but not be limited to, any significant change in motor vehicle accident rates since the previous survey was undertaken. The Applicant must implement any reasonable and feasible mitigation measures as required by Council and the RTA, to address the road safety impacts that could be attributed to the development. HERITAGE Indigenous Heritage Management

83 In the event that an Aboriginal object (as described in the National Parks and Wildlife Act, 1974) or a relic is uncovered during the Construction, all work in the vicinity of the object must cease and the Applicant must contact the DEC as soon as practicable. The Applicant must meet the requirements of the DEC with respect to the treatment, management, and/or preservation of any such object. Historical Relics

84 In the event that a non-indigenous heritage item is uncovered during Construction, all work in the vicinity of the object must cease and the Applicant must contact the NSW Heritage Council to determine an appropriate course of action prior to the recommencement of work in the vicinity of the item. FLORA AND FAUNA Construction

85 A Construction Flora and Fauna Management Sub Plan must be prepared as part of the CEMP. The Sub Plan must be prepared in consultation with the Department and must include but not be limited to: (a) detailed plans identifying: (i) terrestrial vegetation communities; important flora and fauna habitat areas; habitat trees, locations where threatened species, populations or ecological communities were recorded; and areas to be cleared. The plans must also identify vegetation adjoining the development where this contains important habitat areas and/or threatened species, populations or ecological communities; (b) methods to manage impacts on flora and fauna species (terrestrial and aquatic) and their habitat which may be directly or indirectly affected by the development. These must include: (i) procedures for vegetation clearing, soil management and managing other habitat damage (terrestrial and aquatic) during construction; (ii) methods to protect vegetation both retained within, and also adjoining, the development from damage during construction; (iii) methods to protect rocky outcrops and other potential reptile habitat both retained within, and also adjoining, turbines and ancillary development from damage during construction; (iv) a habitat tree management program including fauna recovery procedures and habitat maintenance (e.g. relocating hollows or installing nesting boxes); and (v) performance criteria against which to measure the success of the methods; (c) details of how structures associated with the development will be designed to reduce the risk of bird and bat strike; (d) rehabilitation details including: (i) identification of locally native species to be used in rehabilitation and landscaping works, including flora species suitable as a food resource for threatened fauna species; (ii) the source of all seed or tube stock to be used in rehabilitation and landscaping works including the identification of seed sources within the site. Seed of locally native species should be collected before construction commences; and (iii) methods to re-use topsoil (and where relevant, subsoils), surface rocks and cleared vegetation; (e) a Weed Management Strategy including: (i) identification of weeds within the site and adjoining areas; (ii) weed eradication methods and protocols for the use of herbicides; (iii) strategies to control the spread of weeds during construction, including ensuring that machinery brought on site is weed and pathogen free; (f) a program for reporting on the effectiveness of terrestrial and aquatic flora and fauna management measures against the identified performance criteria. Management methods must be reviewed and revised where found to be ineffective; and (g) a program to ensure that all staff and contractors associated with the development are aware of the location of all protected areas.

86 The Applicant must design, construct, operate and maintain the development in a manner that avoids damage to or loss of suitable habitat for Natural Temperate Grassland and the orchid, Diurus aequalis. To ensure compliance with this condition, the Applicant must engage a suitably qualified person(s) who is to receive the prior approval of the Director-General, to undertake a detailed botanical survey, prior to the commencement of construction, of: o turbine rows 4,5,6, 7 and10; and o all access roads requiring construction or upgrading, during the appropriate season (that is, November to December).

Where Natural Temperate Grassland or Diurus aequalis is found to occur either on, or adjacent to these locations, the area must be fenced during construction and that component of the development (including construction components) must be relocated at least 50 metres from the grassland or orchid population but no more than 250 metres from the original location of that component.

A report detailing the results of this survey, including details of any proposed relocation of infrastructure associated with the development is to be submitted to the Director-General within one month of completion of the survey. Construction must not commence until the Director-General has confirmed the results of the survey and approved the position of any relocated infrastructure (inclusive of any construction-related components).

Note: The Natural Temperate Grassland of the Southern Tablelands of NSW and the Australian Capital Territory Endangered Ecological Community "Natural Temperate Grassland" is defined under the Commonwealth Environment Protection and Biodiversity Conservation Act, 1999. The location of the turbine rows and the access tracks is as described in the EIS. Where any component of the development is proposed to be relocated greater than 250 metres from its original position on the grant of consent, modification of the consent or further consent under the Act will be required.

