King & Anor v Minister for Planning; Parkesbourne-Mummel Landscape Guardians Inc v Minister for Planning; Gullen Range Wind Farm Pty Limited v Minister for Planning [2010] NSWLEC 1102 (7 May 2010)

Last Updated: 20 August 2010

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:

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

This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT- Matter No: 09/10517

J & A King

APPLICANT - Matter No: 09/10545

Parkesbourne/Mummel Landscape Guardians Inc

APPLICANT - Matter No: 09/10700

SECOND RESPONDENT- Matter No: 09/10517

SECOND RESPONDENT - Matter No: 09/10545

Gullen Range Wind Farm Pty Limited

FIRST RESPONDENT (All matters)

Minister for Planning

INTERVENOR - Matter No: 09/10700

Upper Lachlan Shire Council

FILE NUMBER(S):

10517

10545

10700 of 2009

CATCHWORDS:

DESIGNATED DEVELOPMENT; DEVELOPMENT CONSENT; DEVELOPMENT CONTROL PLAN; DEVELOPMENT MODIFICATION; SUBDIVISION :-

Wind farm

Visual impact

Noise

Shadow flicker

Cumulative impacts

Acquisition

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Upper Lachlan Shire Council Development Control Plan – Wind Power Generation 2005

Commonwealth of Australia Constitution Act

Land and Environment Court Act 1979

Conveyancing Act 1919

National Parks and Wildlife Act 1974

CASES CITED:

Gullen Range Wind Farm Pty Limited v Minister for Planning [2009] NSWLEC 1444

Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd [2007] NSWLEC 59; (2007) 161 LGERA 1

Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195

Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472

Newbury District Council v Secretary of State for the Environment [1981] AC 578; [1980] 1 All ER 731

Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 1389

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

Mison v Randwick Municipal Council (1991) 23 NSWLR 734

RES Southern Cross Pty Ltd v Minister for Planning and Anor [2008] NSWLEC 332; (2008) 166 LGERA 116

CORAM:

Moore SCFakes C

DATES OF HEARING:

30 November, 1, 2, 3, 4, 7 and 8 December 2009

JUDGMENT DATE:

7 May 2010

LEGAL REPRESENTATIVES

APPLICANT- Matter No: 09/10517

Mr J Masten, barrister

INSTRUCTED BY

Mr G Livanes, solicitor

APPLICANT - Matter No: 09/10545

Mr G Underwood, barrister

APPLICANT - Matter No: 09/10700

SECOND RESPONDENT- Matter No: 09/10517

SECOND RESPONDENT - Matter No: 09/10545

Mr A Pickles, barrister

INSTRUCTED BY

Middletons

FIRST RESPONDENT (All matters)

Mr P Clay, barrister

INSTRUCTED BY

Department of Planning

INTERVENOR - Matter No: 09/10700

Mr S Griffiths, solicitor

Pikes Lawyers

JUDGMENT:

THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

MOORE SC

FAKES C

7 May 2010

09/10517 King & anor v Minister for Planning

09/10545 Parkesbourne/Mummel Landscape Guardians Inc v Minister for Planning

09/10700 Gullen Range Wind Farm Pty Limited v Minister for Planning

“Take care, your worship, those things over

there are not giants but windmills.”

Sancho Panza

(from Don Quixote by Don Miguel de Cervantes Saavedra [1602]

Part 1 Chapter 4)

INDEX

JUDGMENT

Summary of conclusions

1 COMMISSIONERS: We have concluded that there is no broad impact basis that would require us to refuse approval for the entire wind farm – whether on impact on the public domain or as an accumulation of effects on individual properties in the vicinity of the wind farm. This conclusion also obviously applies to each of the two separate sections of the wind farm – although the impacts on individual properties are greater in the northern section. Consideration of these broad issues has arisen as a result of proceedings brought by a local community group known as Parkesbourne/ Mummel Landscape Guardians Inc (the Guardians). Although the Guardians have had what we expect they will consider to be limited success in these proceedings, we have been impressed by (and are grateful for) the impressive efforts that various members of the Guardians have made in preparing information that has assisted us in our deliberations.

2 We have, on the other hand, concluded that the impact on properties in the vicinity of the wind farm is more extensive than had been assessed by the Minister. As a consequence, we have concluded that the range of properties to be acquired or, in the alternative at the election of Gullen Range Wind Farm Pty Ltd (the proponent), have the impacts on them ameliorated by turbine removal is greater than originally envisaged.

3 As we have no evidence about what might be the viability consequences of the extent of land acquisition and/or turbine removal we require, we have set out a framework for the conditions dealing with these properties – being a framework that will provide the opportunity for the proponent to determine what mix of acquisition and/or turbine removal is appropriate whilst providing certainty of outcome to the relevant property owners within a defined period of time.

4 We are also satisfied that, if the consequence of these individual property assessments is that there is no combination of acquisition and/or turbine removal that will render the wind farm economically viable (thus resulting in our conclusions amounting to a constructive refusal of the project), such an outcome is appropriate under the circumstances.

5 We have declined to entertain claims for compensation for “blight” and have concluded that the loss of “subdivision potential” (in circumstances where no subdivision application has been lodged with or approved by the relevant consent authority) is a predictable and unexceptional outcome of the approval of the wind farm – the wind farm being a permissible use on the properties where it is proposed to be located. There is thus no basis upon which loss of future subdivision potential could require modification to or refusal of the wind farm.

6 The proposed community compensation scheme is to be less generous than proposed by the Minister for Planning (the Minister) and by Upper Lachlan Shire Council (the council); more generous than proposed by the proponent; and accessible to benefiting properties without requirement for accessing government subsidies or co-contributions from community members

7 We have dealt with a number of issues relating to calculation and measurement of noise impacts – the outcome of which will result in some minor changes to the conditions of consent.

8 Finally, we are satisfied that appropriate conditions of consent can be crafted to permit the use of the southern Crown road reserve for construction component access and ongoing transmission cabling access for connection to the State grid (provided that restrictions set out in the decision are applied in the vicinity of Gurrundah Creek near the abandoned sheep dip site).

Introduction

9 The Gullen Range runs north-south, generally, commencing some 15 km south of Crookwell on the Southern Tablelands. It comprises two groups of modest hills and saddles – rising a maximum of approximately 100 m above the adjacent valley floors. In common with other areas in this portion of the Southern Tablelands, the predictability and strength of the winds in the locality makes it an attractive location for the erection of a wind farm as is here proposed.

10 The land in the vicinity of the proposed wind farm is zoned 1a Rural Zone. It ranges from cleared flats and slopes with scattered trees to open woodland on the more elevated sections. The most common land use is the grazing of sheep and cattle. The surrounding landholdings vary considerably in their size and a number of smaller holdings should be classified as “lifestyle” allotments.

The proposal

11 In August 2007, Epuron Pty Ltd (Epuron) submitted a Major Project application to the Minister to be assessed under Part 3A of the Environmental Planning and Assessment Act 1979 (the Act), for a proposed development of the Gullen Range Wind Farm on the Southern Tablelands of NSW. Because the proposed wind farm exceeded the threshold of generating capacity necessary for it to be declared state significant infrastructure, the Minister became the consent authority for the proposal instead of the council. The application did not specify the number of turbines. However, correspondence from the Department of Planning (the Department) suggests between 80 and 93 turbines were proposed. The proposal is also classed as designated development under Sch 3 of the Environmental Planning and Assessment Regulation 2000 (the Regulation) – cl 18: Electricity generating stations.

12 The proposal is to locate the turbines in four sectors over a distance of approximately 25 km. The proposed sectors are, from north to south, known as Kialla, Bannister, Pomeroy and Gurrundah.

13 Each turbine is to be on a steel tower 85 m high and will have three blades each 47 m long. Each tower will be located on a reinforced concrete footing. Each turbine would generate between 1.75 and 3 MW to be fed into the existing State grid transmission system via a transformer through a combination of underground and overhead cables. The original project also relevantly proposed one substation and the construction or upgrading of access roads.

14 The proponent, a special purpose company and wholly owned subsidiary of Epuron, submitted an Environmental Assessment (EA) to the Department. The EA was placed on public exhibition from 4 August to 5 September 2008. Specialist assessments were carried out by the proponent to assess the impacts of the development on the areas of visual amenity, biodiversity, aviation safety, land value, operational noise, aboriginal archaeology, communications and traffic and transport. These assessment reports (and others not needing to be considered in these proceedings) were included in the EA.

15 In November 2008, the proponent submitted its final submission report to the Department. This report considered and responded to the numerous submissions received as a result of the public exhibition of the EA. The final submission proposed a final number of up to 84 turbines. The only other significant change from the original proposal was an increase of maximum turbine capacity of up to 3.3 MW. The final turbine selection has not yet been made.

16 On 26 June 2009, the Minister granted Project Approval under s 75J of the Act to the proposal subject to a range of conditions. These conditions included the removal of two groups of turbines (totalling eleven turbines) because of what the Minister considered was the unacceptable potential impact on the operation of the Crookwell airstrip. The conditions also gave an ongoing role, in a number of respects, to the Director-General of the Department of Planning (the Director-General).

The appeals

17 As a consequence of the Minister’s determination, three separate sets of proceedings were commenced challenging aspects of the Minister's determination. One element of one of those appeals (by the proponent seeking, amongst other things, the reinstatement of the turbines removed in the vicinity of the Crookwell airstrip) was determined by us as a separate and discrete issue during the course of the hearings [see Gullen Range Wind Farm Pty Limited v Minister for Planning [2009] NSWLEC 1444]. The three appeals were heard simultaneously with the evidence being, to the extent relevant, evidence in all of the proceedings.

18 At the conclusion of our decision concerning the deleted turbines in the vicinity of the Crookwell airstrip, at para 19 we said:

We are not minded to include a contingent condition dealing with this [possible reinstatement of these turbines]. We consider that it is appropriate that, if the applicant undertakes such a risk assessment, the question of reinstating those turbines can be considered on a modification application at some future time, not only in light of the risk assessment on aircraft but also in light of such comments as we might make that might be relevant concerning residences in the vicinity and the impact of turbines that are not part of the removal condition by the Minister, (in particular the more northerly of the two Price Jones residences in the vicinity).

19 During the intervening period of time, we have further considered this comment. There are potentially two areas where the reinstatement of any or all of those turbines might warrant findings. The first of them concerns the overall visual impact of the proposal (whether of the northern section or the total proposed wind farm) if any or all of the seven turbines (KIA_ 7 to KIA_14 [in an apparent bout of triskaidekaphobia, there is no KIA_13 – although there are turbines with this number in the other three sectors!]) were to be reinstated and, second, whether the reinstatement of any or all of those turbines would alter our conclusions about the impact of the proposal on any individual property.

20 However, as any conclusion we might draw concerning these turbines would be speculative at best and, in any event, can have no bearing on any matters presently requiring our determination, we have not expressed any views about the acceptability or otherwise of the impacts (if any) of the reinstatement of any or all of these turbines.

21 The appeal by the proponent, Matter No 10700 of 2009, is an appeal pursuant to s 75K of the Act against five conditions of consent. Apart from the reinstatement of turbines near Crookwell airstrip (condition 1.4), the proponent is also seeking the removal or modification of conditions relating to the relocation of turbines (condition1.5), acquisition of certain lots on a property owned by Mr and Mrs King (the Kings’ property) (condition 2.24) [Mr and Mrs King are the applicants in Matter No 10517 of 2009 – discussed below], sealing of a section of road (condition 2.44), lighting on turbines (condition 2.44) and annual contributions to the Community Enhancement Program (condition 5.6). Mr Pickles of counsel appeared for the proponent and Mr Clay of counsel for the Minister.

22 The two additional proceedings dealt with matters of impact of the proposed turbines on properties on either side of the Gullen Range. The first of these, Matter No 10545 of 2009, is a more generalised appeal brought by the Guardians seeking to challenge the consent for the wind farm on a variety of bases. This appeal is able to be brought by this community group because the proposed wind farm is designated development. As a consequence, an appeal against its approval may be brought pursuant to s 75L and s 98 of the Act by any group or individual who lodged an objection to the proposal during the assessment stage. Having lodged such an objection, the Guardians have standing to bring this appeal.

23 The main issues raised by the Guardians are:

• Inadequate regard to noise impacts
• Unacceptable visual impacts
• Inadequate regard to blade flicker impacts
• Inadequate provision for land acquisition or compensation
• The impacts of roads works in an unmade Crown road
  
  

24 The Guardians also adopted two additional elements proposed on behalf of the Kings for modification to the Minister’s conditions of consent – those being conditions relating to the acquisition and landscaping regimes

25 The principal remedy the Guardians are seeking is the refusal of the project. In the alternative, they seek removal of nominated turbines referable to impacts on various properties owned by the group’s members. If the proposal is to go ahead, the Guardians also seek the establishment of a monitoring regime and complaints resolution process, compensation for any fall in property value or loss of subdivision potential and/or land acquisition. Details of the structure of the Guardians’ submissions concerning individual landholdings are given at the commencement of our individual landholding assessments. Mr Underwood of counsel appeared for the Guardians.

26 The final proceedings, Matter No 10517 of 2009, are an appeal, pursuant to s 75L of the Act, by Mr and Mrs King concerning the effect of a number of the turbines in the southern section of the proposal. The Kings’ property is located to the west of the turbines in the Pomeroy sector. These turbines are located along the eastern boundary of the Kings’ property and impact on a number of allotments in an approved subdivision of the Kings’ property. Their right to appeal arises on the same basis as that of the Guardians. The issues raised in their application are the same as those raised by the Guardians.

27 However, in their Statement of Facts and Contentions, the Kings also raised the issue of the visual impact of any requirement to install red flashing aviation warning lights to operate at night. The Kings are seeking the removal of nine turbines in the Pomeroy sector (POM_12 to POM_20 – as per the notation system described below) or alternatively, the refusal of the project. Mr Masten of counsel appeared for the Kings.

28 The council is the third respondent in Matter No 10700 of 2009. The council took part pursuant to s 75K(3) of the Act. The council proposes two conditions that prescribe limits on where turbines can be located. The council’s proposed conditions are:

Any turbine that is visible from an existing dwelling not associated with the wind farm development is to be located a minimum of 2km from that existing dwelling.

Any turbine that may be visible from any approved house site on a lot created for residential purposes is to be located a minimum of 2km from that proposed house site.

29 These conditions are in accordance with the Upper Lachlan Shire Council Development Control Plan – Wind Power Generation 2005 (the DCP). In support of these setbacks, the council raised issues of the health impacts of wind turbine noise, the advantage of a distance-based control over a performance-based approach and the precautionary principle. The council also supported the Minister’s condition of consent relating to the annual contribution to the Community Enhancement program on the basis of it being in “the public interest” as proposed. Mr Griffiths, solicitor, appeared for the council.

30 Mr Griffiths’ submissions on this latter point canvassed the level of community compensation funding proposed by the Minister’s conditions; the fund into which this money was to be paid; and the method of distribution and expenditure of money from this fund.

31 In the proponent’s submissions in reply, the scope of our powers on these appeals were questioned – this questioning requiring consideration only if we were to propose that the proponent undertake any further environmental assessment or some environmental assessment on a different basis to that contained in the Director-General’s requirements. As we have not concluded, on merit, that such further or different assessment is required, we need not address whether or not we would have the power so to order.

Air photos

32 As part of the material produced by the proponent, marked-up air photos were tendered for each of the northern and southern sections of the Gullen Range upon which the turbines are proposed to be located. These air photos have been marked with the location of the various elements of the proposal comprising the turbines; the connecting cabling; access roads; and an electricity substation at the point of connection to the main state-wide electricity distribution grid. As will be discussed in more detail later, some of the cabling is to be underground and other elements of the cabling are to be above ground.

33 The turbines in the wind farm have been divided into four sectors. These sectors, running from north to south, were listed earlier. The list is repeated below together with the identifying prefix given to each of the proposed turbines in each of these four sectors.

34 The turbines required by the Minister to be removed as a consequence of their proximity to Crookwell airstrip were in the Kialla sector at the northern end of the northern sector of the wind farm. These turbines were in two groups and were KIA_3 to KIA_14 in this sector.

35 The wind farm’s substation, located in close proximity to a high voltage transmission line to facilitate access to the statewide grid, is marginally to the west of turbine POM_1.

36 The dwelling locations are indicated on the air photos as black squares and a letter and number eg. G23, PW16, B24, K22. The public domain viewing points from where photomontages were created are marked in red eg. VP3. Turbine locations are marked with a black dot (for those approved by the Minister) and a red dot (for those in the Kialla sector not approved by the Minister). Turbine numbering reflects the sector prefixes noted above.

37 At this point, it is appropriate to note that the properties in the vicinity fall into two general classes. These are properties associated with the development (these are hosting turbines or other infrastructure) and those other properties, known as non-associated properties – being landholdings that are not contracted to form part of the scheme. Visual, shadow flicker and noise impacts on associated properties are not relevant in these proceedings.

38 As earlier noted, dwelling locations on various properties were identified and numbered. Although the Guardians’ material used a different numbering system for the dwellings, for convenience, we propose to adopt and refer to the numbering system used by the proponent. We do so because this is the numbering used on the air photos we reproduce below. These comprise, first, the northern section air photo of the Gullen Range and, below that, the air photo of the southern section of the Gullen Range. Although these are reproduced in smaller size than those that were tendered, they are still sufficiently clear to provide an understanding of the wind farm in light of the explanation we have set out above.

39 The outer boundaries of the northern and southern groups of associated properties were also marked in heavy black lines on the northern and southern air photos. Those elements of associated properties marked with heavy unbroken black lines host elements of the project whilst those with heavy broken black lines are within associated landholdings but do not host elements of the project.

40 The broken red lines represent the outer rim of an area, in each air photo, defined by being within 2 km from the nearest proposed turbine location. The broken red line is drawn, for the northern section of the wind farm, on the assumption that the deleted Kialla sector turbines would form part of the proposal.

[<img src="/lecjudgments/2010nswlec.nsf/files/First_after_para_40.JPG/$file/First_after_para_40.JPG" alt="1st after 40">]

[<img src="/lecjudgments/2010nswlec.nsf/files/Second_after_para_40.JPG/$file/Second_after_para_40.JPG" alt="2nd after 40">]

Structure of this decision

41 To provide assistance in understanding the structure of our consideration of the physical and visual impacts said to exist from the proposal, it is appropriate that we describe the structure that we have adopted for this purpose.