87 The Applicant must design, construct, operate and maintain the development in a manner that avoids damage to and/ or loss of suitable habitat for the Striped Legless Lizard and the Grassland Earless Dragon. To ensure compliance with this condition, the Applicant must engage a suitably qualified person(s) that is to receive the prior approval of the Department, to undertake a detailed survey of the site to determine the presence of such suitable habitat, so as to enable the Applicant, in consultation with the DEC and the Department, to locate infrastructure (including turbines, underground cables and power poles) and other elements associated with the development (such as access tracks and construction lay-down areas) at least 50 metres from these areas, but no more than 250 metres from the original location of that infrastructure or element.

Note: Where any component of the development is proposed to be relocated greater than 250 metres from its original position on the grant of consent, modification of the consent or further consent under the Act will be required.

88 Notwithstanding condition 87, where the Applicant is unable to avoid damage to and/ or loss of such suitable habitat in respect of the Striped Legless Lizard, the Applicant may seek the approval of the Director-General to damage and/ or destroy this habitat however, this loss must be suitably compensated. Any such compensatory works are to be implemented, in consultation with and to the satisfaction of the Department and DEC.

89 Prior to the commencement of construction, all vegetation and fauna habitat to be protected under this consent is to be fenced off with clearly visible, durable and appropriately signposted exclusion fencing to prevent uncontrolled or inadvertent access by vehicles or construction personnel.

90 To compensate for the loss of the existing forest/ woodland resulting from the construction of the wind turbine generators and access tracks on Row 6, the Applicant must reforest a similar-sized area to that which is lost, at a location not immediately adjacent to any turbine. To ensure compliance with this condition, the Applicant must prepare and submit for the approval of the Director General, details of the habitat compensation plan. Construction activities at Row 6 must not commence until the Director-General has approved the plan. Following approval by the Director-General, the Applicant must implement the compensatory measures within such period as the Director-General may direct. Operation

91 An Operation Flora and Fauna Management Sub Plan must be prepared as part of the OEMP. The Sub Plan must be prepared in consultation with the Department and include: (a) plans showing terrestrial vegetation communities, important flora and fauna habitat areas, areas to be protected, and areas to be planted; (b) methods to be adopted on the site to manage impacts on flora and fauna species (terrestrial and aquatic) and their habitats which may be directly or indirectly affected by the development. These must include: (i) habitat management procedures including rehabilitation requirements and active re-planting of windrows; (ii) operation stage measures to minimise bird and bat disturbance, in particular reducing the incidence of bird/bat strike. Management measures that must be considered for areas near the turbines include: i. minimising the availability of raptor perches; ii. modifying structures to prevent perching; iii. management of lambing; iv. swift carcass removal; v. pest control, including rabbits; vi. management of stock (grain) feeding; vii. filling in of small dams on the site that might attract insects and birds; viii. use of deterrents (eg. flags, marker balls); ix. minimising external lighting; x. turbine management, that might include the turning off of turbines that are predicted to cause unacceptable bird/bat mortality at identified times; xi. measures identified from research undertaken at other wind farms to reduce the incidence of bird/bat strike; (c) performance criteria against which to measure the success of the methods; and a programme for reporting on the effectiveness of management measures against the identified performance criteria. Management methods must be reviewed where found to be ineffective; and (d) a program to ensure that all staff and contractors associated with the development are aware of the location of all protected areas.

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.

93 Prior to the commencement of Construction, the Applicant must prepare and submit for the approval of the Director-General, a Bird and Bat Adaptive Management Program must be prepared and undertaken, which takes account of bird/bat monitoring methods identified in the current editions of AusWEA Wind Farms and Birds: Interim Standards for Risk Assessment (July 2005). The Program must be undertaken by a suitably qualified expert, approved by the Director-General.

The Program must incorporate Monitoring, and a Decision Matrix that clearly sets out how the Applicant will respond to the outcomes of monitoring. It must:

(a) incorporate an ongoing role for the suitably qualified expert; (b) set out monitoring requirements. The requirements must account for natural and human changes to the surrounding environment that might influence bird and/or bat behaviour such as changes in land use practices, and significant changes in water levels in nearby water bodies; (c) incorporate a decision making framework that sets out specific actions and when it may be required to reduce identified impacts on birds and bats; (d) set out available mitigation measures; (e) incorporate reporting requirements on the outcomes of monitoring, including details on all mortalities, on the application of the decision making framework, the need for mitigation measures, progress with implementation of such measures, and their success and details of all payments made to WIRES (as required under condition 92) that have been made during each reporting period. Reports must be prepared on an annual basis, from the commencement of operation, and must be prepared within 2 months of the end of the reporting period and be provided to the Director-General. The Director-General may vary the reporting requirement or period by notice in writing to the Applicant; and (f) identify any necessary mitigation measures and implementation strategy including, but not limited to, those referred in condition 91. The Applicant is required to implement reasonable and feasible mitigation measures, to the satisfaction of the Director-General, where the need for further action is identified through the Bird and Bat Adaptive Management Program. PHYSICAL ISSUES Soil, Water and Riparian Management

94 The Applicant must not commence any works within 40 metres of a watercourse until a Permit under Part 3A of the Rivers & Foreshores Improvement Act is obtained from DNR.