42 As earlier discussed, the proposed wind farm is to be in two distinct sections. We have, therefore, dealt with each of these sections separately. When considering the individual properties, we have done so in a fashion that effects a descriptive circumnavigation of each of those sections (with the exception of the Kings’ property which abuts the central western portion of the southern section). The Kings’ property is not included in the southern circumnavigation as it is the subject of separate proceedings and, thus, warrants a separate portion of the judgement. We have commenced with the southern section as the site inspections commenced with this section.

43 We also note that B33 is one dwelling that would be significantly impacted by the proposal; is not a dwelling on an associated property; and is also not a dwelling whose owner is a member of the Guardians. However, because proper planning involves consideration of all of the impacts of the proposal, at an appropriate time when discussing individual properties in the south-eastern area of the northern section of the wind farm, we deal with the impacts of the wind farm on this property.

44 There were also a number of specific construction impacts to be considered as well as a number of questions of aggregated impact. For those reasons, we have adopted the following structure for the discussion that follows:

• Construction impacts
• Visual impact on the public domain
• Individual Guardian properties (+ B33)
  
  

§ Southern section

Ø Mummel area

o Clark

o Greeshaw

o Brooks

o Bridge

o Cox

o Aboutaka

o Scott

o Madden

o Jones

o Dallas

o Watson

Ø North-eastern area

o Johnson

o Benjamin

o Ikin

o Barber

o Price

o Formby & Brown

Ø Christie subdivision allotments

§ Northern section

Ø South-eastern properties (+ non- Guardian B33)

o Picker-Wales

o Evans

o B 33

Ø Central-eastern properties

o H Price-Jones

o G Price-Jones

o Raggett

Ø Northern property

o Murphy

Ø North-western properties

o Dennis Hewitt

o P Hewitt

o Hyde

o Hogan

o Ryman

Ø South-western properties

o Montgomery

o Werrin

o Daniel Hewitt

o Toole

• The Kings’ subdivision (Lots 5 to 12)
• The cumulative impacts on individual properties in the northern section and on individual properties in the southern section (including the Kings’ property)
• Cumulative impact overall on all properties involved in both sections
  
  

Wind farms in a rural landscape

45 In the prologue to his decision in Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd [2007] NSWLEC 59; (2007) 161 LGERA 1 (the Taralga wind farm proceedings), Preston CJ said the following with respect to wind farms in a rural landscape:

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

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

46 The community group in these proceedings, the Guardians, has a similar perspective on this proposed wind farm in their landscape. Equally, others who objected to this proposal but who are not members of the Guardians raised similar objections.

47 There is, however, in these proceedings, at least one significant difference from the circumstances with which Preston CJ was faced in Taralga. In the Taralga wind farm proceedings, the line of turbines in that wind farm ran across the field of vision of a modestly concentrated population centre comprising the rural village of Taralga. Rural residences, on non-associated properties, were comparatively sparse and spread out. In addition, the presence of the Cockbundoon Range (and the wooded barrier it provided to the east of the proposed Taralga wind farm) meant that there were very few residences on rural properties to the east of the most easterly line of turbines that needed to be considered for that proposed wind farm.

48 Here, as can be seen from the earlier reproduced air photos, there are residences in comparatively close proximity to the Gullen Range (to both the east and the west of both its northern and southern portions). The township of Grabben Gullen is located approximately 3 km to the west of the Bannister sector. A common concern voiced by many of those individuals who gave evidence in the Guardians’ case is that there are 32 non-associated residences within 1.5 km of one or more of the turbines and about 60 non-associated residences within 2 km of one or more of the turbines.

49 Equally, although there is a nearby township of Crookwell and a major urban area of Goulburn in the region of the wind farm, the proposed Gullen Range wind farm will not be visible significantly (or at all) from these settlements.

50 The consequence of that set out immediately above is that the assessment of this wind farm in its rural landscape requires a series of impact assessments on individual rural properties greater in number than that which was required for the Taralga proposal. Those individual assessments dealing with issues such as visual impact; noise impact; and shadow flicker are set out later in this decision.

The field inspections

51 We spent two days and a portion of a night undertaking extensive field inspections. For reasons of time constraint, even within two full days, it was not possible to visit every property to assess the impacts raised by the Guardians with respect to that property.

52 However, in addition to those properties that we were able to visit, other affected landholders were able to speak to us about their concerns from locations in the vicinity of their landholdings. During the course of hearing from these landholders, notes were taken of this informally given evidence and those notes were subsequently tendered.

53 As part of the EA, the proponent had had its visual impact assessment expert, Mr Wyatt, prepare a number of photomontages showing the proposed turbines in the landscape from various locations. In response to contentions raised by the Guardians, Mr Wyatt also prepared supplementary photomontages from various affected properties. These were tendered as part of his evidence. The nature and location of these photomontages are discussed, in detail, where relevant to be considered for a particular location.

54 In general terms, Mr Wyatt's photomontages were used during the course of the field inspections, and at a number of public domain and private landholding viewing locations to understand what would be seen from each location when looking in the direction toward which each base photograph had been taken. A more detailed explanation of the nature of the photomontage as produced by Mr Wyatt is given later.

55 Finally, with respect to the field inspections, there are three specific elements that should be noted in addition to the general description given above. Two of these relate to an existing wind farm on the Cullerin Range some 30 km west of Goulburn and 12 km to the east of Gunning. This wind farm is immediately to the west of the Hume Highway (the highway) where this road passes within a few hundred metres of the closest of those turbines. The third relates to the inspection made of the Kings’ property as this is an inspection relevant both in their specific proceedings and in the general proceedings.

The Cullerin Range wind farm

56 The Cullerin Range wind farm comprises 15 turbines – each of which has a turbine housing height of 85 m and an uppermost rotor to a height of 135 m. The majority of the turbines run along the ridge in a north/south direction with several more to the west in a line roughly perpendicular to the line of the majority of the turbines. The separation between turbines is some 400 m or so.

57 At the commencement of the second day of the field inspections, we drove to the Cullerin Range wind farm. When approaching this wind farm from Goulburn, we stopped, on the side of the highway, some 3.4 km to the east of the closest turbines. This viewing location gave us an appreciation both of the cluster of turbines at the southern end of this wind farm and an impression of these turbines in linear spread.

58 Some 400m from the closest turbine, Lerida Road North joins the highway and runs, generally north-westerly, along the base of the Cullerin Range and the southern end of the wind farm. We took this road and turned left along a track located on a Crown road reserve. This track climbed the Cullerin Range to a communications tower and associated facilities. Immediately adjacent to this communications tower (but across a fence) are located a number of the turbines. When we arrived, the turbines were not turning and we were subsequently informed that they had been stopped to permit network maintenance in the vicinity. As we drove away to commence our visit to sites selected by the Guardians, we observed that that the turbines had started to turn. As a consequence, we returned to the communications tower and walked close to one of the turbine towers. During the course of this revisit, we were able to gain an appreciation not only of the visual presentation of the moving blades in the landscape but also to hear, both up wind and downwind, the noise of the turbines. We did this from points only some 200 m or so from the closest rotor.

59 For aviation safety reasons, seven of the 15 turbines of the Cullerin Range wind farm have flashing red LED lights located on top of and at the rear of the turbine housing or nacelle. Each of the affected turbine housings with such lights is fitted with a pair of these lights.

60 Although the Minister's conditions of development consent for the Gullen Range wind farm do not include any requirement for such lighting, the proponent and the Minister agreed that a condition prohibiting such lighting would be appropriate for the Gullen Range wind farm. If such lighting were validly to be required by the Civil Aviation Safety Authority (CASA), such requirement would, by virtue of s 109 of the Commonwealth of Australia Constitution Act, override any State planning prohibition contained in the conditions of development consent.

61 As a consequence, we agreed to undertake a night-time inspection of the Cullerin Range wind farm to obtain an appreciation of what might be the visual impact of the flashing red lights. Although we did not stop at an observation point on the highway whilst approaching the wind farm from Goulburn, its lights were obvious from a considerable distance. The evidence discloses that they can be seen from some parts of Crookwell, a town located some 6 km or so in a generally northerly direction.

62 During the night-time inspection, we again drove up to the communications tower via the track on the Crown road reserve. As the evening was comparatively cloudless and we had a full moon, we were able to appreciate the likely maximum night-time visibility of the turbines and their moving blades as well as to see the flashing lights close-up.

63 After leaving the vicinity of the communications tower, we then drove to a point on the old Hume Highway, now known as the Old South (or Cullerin) Road, where we were able to see all seven of the sets of turbine nacelle lights from a distance of some 8 km.

The planning context

64 The vast majority of the properties that are non-associated objector properties are located in the council’s local government area. This shire was created by the amalgamation of two pre-existing shires, Gunning Shire and Crookwell Shire, and the addition of a significant portion of a third, Mulwaree Shire. The residual portion of Mulwaree Shire was added to the Goulburn City local government area to form the Goulburn Mulwaree Council local government area. The consequence of this is that three Local Environmental Plans (LEPs) apply to land in the vicinity of the Gullen Range wind farm.

65 In addition, the council presses planning controls contained in the DCP as being applicable to this proposal. To the extent that the DCP might be applicable, it is obviously only applicable to those residences within the boundaries of the council's local government area.

66 The consequence of this is that a number of the objector properties in the vicinity of the south-eastern corner of the southern section of the proposed wind farm are across the shire boundary in the Goulburn Mulwaree Shire local government area and thus, if it were applicable, would not have the benefit of any of the provisions of the DCP. The following Guardians members’ properties are located in Goulburn Mulwaree Shire: the Aboutaka, Bridge, Brooks, Clark, Cox, Dallas, Greeshaw, Jones and Watson properties.

67 Finally, with respect to the planning controls, it should be noted that the question arose for consideration relating to the subdivision potential (under the various LEPs) of various present landholdings.

68 There are a variety of subdivision minimum allotment size provisions applying at the present time depending on which LEP of the former local government areas is applicable. The council has also prepared a draft shire-wide LEP based on the state-wide template. This draft LEP has been on public display and the evidence of Mr Mowle, the council's Director of Environment and Planning, was that the councillors were meeting, in a workshop, in mid-December 2009 to consider whether or not any changes should be made to the draft as a result of the public comments.

69 Although Mr Mowle expressed the hope that the new LEP would receive Ministerial approval, and come into effect, in the first half of 2010, this was a speculative proposition, at best. We do not consider that the draft LEP would therefore be regarded as being either imminent or certain and therefore should be given no weight in these proceedings.

70 In addition, the draft LEP includes a standard clause, clause 1.8A, which is the common transition provision in the template LEP. This transition provision is in the following terms:

1.8A Savings provision relating to pending development approvals

If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had been exhibited but had not commenced.

71 As a consequence, even if we are wrong in concluding that the draft LEP should be given no weight in these proceedings, we are satisfied that it is probable that any subdivision application lodged under any of the presently applicable local environmental plans would be predominantly assessed against the terms of the existing applicable local environmental plan. We set out this conclusion because the ability to subdivide into a number of smaller and more lifestyle oriented rural allotments will be curtailed when the draft LEP comes into effect (unless there are significant changes to the presently proposed zonings) for the potentially affected properties in the vicinity of this proposed wind farm. We note that we do not understand there to be any undetermined subdivision applications (to either council) with respect to any property that is relevant in any of these proceedings.

The genesis of the DCP

72 In his statement of evidence, Mr Mowle said the following concerning the genesis of the setback distances contained in the DCP:

These setback distances were generally based upon overseas research, particularly papers presented by Dr Robyn Phipps (Massey University, New Zealand) and Dr Nina Pierpont (USA). A copy of these papers are [sic] attached at Appendix 5.

73 During the course of his oral evidence, Mr Mowle was asked, by Mr Pickles, whether these controls had been changed after the council had reviewed that the terms of the DCP in each of 2007 and 2008. Mr Mowle said that the controls had not been changed and remained in the form originally adopted by the Council on 24 September 2005.

74 The combination of his original statement of evidence and this exchange during the course of oral evidence causes us significant disquiet about the evidence given by Mr Mowle and the extent, if any, to which credibility can be attached to what he has written or said.

75 This concern arises because it is clear, as he had admitted during the course of his oral evidence, that the two documents he asserted were the research foundations for the controls in the DCP were, in one instance, written at least three months after the date of the council meeting in 2005 when the DCP was adopted (as this document cites another paper presented on 14 December 2005) and, in the second instance, was written no earlier than at least some time in 2006 (as this document cites material originating some time during that year).

76 Under further questioning, Mr Mowle revealed that he did not know what was the basis for the setback controls in the 2005 DCP but that he understood, anecdotally, that they had been developed from (unspecified) material made available by elected members of the council.

77 At its most charitable, the approach that Mr Mowle has taken to the preparation of his evidence concerning the DCP could be described as sloppy in the extreme. To the extent that matters concerning the DCP require consideration of his evidence, we consider it to be unreliable. Had other matters arisen in the proceedings where his evidence was in conflict with evidence from other witnesses or appropriately validated documents, circumstances which fortunately have not arisen, we would have had great difficulty in placing any reliance on his evidence. We would have preferred the other evidence to any evidence given by him unless that other evidence were also undermined as to credit to a similar extent as his is or his evidence had been corroborated by other, reliable evidence.

The provisions of the DCP

78 There are a number of controls in the DCP, contained in cl 8, that are said by Mr Griffiths to be relevant. These controls are as follows:

e) Proposed wind turbines shall comply with the South Australian EPA Wind Farms Environmental Noise Guidelines. Note that where noise levels are found to exceed EPA guidelines, Council may require remediation work such as cessation or decommissioning of the turbines to reduce the noise impacts on sensitive receptors such as non related dwelling.

f) Where visible from a non related dwelling or immediate surrounds, the development shall not be located within 15 times the blade tip height or 2.0 kms (which ever is the greater) of any dwelling not associated with the development or 15 times the blade tip height or 2.0 kms (which ever is the greater) from any lot that has been created for the purpose of a dwelling. Where turbines are proposed to be significantly higher that such properties/dwellings or where the turbines will dominate the immediate view from the dwelling or dwelling lot, increasing these separation distances is recommended.

79 With respect to the requirements in the controls relating to the application of the 2003 South Australian Environmental Noise Guidelines: Wind Farms, this provision is mimicked in the Director-General's requirements and is uncontroversial save to the extent that it has been submitted that the 2009 South Australian Wind Farms Environmental Noise Guidelines should be applied rather than the 2003 version. This matter is dealt with elsewhere in this decision.

80 The imposition, if the DCP were applicable, of a 2 km radius [in this case] turbine visibility exclusion zone from any existing dwelling or allotment where there is an existing dwelling entitlement has been described by Mr Witherby, the proponent's town planner, as being “a crude tool”.

81 Before we turn to deal with an extent to which this provision, if relevant, would be of utility, we regret that it is appropriate that we make some further commentary on the quality of Mr Mowle’s evidence. Mr Mowle prepared a series of air photos on which he had marked those turbines that he considered did not comply with the exclusion zone requirements of the DCP. Mr Griffiths tendered those marked air photos. Those air photos had been used by Mr Mowle to mark, with crosses, those turbines that he considered did not comply with the exclusion zone requirements of the DCP and those that Mr Mowle assessed as compliant were circled.

82 When questioned why the location of turbine POM_19 – some 15 m or so from the boundary of an allotment with not merely a dwelling entitlement but with a fixed location building envelope pursuant to plans incorporated in the development consent (this being one of the allotments in the Kings’ subdivision) – was not shown as being a turbine that he considered did not comply with the exclusion zone requirements of the DCP, Mr Mowle conceded that he had, in fact, only made his assessment based on presently existing dwellings on the non-associated properties rather than on the second limb of the exclusion zone tests in the DCP relating to allotments with a dwelling entitlement.

83 Mr Mowle further conceded that, if allotments with dwelling entitlements were taken into account, it would be unlikely that any significant number of turbines in the presently proposed wind farm would satisfy this provision of the DCP. His approach to this issue in the preparation of his evidence demonstrated the same degree of unacceptability, for the same reasons, as earlier discussed.

84 In final submissions, Mr Clay and Mr Pickles both raised the issue of the relevance of the DCP to our decision. Section 75J(3) of the Act says:

(3) In deciding whether or not to approve the carrying out of a project, the Minister may (but is not required to) take into account the provisions of any environmental planning instrument that would not (because of section 75R) apply to the project if approved. However, the regulations may preclude approval for the carrying out of a class of project (other than a critical infrastructure project) that such an instrument would otherwise prohibit.

85 Section 75R says:

(3) Environmental planning instruments (other than State environmental planning policies) do not apply to or in respect of an approved project.

86 Putting a contrary view, Mr Griffiths submitted that s 39(4) of the Land and Environment Court Act 1979 (the LEC Act) and its reference to the ‘public interest’ requires us to consider the DCP. Mr Maston submitted that no provision of Part 3A of the Act inhibits the Court, on appeal under s 75L, from having regard to any relevant standard. Mr Maston submitted that the DCP represents the will of the local community as council has reviewed the DCP on no less than three occasions.

87 First, we note that the definition in the Act of "environmental planning instrument" is in the following terms.

"environmental planning instrument" means an environmental planning instrument (including a SEPP or LEP but not including a DCP) made, or taken to have been made, under Part 3 and in force.

88 The consequence of this is that the discretionary opportunity to consider an environmental planning instrument provided by s 75J(3) of the Act is not enlivened with respect to the DCP. As a consequence, we consider that there is no basis upon which we could have regard to the DCP within this statutory framework.

89 However, if we are correct in reaching this conclusion, this does not entirely remove any opportunity to consider the DCP. In Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195, Mason P said, at para 81:

A consent authority may range widely in the search for material as to the public interest.

90 As a consequence, subject to what we discussed earlier about the basis upon which the DCP has been developed, the DCP might be capable of consideration on a broader “public interest” basis.

91 In this instance, it is relevant to note that McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at para 87, in his second dot point, said:

A development control plan adopted after consultation with interested persons, including the affected community, will be given significantly more weight than one adopted with little or no community consultation.

92 In this context, evidence that we have concerning the genesis of the DCP is that provided by Mr Mowle as discussed earlier. For the reasons we earlier set out, it is clear from proper consideration of his evidence that we have no basis upon which we could establish the provenance or derivation of the numerical controls contained in the DCP. Absent such provenance or derivation, we are left with only the conclusion that what is colloquially described as “the streaker’s defence” – it seemed like a good idea at the time – could be applied to these numerical controls in the DCP. This is not a proper basis upon which to found numerical controls that relate to structures of the type that are not commonly dealt with through such controls (unlike, for example, conventional building heights or floor-to-ceiling distances within built structures where there is a widely understood general numerical range for such controls).