95 As part of the CEMP, a Riparian Vegetation Management Sub Plan must be prepared and developed in consultation with DNR. This Sub Plan is to outline details of the protected riparian zone(s) including, but not limited to: (a) requirements of the Permit under Part 3A of the Rivers & Foreshores Improvement Act, 1948 ; (b) drawings demonstrating the locations and extent of the zone(s), remnant vegetation, and where areas will be revegetated/regenerated; (c) plant species list to be utilised for revegetation; and (d) maintenance and performance monitoring. 96 As part of the CEMP and OEMP, Soil and Water Management Sub Plans must be prepared in consultation with relevant government agencies. The Sub Plans must: (a) be prepared by a person or persons with the experience, skills and training in the development and implementation of such plans; (b) where relevant, be in accordance with Landcom's "Managing Urban Stormwater" (2004), and other relevant guidelines including the RTA's "Guidelines for the Control of Erosion and Sedimentation in Roadworks" and the Department's "Constructed Wetlands Manual"; (c) identify the activities that could cause soil erosion or discharge sediment or water pollutants from the site associated with the development; (d) describe management methods to minimise soil erosion or discharge of sediment or water pollutants from the site associated with the development including strategies to minimise the area of bare surfaces and to achieve nil or minimal harm to aquatic and riparian environments; (e) describe the location and capacity of erosion and sediment control measures; (f) identify the timing and conditions under which controls will be decommissioned; (g) include contingency plans to be implemented for events such as fuel spills; and (h) identify how the effectiveness of the sediment and erosion control system will be monitored, reviewed and updated.

97 The turbines, substation and access tracks in high erosion hazard areas must be fenced off from livestock. The location of fencing and high erosion hazard areas must be identified in the OEMP.

98 Design and construction of any crossings over protected waters and riparian zones must be consistent with the Department's Draft Guidelines - Watercourse Crossing Design & Construction and NSW Fisheries' Why do Fish Need to Cross the Road? - Fish Passage Requirements for Waterway Crossings (2004) and Policy and Guidelines for Fish Friendly Waterway Crossings (2004).

99 Except as may be expressly provided by a licence under the POEO Act in relation to the development, the Applicant must comply with Section 120 of the POEO Act (prohibition of the pollution of waters), which prohibits pollution of waters. Air Quality

100 The Applicant must design, construct, operate and maintain the development in a manner that minimises dust emissions from the site associated with the development.

101 The Applicant must take all practicable measures to ensure that all vehicles associated with the development entering or leaving the site and carrying a load that may generate dust, are covered at all times, except during loading and unloading. Any such vehicles must be covered or enclosed in a manner that prevents emissions from the vehicle at all times. Spoil and Fill Management

102 For the purposes of the development, imported fill must be Virgin Excavated Natural Material as defined in the EPA's publication Environmental Guidelines: Assessment, Classification and Management of Liquid and Non-Liquid Wastes. MISCELLANEOUS REQUIREMENTS Aviation

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.

104 In the event that required aerial weed control and/or fertiliser application is restricted on any property surrounding the site due to the location of turbines, the Applicant must fully fund the cost difference between aerial weed spraying/fertiliser application and a reasonable alternative weed control/fertiliser application method in the restricted area, unless otherwise agreed to by the Director-General. Hazards Bush Fire Fighting

105 As part of the CEMP, the Applicant must provide details of measures to prevent fires igniting during construction activities. These measures must include, but not be limited to: (a) prohibition of work involving risk of ignition during total fire bans; (b) availability of fire suppression equipment; and (c) storage and maintenance of fuels and other flammable materials.

106 During Construction, the Applicant is to consult with the local RFS in periods of high fire danger, to verify that proposed activities to be undertaken during this period, will not adversely increase the risk of bushfire. The Applicant must comply with any reasonable request of the local RFS.

107 The Applicant must consult with the RFS after the commencement of operation and any other time thereafter as required by the RFS, to ensure that the local RFS is familiar with the development, including location and identification of wind turbines for the purpose of fast access in emergencies.

108 At least two months prior to the commencement of commissioning, the Applicant must prepare a report outlining a comprehensive Safety Management System, covering all on-site systems related to ensuring the safe operation of the development. The report must clearly specify all safety related procedures, responsibilities and policies, along with details of mechanisms for ensuring adherence to the procedures. Records must be kept on-site and must be available for inspection by the Department upon request. The Safety Management System must be developed in accordance with the Department's Hazardous Industry Planning Advisory Paper No. 9, 'Safety Management', and should include: (a) procedures and programs for the maintenance and testing of the safety related equipment to ensure its integrity over the life of the wind farm; (b) an outline of a documented procedure for the management of change; (c) procedures and programs for liaison and regular drills with the local RFS; and (d) procedures for regular fire prevention inspections by the local RFS and implementation of recommendations. Telecommunications

109 Prior to the erection of any wind turbine(s) on site, the Applicant must undertake an assessment of the existing quality of the television transmission available at a representative sample of residential dwellings located within five kilometres of a wind turbine.

110 The Applicant must undertake any Reasonable and Feasible mitigation measures to rectify any television transmission problems reasonably attributable to the development, including but not limited to: (a) installation and maintenance of a parasitic antenna system; (b) provision of a land line between the affected receiver and an antenna located in an areas of favourable reception; or (c) other feasible measures. In the event of interference reasonably attributable to the development not being able to be overcome by measures outlined in (a) to (c), the Applicant must, if required by the impacted landowner, install and maintain a satellite receiving antenna. If a dispute arises between the landowner and the Applicant as to these works, the matter may be referred by either party to the Director-General, whose determination must be final and binding on all parties.

Any requested works must be completed within three months of the completion of the relevant television and/or radio reception assessment, unless otherwise agreed by the landowner. The Applicant must be responsible for all costs associated with undertaking any mitigation measures. Wastewater Management

111 The human wastewater management system is to be designed in consultation with the SCA, in accordance with the principles contained within the guidelines On-site Sewage Management for Single Households, and the AS/NZS 1547-2000 On-site Domestic Wastewater Management. The system, including any effluent management areas, is to be located at least 100 metres from watercourses and 40 metres from drainage depressions.

112 AAA-rated water conservation devices are to be installed in the site control room/facilities building to minimise the volume of wastewater produced.

113 All stormwater is to be diverted away from any effluent management area associated with the development. Decommissioning

114 Prior to the commencement of Construction, the Applicant must provide written evidence to the satisfaction of the Director-General, that the lease agreements with the site landowners have adequate provisions to require that decommissioning occurs in accordance with this Consent.

115 If any wind turbine(s) is not used for the generation of electricity for a continuous period of 12 months, it must be decommissioned unless otherwise agreed to by the Director-General. The Applicant must keep independently verified annual records of the use of turbines for electricity generation. These records must be provided to the Director-General upon request. The relevant wind turbine and any associated infrastructure is to be dismantled and removed from the site within 18 months from the date that the turbine was last used to generate electricity.

116 Within one year of decommissioning, the site must be returned, as far as practicable, to its condition prior to the Construction. All turbines and associated above ground structures including but not limited to, the substation, the control and facilities building and electrical infrastructure, including associated transmission lines, must be removed from the site unless otherwise agreed by the Director-General. All other elements associated with the development, including site roads, must be removed unless otherwise agreed to by the site owner(s). The cost of such decommissioning works is to be borne by the Applicant.

For the purposes of any property acquisition required under this consent, the following properties are identified as being affected landowners:

1. Rosvale (H12), described as Lots 35, 36, 118 and 125 in Deposited Plan 750046, Lots 2 and 3 in Deposited Plan 605482 and Lot 1 in Deposited Plan 1011714; and
2. Cloverlee, described as Lots 17, 18, 19, 20, 26 and 28 in Deposited Plan 750046

In accordance with the provisions of condition 9 of this consent, the documents referred to within the following conditions of consent are to be made publicly available:

1. condition 10
2. condition 13
3. condition 14
4. condition 15
5. condition 22
6. condition 23
7. condition 25
8. condition 26
9. condition 27
10. condition 29 (a), (d), (e) and (f)
11. condition 30
12. condition 38
13. condition 39
14. condition 53
15. condition 58
16. condition 85
17. condition 86
18. condition 87
19. condition 90
20. condition 91
21. condition 93
22. condition 95
23. condition 96

13/02/2007 - Correct turbine numbers to be consistent with para 13 - Paragraph(s) 355 26/02/2007 - Attachment of Orders and conditions of consent - Paragraph(s) Epilogue 26/02/2007 - Formatting of conditions - Paragraph(s) Conditions 05/04/2007 - remove web urls from paragraphs and create text hyperlinks to webpages - Paragraph(s) 19, 68, 69, 70, 72, 75, 79, 82 and 138

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.