93 As a consequence, on this second basis, we do not consider it is appropriate to pay particular regard to the numerical controls in the DCP and we propose to proceed to deal with an individual assessment of the impacts on specified properties having regard to topography, orientation of dwellings, distances to and numbers of visible turbines and the like.

Issues

94 The issues that were raised by the parties in the proceedings fall within five categories. First, conveniently, it is appropriate to deal with those matters that were raised as issues by the objectors that are not properly matters capable of being considered by the court in an appeal such as this. Second, there are those matters that related to what data was required or how data should be collected. Third, there arose a number of issues that relate to construction of elements of the proposed wind farm comprising construction of elements that are not specifically of a wind farm nature such as road construction. Fourth, there are those issues that arise specifically from potential impacts of the location and nature of the structures that are idiosyncratically part of a wind farm. Finally, there are several framework issues that arise concerning the operation and structure of any consent that might be granted to the wind farm.

Issues not capable of consideration

95 A number of the objectors raised the issue of blight (or impact on property values) if the wind farm were to be permitted. As discussed in more detail below, these are matters not capable of consideration by the Court.

Issues of a general nature concerning project construction

96 Two issues arose concerning the proposed construction of an access road and the installation of underground power cabling along a presently unconstructed Crown road.

Data and methodology framework issues

97 Particular issues arose concerning noise including the nature of the noise that might be experienced at various locations; where and how it was appropriate to measure wind speeds; and what would be the resulting noise impacts, if any, if different methodological approaches were taken.

Impacts arising from wind farms

98 There are three adverse impacts that potentially arise from the establishment of a wind farm. These potential impacts can be impacts on existing or future residences but can also be on the broader public domain.

99 The first of these is the visual impact of the turbines in the landscape and, if they are lit at night for aviation safety reasons, the visual impact of the flashing red lights in the night sky. Visual impact is one that requires to be assessed not merely from individual residential or potential residential locations but also from the broader public domain.

100 The second potential impact arises from the noise caused by the operation of the turbine blades. There are a number of noise effects that arise in varying operational and meteorological conditions.

101 The third effect is known as shadow flicker and arises from the movement of the turbine blades if they are between an observer and the rising or setting sun.

102 Each of these effects is explained in more detail below in the relevant section of this decision dealing with that topic.

Development assessment and consent framework issues

103 The matters that arose of this nature concerned three distinct matters.

104 These were:

• how the conditions of consent would operate with respect to property acquisition or, in the alternative, turbine removal;
• how the money proposed to be provided by the proponent for community compensation would be calculated and administered; and
• whether or not, in a specific instance raised with respect to the Kings’ property, the proponent should be permitted to relocate turbines to positions that might become available if portion of the Kings’ property were to be acquired by the proponent.

Assessment perspectives of windfarm impacts

105 There are a variety of different locations raised by the Guardians and Mr and Mrs King from which it is necessary to make an assessment of either all of the proposed wind farm or of individual elements of it. For each of these types of location, an assessment will be required of the possible visual impact; noise impact; and shadow flicker impact as relevant. In addition, it is necessary to consider what would be the cumulative impact of any combination of these arising at those receiver locations.

106 These locations fall into three separate categories. They are:

• Locations in the public domain;
• Existing residences and existing allotments with a dwelling entitlement; and
• Those landholdings said to be able to be subdivided in order to create dwelling entitlements and thus the impact on a dwelling on such a hypothetically subdivided allotment.
  
  

Compensation and loss of value

107 A significant number of the individual objections raised concerns about the impact on the potential resale value of their property if the proposed wind farm were to be constructed. Compensation was requested to be required to offset this loss of value.

108 There is no loss of value issue to which we are lawfully able to have regard in these proceedings. The proposal is one that is permissible with development consent and, as we have undertaken in the main body of this decision, is to be tested as to its acceptability both in a general sense and as to the impact on individual properties. To have regard to fears of a loss of value for properties, fears which may or may not be realised (but which we accept are genuinely and honestly held) are not matters that we are permitted to take into account in these proceedings. To do so would, on our understanding, constitute an appealable error.

109 With respect to such requests for compensation for “blight”, Preston CJ said in Taralga:

The concept of “blight”

150 The Guardians advance the proposition that a consequence of approval of the wind farm will be that a number of properties which are in the vicinity will suffer from “blight” for which there should be payment of compensation if the project were to be approved.

151 The blight which is described as occurring relates to the loss of future property value or from loss of amenity.

152 The loss of value is said to arise either because of a general amenity impact from the presence of the turbines or because some anticipated subdivision development – whether by way of concessional allotments or otherwise – may not be able to occur or, if permitted by the Council, would have the amenity of the resulting allotments so impacted by the wind farm that they would be unable to be sold.

153 The Guardians say, as a consequence of this blight, there should be a general requirement for those who can demonstrate such an effect to be compensated, monetarily, for that blight. They say that this compensation should be assessed consistent with the statutory approach laid down in the Land Acquisition (Just Terms Compensation) Act 1991 (NSW).

154 Such a proposition faces a number of insurmountable hurdles.

155 The first is that the wind farm, as earlier noted, is a permissible use on all of the parcels of land upon which it is proposed to be located.

156 The second is that, although it is appropriate to consider the possibility that ameliorative works might be required to be undertaken by a proponent for landholders who might otherwise be adversely impacted (but not so adversely impacted to warrant refusal of the proposal or any part of it), what is sought is not remedial measures but payment of monetary compensation.

157 The third is that, whilst I have decided, for reasons I have given below, there are two properties which are sufficiently impacted that it is appropriate to require RES Southern Cross to purchase them (should their owners elect to sell), that is a matter where, again, the choice of response is in the hands of the two landholders.

158 Although there are elements of public interest and public policy issues associated with this proposal, nonetheless, the project remains one by a private developer on land where it is permitted. It is, although of a significantly large scale, nonetheless on all fours with a similar development in any other context which met the same criteria.

159 If the concepts of blight and compensation, as pressed by the Guardians, were to be applied to this private project (a proposition which I reject) then any otherwise compliant private project which had some impact in lowering the amenity of another property (although not so great as to warrant refusal on general planning grounds when tested against the criteria in s 79C of the Act) would be exposed to such a claim.

160 Creating such a right to compensation (for creating such a right it would be) would not merely strike at the basis of the conventional framework of landuse planning but would also be contrary to the relevant objective of the Act, in s 5(a)(ii), for “the promotion and co-ordination of the orderly and economic use and development of land”.

110 Nothing has been demonstrated to us that would lead us to the opinion that there has been any change to this position since Preston CJ enunciated it. As a consequence, we decline to consider any issues relating to claims for compensation.

General construction issues

The Crown road

111 The proponent proposes that the alignments of two unmade Crown roads will be used for purposes associated with the substation that is to be located toward the north-eastern corner of the southern portion of the proposed wind farm. These are for construction access and for underground cabling.

112 The alignment of one of the unmade Crown roads is proposed to be used to construct an access road to bring structural components needed for the construction of the proposed wind farm elements in this sector to their proposed sites. This arises because an alternative access (using a second unmade Crown road for part of its path) is said by the proponent not to be feasible as two landholders who are opponents of the wind farm have not granted consent to cross their properties. There is also said to be an existing high voltage transmission tower that presents a problem using this Crown road (unless there were an easement over an objector property to avoid the tower).

113 No action has been initiated, pursuant to relevant provisions of either the Conveyancing Act 1919 or the Land and Environment Court Act 1979 to obtain the very modest easements over these objectors’ properties that would be necessary to utilise the existing public road sections and shorter element of the second unmade Crown road. However, two factors render the possibility of easements irrelevant. These arise from our conclusions that:

• there are no insuperable barriers to using the southern of these Crown road (as discussed below); and
• if the proponent acquires the Johnson’s landholding (rather than deleting turbine POM_01) – as these alternatives will arise from the individual property assessments discussed later, easements would not be required (as we understood from our drive along the northern of these Crown roads during the field inspections).
  
  

114 In addition, each of the Crown roads is proposed to be used to bring an underground electricity cable to the substation to feed electricity generated by the wind turbines into the state's main electricity grid – a transmission line of which, as earlier noted, passes across an associated property near the proposed substation.

115 The trenching to bring this underground cabling needs to be excavated, for electrical safety reasons, approximately 1 m deep and between 500 mm and 1 m wide. There is no issue or controversy concerning the use of the shorter length of Crown road, that is the northern access route, for cabling (rather than construction vehicle traffic) but there are two issues associated with the use of the southern of the two unmade Crown roads.

116 The longer (the southern) of the two unmade Crown roads has two issues raised by the Guardians concerning its development for the purposes of the wind farm. These are set out in more detail immediately below but relate to possible disturbance of contaminants near an abandoned sheep dip and the possible disturbance of Aboriginal cultural items. These issues arise from the discovery of scatters of aboriginal cultural material on portions of the Crown road and from the fact that, in close proximity to Gurrundah Creek, the Crown road passes within 20 m or so of a sheep-dipping site.

117 An additional matter was raised by Mr Phillip Price, a member of the Guardians, relating to platypus habitat in the vicinity of this Crown road.

118 After visiting the Ikin property (discussed when dealing later with individual property assessments), we traversed the paddocks to a point opposite on the upper slope of a steep gully above and on the opposite side of Gurrundah Creek to the sheep-dip site and the south-western section of the Crown road on the Phillip Price property. In this vicinity, the Crown road is unmade but its route follows a fence line in an east-west direction, turns 90 degrees south down a steep slope to Gurrundah Creek and then turns 90 degrees to the east along the creek and immediately to the south of a farm dam.

Sheep-dip and possible contamination

119 The sheep dip site, on the basis of anecdotal evidence given to the proponent's contaminated sites consultant, Mr Hobbs, by Mr Phillip Price, operated between approximately 1950 and approximately 1980. According to this anecdotal evidence, in the earlier part of its operation, arsenic-based dipping compounds were used and, towards the end of its operation, these had been replaced with organophosphate or organochlorine pesticides. Mr Hobbs reported that there were several rusting drums at the site, labelled as containing the active constituent ‘Diazinon’ (an organophosphate). This is consistent with the anecdotal evidence.

120 The point where trenching for a cable crossing and any constructed road crossing of the creek would take place is down-slope from the sheep dip site.

121 Mr Hobbs provided a statement of evidence and also gave oral evidence concerning the sheep dip site. In his statement of evidence, relevantly, he said:

Based on my observations the site exhibited the potential for the presence of elevated concentrations of soil contaminants, such as arsenic and other associated dipping/drenching compounds (including organophosphate and organochlorine pesticides), which would have been typically used as treatment chemicals at such sites.

Based on my observations of the site it was apparent that the slope of the land was to the north and west from the sheep-dip structure which is in the direction of the proposed Crown road reserve. If contaminants were released from the sheep-dip structure it would therefore be reasonable to assume that they may have migrated in a down-gradient/down-slope direction toward the Crown road reserve.

I am therefore of the opinion that it would be prudent to assume that there is a reasonable chance of disturbing contaminants, if present, during future site works associated with the proposed Crown road.

122 During the course of Mr Hobbs’ oral evidence, he made it clear that his assessment of the sheep dip site was based on a surface assessment only and that no soil sampling or subsurface investigation had been carried out by him. He said that it would not be possible to understand whether and to what extent there might be a risk of mobilisation of contaminants if there were to be excavation at or in the vicinity of this site without undertaking soil sampling and analysis of what contamination, if any, might actually be present.

123 During the course of this inspection, Mr Phillip Price gave evidence that his domestic and stock water supply was pumped from Gurrundah Creek 100 m or so downstream of the point where the Crown road reserve crossed the creek.

124 On the basis of the uncontradicted expert evidence of the proponent’s own witness concerning the inadequacy of the information regarding contamination risks from the sheep dip site, particularly given that there is a water supply for human and livestock consumption drawn from Gurrundah Creek in reasonable proximity downstream from a location where potentially serious contaminants might be mobilised during the course of construction, we do not consider that it would be responsible, on a precautionary basis, to permit any excavation in the vicinity of the sheep dip site.

125 We have considered whether or not we could impose a condition that would preclude such construction unless and until the Director-General was satisfied that there was no likelihood of contaminant mobilisation into Gurrundah Creek from such construction activity or that there was, in fact, no such down-slope contamination capable of being so mobilised but we are satisfied that such a condition is not appropriate. We have reached this conclusion because we consider it preferable that we deal with this matter to finality.

126 As a consequence, we require the conditions of consent to be amended to require that no soil disturbing activities of any nature are permitted in this Crown road reserve between Gurrundah Creek and 10 m upslope from the northern end of the abandoned sheep dip site. We consider that, in light of Mr Hobbs’ evidence, the incorporation of a prudent upslope separation from the northern end of the abandoned sheep dip site will provide a sufficiently precautionary buffer.

127 Placing the restriction on the use of the Crown road in this fashion will not, therefore, preclude the proponent from exploring engineering solutions that would obviate the necessity for any soil disturbance in the area where there is the potential to mobilise contaminants. Equally obviously, this requirement may be the subject of some modification application, in future, if the proponent can establish some proper evidentiary basis for any proposed modification after some proper testing regime is undertaken as envisaged by Mr Hobbs’ evidence.

Archaeological issues

128 We have also been provided a report concerning aboriginal artefact scatters within the Crown road reserve. This report, from Ms Dibden, an archaeologist retained by the proponent, is uncontradicted expert evidence on this issue. Ms Dibden’s statement of evidence contained the following conclusion:

The opening up of the Crown road will result in impacts to Indigenous artefacts (including both recorded artefacts and those which are predicted to be present); any Indigenous artefacts which are present will be comprehensively disturbed as a result of road construction and/or the installation of transmission lines. However the impacts will disturb Indigenous artefacts which are assessed to be of low significance.

In addition, given the small development footprint in the Crown road (that is – an impact area which is discrete, linear and narrow), the proposed impacts to Indigenous artefacts can be considered likewise to be discrete and minimal in nature. The corollary of this is that Indigenous artefacts which are situated to and outside the Crown road within the broader landscape will not be subject to impacts relating to the proposal.

129 Ms Dibden was not required for cross-examination by the Guardians. We have no basis upon which we could question her conclusions and, as a consequence, we accept her uncontradicted evidence. It therefore follows that, subject to the seeking of appropriate approvals under the National Parks and Wildlife Act 1974, we also accept that the nature of the aboriginal cultural material on the Crown road is such that it does not provide any basis upon which we could require modification of the proposal nor does it warrant refusal of the proposal.

Platypus habitat and the Crown road

130 In addition to Gurrundah Creek, there are two large farm dams in this immediate area. Mr Price gave uncontradicted evidence that they contained platypus. Platypus were not identified or listed in the biodiversity assessment carried out for the EA. As we have no reason not to accept Mr Price’s observations, any road construction and interference with Gurrundah Creek must take into account potential impacts on platypus. An ecologist is to be engaged by the company to undertake a detailed survey of the creek. The Director-General is to be satisfied that any measures that would need to be to be undertaken to mitigate any negative impacts on platypus habitat and activities are to be implemented.

Data and methodology issues

Noise

131 On 12 November 2009, the Court directed the Guardians’ acoustic expert to provide a list of concerns and then confer with the proponent’s and the Kings’ acoustic experts. A joint report of acoustic experts was submitted as evidence. The Guardians retained Dr Tonin and the proponent retained Mr Turner. The concerns raised by the Guardians related to:

• the Van den Berg modulation/effect;
• noise impact at night;
• should wind speed be referenced at hub height;
• data analysis;
• noise mitigation;
• turbine options; and
• peer review of consent approval.
  
  

132 The Van den Berg Effect is described by Preston CJ in Taralga, in para 229, as:

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

133 Dr Holmes and Mr Purton, meteorologists for the Guardians and the proponent respectively, authored of a joint report entitled ‘Analysis of Meteorological Data for Gullen Range Wind Farm’. Based on this meteorological analysis, Dr Tonin and Mr Turner agreed that the Van den Berg modulation is unlikely to occur at any relevant location, or if it does, it would occur infrequently. We accept this uncontradicted expert evidence that the Van den Berg effect is unlikely to occur and it thus cannot be the basis for any modifications to the proposal.

134 With respect to noise levels at night, Dr Tonin expressed the opinion that the proponent should be required to undertake night-time assessments of background noise levels and a revised noise assessment for the final turbine model for night-time noise. He argued that the base limit between the hours of 2200 to 0700 should be 40dB(A) rather than 35dB(A). This noise level is based on the World Health Organisation (WHO) recommendations for internal noise level of 30dB(A) for bedrooms coupled with the assumed noise reduction through an open window of 10dB(A) for NSW conditions (the latter being based on published criteria for industrial noise and road traffic noise).

135 The actual WHO guidelines are 45dB(A) and this level was used by Marshall Day Acoustics (MDA) in the preparation of the noise impact assessment in the EA.

136 Mr Turner contended that neither the 2003 nor the 2009 South Australian guidelines require noise assessment to be separated into day and night periods. He was of the view that the baseline of 35dB(A) stated in those guidelines is more stringent than the WHO recommendations and therefore the need to go beyond the SA guidelines is not justified.

137 We do not consider that we should require the separation of the noise levels. We have so concluded for two reasons. First, we accept that the application of the 2003 SA guidelines has been and remains the proper assessment framework to apply in the assessment of this proposal as was set in the Director-General’s requirements. Second, separately, we also accept Mr Turner’s evidence that those guidelines are more stringent than the WHO recommendations and there is thus no need to go beyond the SA guidelines.

138 There was a difference of opinion as to how wind speeds should be referenced. Dr Tonin was of the opinion that they should be referenced at hub height according to the 2009 SA guidelines. Mr Turner contended that the referencing at 10 m above ground is in accordance with the 2003 SA guidelines and is also acceptable under the 2009 SA guidelines if acceptable wind shear models are used to calculate wind speed at hub height. However, both experts agreed that:

Referencing at hub height represents best industry practice because it makes no assumption about the value of the surface roughness coefficient for the locality nor of the variation in shear coefficient at different times of day or night.

139 In light of this agreement and no suggestion by Mr Turner, as we understood his evidence, that acceptable wind shear models were not to be used, we consider it appropriate for the conditions to provide that any additional noise modelling or recalculations required when the final turbine selection is made are to be referenced at hub height.

140 With respect to data analysis, both acoustic experts agreed that the Minister’s condition 2.15 be modified to require the proponent to undertake a revised noise assessment for the final turbine model conditions (including an assessment of the suitability of background noise level data to cover the range of wind speeds and directions generally expected at the wind farm site). This agreed position arose in response to the omission by MDA, in their preparation of the noise impact assessment in the EA, to follow the SA 2003 guidelines requiring wind speeds outside of the normal operating range of the turbines to be removed from the background data set.

141 In terms of noise mitigation, the experts agreed that the conditions of approval could be improved by the inclusion of a requirement that establishes a ‘Noise Operating Strategy’ that addresses any noise exceedences for the wind farm based on final turbine selection and layout.

142 They also recommended that condition 2.19 be improved by the inclusion of a requirement to confirm operation of the wind farm in accordance with any ‘Noise Operating Strategy’ developed in accordance with the revised condition 2.15 and a requirement to repeat the verification of the operational noise performance for any change in the ‘Noise Operating Strategy’. In their joint statement they recommend the following wording:

The proponent shall prepare a Noise Operating Strategy identifying specific methods of noise reduction based on the final turbine selection and layout for the various turbines which are predicted to result in noise levels exceeding the noise limits for the worst case wind directions at any receptor location. The Strategy shall include noise modelling verification demonstrating the noise reductions claimed can be achieved.

143 As this reflects the uncontradicted expert opinion, we adopt the agreed position and necessary relevant alterations are to be made to the conditions to reflect this.

144 A further issue between the acoustic experts was whether the accuracy of the ISO9613-2:1996 model as implemented in the MDA report [claiming an accuracy of +/- 3dB(A)] can be validly raised within the issue of noise mitigation. Dr Tonin contended that the MDA report and the method used to factor in acoustic screening would have under-predicted noise levels and therefore they could not be relied upon. He recommended the levels be re-calculated. Mr Turner believes that this is not a valid issue with respect to noise mitigation but considered the main issue of noise mitigation has been dealt with by the proposed changes to condition 2.15.

145 We accept Mr Turner’s position as, as we understand it, the proposed requirement for a Noise Operating Strategy will ensure that acoustic screening is adequate at the locations requiring it or operational restrictions would be adopted to deal with any inadequacies not rectified.

146 The experts were asked to consider the noise impacts of an alternative turbine, the 3.3MW Re Power MM104. Their modelling showed noise levels approximately 1-2dB(A) lower than predicted for the turbine models used in the EA (MM82 and MM92). They also stated that another turbine, the V90 3MW model exceeded noise levels by up to 5dB(A) at between 20 and 30 residences. As a consequence, they agreed that the conditions of approval requiring re-assessment following the final turbine selection were appropriate.

147 The final acoustic issue concerned whether or not acoustic reports prepared by the proponent ought be critically peer reviewed by an independent expert at the cost of the proponent. Dr Tonin agreed with such a requirement as he considered the matter to be of sufficient complexity to warrant an independent specialist. Mr Turner disagreed as he considered that there would be staff within the appropriate regulatory authority who could assess these matters and, if peer review was required, the responsible authority could seek that peer review. We accept the position adopted by Mr Turner, as the ability to assess such reports is a matter appropriate for consideration by the regulator. That body can determine, as and when necessary, if it wishes to commission such independent reviews.

148 DELETED

149 During the hearing, Mr Griffiths asked Dr Tonin whether he was aware of European research that supported the proposition that noise from wind farms was likely to have a greater adverse impact on a person who could see the source of the noise (being the turbines of the wind farm). He asked whether a second conclusion of this research was that there was likely to be a higher impact by noise from a wind farm upon persons who were opposed to the wind farm. Dr Tonin agreed that those authors drew these conclusions. Dr Tonin indicated that the papers upon which he based his understanding of these conclusions were papers that had appeared in peer reviewed scientific journals that he considered were reputable.

150 The LEC Act provides, in s 38(2), that we are not bound by the strict rules of evidence and may inform ourselves as we consider appropriate. As a consequence, it is open to us to accept that the evidence of Dr Tonin, on this point, establishes that these greater or heightened impacts may exist.

151 For the purposes of assessing acceptability of the proposed wind farm, the question then arises as to what weight, if any, the possibility of such heightened sensitivity to noise should be given in our assessment of the impact of the proposed wind farm on any individual property that is potentially subject, to some degree, to noise from this proposed wind farm.

152 In addition to the position that a development consent runs with the land and is not personal to the applicant who obtains it, equally a proper merit assessment of any proposal is not undertaken on a basis adopting subjective criteria reflecting individual likes or dislikes.

153 Although there has been a degree of debate and disagreement between the noise experts on some specific matters in these proceedings, they have related to the levels of (or appropriate method of calculating) empirically derived values from appropriate measurement based science. Resolution of those differences is discussed earlier. Standards, based on science, such as the European JE standard; the 2003 South Australian wind farm guidelines; and the 2009 South Australian wind farm guidelines can all be considered and whatever guideline or guidelines are adopted by consent authorities or regulators, are capable of empirical compliance modelling based on data obtained from scientifically verifiable testing. Similarly, compliance can be empirically tested and, if relevant conditions of consent are not satisfied, compliance can be enforced.

154 Inserting subjectivity consent requirements based on an individual's or a group of individuals’ reaction to the noise from the wind farm, based on their opposition to the development, is entirely alien to the planning system. Whilst, in some areas such as streetscape impact, individual aesthetic considerations may arise and judgements made upon them, we are unaware of any authority to support the proposition that, where there is a rationally scientifically measurable empirical standard against which any impact can be measured and determined to be acceptable at a particular empirically determined level, that there should be some allowance made for a subjective response to the particular impact. Mr Griffiths was unable to cite any authority in support of such a proposition.

155 As a consequence, we have determined that, in assessing the acceptability of noise at the various receiver locations, we need consider the appropriateness of the (contested) noise-related conditions proposed by the Minister solely on the basis of technical evidence given to us by the expert witnesses and relevant data – whether measured by fieldwork or derived from accepted software modelling programs applied to the analysis of such data.

Visual impact

156 Mr Wyatt prepared the ‘Landscape and Visual Assessment’ for the EA. In response to contentions raised by the Guardians and the Kings, Mr Wyatt prepared a ‘Statement of Evidence – Supplementary Landscape and Visual Assessment Report’. In essence, the issues raised about his analyses related to the adequacy of the methodology and the number and adequacy of his photomontages, including night-time photomontages.

157 Apart from providing written reports, Mr Wyatt was present at the site view where we had the opportunity to observe the photomontages at various of the locations from which the original photographs were taken. This also provided the opportunity to discuss mitigation measures such as landscaping. Mr Wyatt gave oral evidence in Court. Photomontages in addition to those produced for the EA were presented in the field and in Court.

158 The main objections from the Guardians and the Kings related to the perceived subjectivity of the assessment and the ratings for the scale of effects. It is fair to say that there was strong disagreement from the Guardians where Mr Wyatt’s assessment of “low adverse effect” was given. His scale of effects is based on a number of factors including distance from the wind farm, the number of people who would see a particular view and the landscape sensitivity. The latter refers to the degree of ‘man-made’ modification to the landscape.

159 In Mr Wyatt’s Statement of Evidence he said:

The overall visual impact of the wind farm from an indicative publicly accessible viewpoint has been assessed using the following scale:

• Negligible – minute level of effect that is barely discernable over ordinary day to day effects.
• Minor or low adverse effect – adverse effects that are noticeable but that will not cause any significant adverse effects.
• Medium adverse effect – significant effects that may be able to be mitigated/remedied.
• High or unacceptable adverse effect – extensive adverse effects that cannot be avoided, remedied or mitigated.
  
  

160 In section 3.3 of his statement, he said:

For residential properties, which will always have a high degree of sensitivity, there will be a high level of impact where the closest visible wind turbine is within 1.5 km, unless existing vegetation screens the view. A medium level of visual impact will occur where wind turbines are visible between 1.5 km and 3 km and a low level of visual impact if the closest visible wind turbines are more than 3 km from a dwelling.

161 With respect to night lighting photomontages, Mr Wyatt stated that these were of little value as beyond 1 km to 1.5 km the aviation safety lights merely become red dots in the night sky and the lights stay a similar size when viewed from further away.

162 We accept Mr Wyatt's proposition that, from any point reasonably removed from the turbines, in our assessment at some point from a ~ 1.5 km distance or so away – this being the greater distance postulated by Mr Wyatt, there will be no perceptible difference in what is observed of such aviation hazard warning lights. They will only appear as a row or rows of small flashing red dots.

163 However, we do consider from our observation when approaching the range wind farm from the north along the highway that, from 1.5 km or so away from the wind farm and closer, the cumulative effect of these lights could possibly be regarded as intrusive (whether one considers wind farms to be items of environmentally desirable grace and elegance or whether one considers they are a blight on the landscape).

164 As a consequence of this observation, we consider that, when we turn to assessments of impact on individual properties, we should also consider, on a contingent basis, what would be the visual impact if aviation hazard lighting were to be incorporated at some time in the future. We have done this as our conclusions on this issue relate to turbines that are proposed to be installed and any future requirement for such lighting will be one not sought by the proponent nor imposed by a consent authority under NSW law – thus this assessment is the only possible forum within which these possible impacts can be considered. We propose to do so on the assumption that, at most, lighting of this type would be required for the turbines of this proposed wind farm at a ratio of lights and intensity of illumination no greater than that inspected at the Cullerin Range wind farm.

165 After considering the contentions of the Guardians and the Kings and preparing and analysing additional photomontages, it was Mr Wyatt’s position that there were no reasons why he would change his conclusion that the landscape is suitable for a wind farm. In his oral evidence, there was a strong reliance on the use of landscaping/tree planting to lessen the visual impact on potentially adversely effected dwellings.

166 The Minister’s approval includes conditions of consent in relation to landscaping requirements for screening purposes. In summary, the proponent is to offer and pay for landscaping treatments to non-associated properties with existing dwellings or where a dwelling has been approved and those dwelling sites are within 3 km of any visible turbine. The utility of this is dealt with, as necessary, in the context of each individual property requiring assessment. The question of amendment to include existing subdivision allotments with existing dwelling sites specified in the subdivision approval (but no current dwelling approval) is discussed in our consideration of the landscaping condition.

167 The council contended that the most appropriate way of dealing with the visual (and noise) impact is to impose a 2km setback from any non-associated dwelling or approved house site on a lot created for residential purposes from which a turbine is visible. This arbitrary distance is contained in the DCP and has been rejected for the reasons earlier set out.

Shadow flicker

168 Shadow flicker is a phenomenon that is caused when the sun is low in the sky in either the morning or the afternoon. The flicker is caused if the sun is observed directly through the rotating blades of a turbine. It is a phenomenon that, self-evidently, does not occur when clouds obscure the sun. Thus allowances must be made, when assessing shadow flicker impact, for the number of cloudy days there may be in any year at any given location likely to be subject to shadow flicker.

169 There are no specific guidelines in NSW as to how to assess shadow flicker generated by wind turbines. However, the relevant Victorian Planning Guidelines propose that no dwelling on a non-associated property should be subject to more than 30 hours of shadow flicker in any 12 month period.

170 A number of residences are subject to shadow flicker impacts to varying or lesser degrees if the Gullen Range wind farm is constructed as approved by the Minister. Possible shadow flicker impacts also arise with respect to locations where no dwelling is currently constructed but where a dwelling entitlement for the allotment exists. Shadow flicker impact is one matter to be considered in assessing the suite of potential impacts on the various locations needing to be considered in these proceedings. The reports attached to the proponent’s EA included a “Gullen Range Wind Farm Landscape and Visual Assessment” prepared by ERM Australia (the ERM report). This report, by its Annex A, incorporated a shadow flicker assessment and Figures 11.3 and 11.1 are visual representations on air photos of the shadow flicker that would be generated from the turbines of the proposed wind farm.

171 The proponent engaged an independent expert, Dr Slack, to assess the extent and duration of shadow flicker arising from the proposed wind farm. According to his Statement of Evidence, Dr Slack “independently confirmed the duration of shadow flicker predicted” in the EA. Dr Slack also modelled the likely shadow flicker effects based on the worst-case positions of the turbines facing into or away from the sun.

172 The proponent provided Dr Slack with wind data. Dr Slack assessed cloud cover using cloud cover data provided by the Bureau of Meteorology from the Goulburn TAFE Meteorological station. Despite the distance from the meteorological station to the assessed sites, Dr Slack considered that cloud cover estimates would be similar. However, he did say, in his Statement of Evidence:

.........., it is acknowledged that the application of a cloud cover of adjustment is subject to some uncertainty. However, it is the best available data, and the application of an average effect is considered to be a reasonable approximation.

173 The results were assessed against the Victorian Planning Guidelines that no dwelling on a non-associated property should be subject to more than 30 hours of shadow flicker in any 12-month period. Dr Slack assumed no shadow flicker beyond a distance of 1 km. He stated that South Australian guidelines set the cut-off distance at 500 m and in the UK the limit is 10 times the rotor diameter. In this case, that would equate to 927 m and thus he considered 1 km to be a reasonable cut-off distance.

174 In answer to questions raised by objectors about the impacts of shadow flicker on human health, Dr Slack stated that:

The effects of light flicker on humans in relation to shadow flicker from wind turbines have been reviewed by various researchers in Europe. The researchers concluded that the only potential health effect was the possibility for triggering epilepsy. Between 1 and 2% of the population suffer from epilepsy, and of these about 5% have photosensitive epilepsy which may be triggered by light flicker. However, there is a consensus that the flicker frequencies that potentially trigger seizures lie above 3Hz. The frequency range for modern large wind turbines is generally less that 1.0Hz which is well below the problem level.

It is therefore concluded that the risk of potential health effects of shadow flicker on human beings from modern wind farms is very low, and the major impact is annoyance. Both the Victorian Guidelines and the Best Practice Guide propose a limit of 30 hours per year as a limit to prevent undue annoyance.

175 In terms of mitigation of the effect, Dr Slack suggested that screening is effective as is the turning off of turbines at the times of the day that flicker is most likely to occur.

176 However, Dr Slack adjusted, downward, his calculated hours of shadow flicker per year at the potentially impacted locations by having regard to wind direction and, thus, turbine orientation. In his statement, Dr Slack identified the range of properties where he considered shadow flicker could arise and gave annual estimates (in hours of shadow flicker expected to be experienced) for each such location.

177 He describes his calculations as being “best practice” and that several other lesser assumptions he has made as being “reasonable approximations” but ones that “can not be confirmed without site specific data and onerous assessment”. He also said:

It should be noted that the reduction factors considered here do not include other factors which may also reduce observed shadow flicker. These include the periods when wind speed is low and the turbines consequently are not rotating, and also other specific local factors such as vegetation or other obstacles between the observer and the turbines.

178 Relevantly, in our view, he also said:

.........., the theoretical shadow flicker hours presented are subject to a low degree of uncertainty. Although the corrections applied to deduce the “actual shadow” figures are acknowledged to be subject to more uncertainty, they are reasonable approximations. It should also be noted that there are additional elements of conservatism which have not been considered, due to hours when the turbines are not turning and also due to the influence of local screening.

179 As noted earlier, the ERM report included air photos marked up with predictive modelling shadow flicker footprints. However, unlike contour lines, the shadow flicker footprints are imprecise (at best) at the resolution and scale available to us. In order to make some assessment of the impacts at locations where there is no present dwelling but there is a dwelling entitlement, we have, as best we are able from this material, cross-referenced the marked up air photo shadow flicker footprints with the other topographic map or air photo information that we have that shows where allotments with dwelling entitlements are located.

180 As a result, we are satisfied that we can express one of two conclusions with respect to each individual dwelling site for an individual assessment is required. The conclusions are:

• there is no likelihood of shadow flicker; or
• there is some likelihood of shadow flicker.
  
  

181 Where we have reached the second of these conclusions, we have noted what the shadow flicker estimation is that we have drawn and the turbines from which it emanates. The raw shadow flicker numbers we derived from the ERM air photos, are obviously, subject to the cloud and turbine operation factors discussed above. As the discounts in the second table produced by Dr Slack vary but are, broadly, ~ 50%, taking a conservative and precautionary approach, we have applied a discount of 50% to each number we derived from the raw map and photo data we have analysed. The numbers we give in the individual assessments reflect this discounting process. We accept that this is a crude approach but it is the best we are able to do on the various data available to us.

182 The positions applying to dwelling sites particularly relates to our conclusions concerning possible shadow flicker impacts on dwelling sites in the King and Christie subdivisions; two allotments, each, for the Dennis Hewitt and Montgomery landholdings; a dwelling sites on the Hogan landholding; and the allotment owned by Daniel Hewitt.

183 Figures 11.3 and 11.1 annexed to the ERM report, showing shadow flicker impacts as a graduated colour scale, for each of the northern and southern sections of the wind farm are reproduced below.

[<img src="/lecjudgments/2010nswlec.nsf/files/First_after_para_183.JPG/$file/First_after_para_183.JPG" alt="1st after 183">]

[<img src="/lecjudgments/2010nswlec.nsf/files/Second_after_para_183.JPG/$file/Second_after_para_183.JPG" alt="2nd after 183">]

184 We note that Dr Slack’s cloud cover assessment is based on meteorological data from some distance away from the proposed windfarm being data from the meteorological recording station at Goulburn. Although we are prepared to accept that the cloud cover in the vicinity of the windfarm might be expected to be generally similar to that observed in Goulburn, we are of the view that it is appropriate, given the distance between the recording of the observations and the wind farm, including the length of the wind farm itself, that we should take a cautious and precautionary attitude to the shadow flicker calculations arising from this cloud cover data (although applicable to the whole wind farm, this observation has added weight the further north along the line of the wind farm). The necessity for this cautionary approach is reinforced, in our view, because of the comments noted above concerning the “the corrections applied to deduce the ‘actual shadow’ figures” upon which we are asked to make our assessment of this impact on individual properties.

185 In addition, whilst visual impact is a matter of aesthetics and may (and does – as these and other wind farm proceedings demonstrate starkly) vary in the eye of the beholder, shadow flicker, whilst subject to caveats as to uncertainties, is empirically measurable. Further, the consequences, as discussed above, include a chance (albeit remote) of more than an annoyance from shadow flicker. We also consider that, unlike visual impact, we should have some (but minor) regard to shadow flicker as an effect that may be experienced away from a dwelling.

186 Shadow flicker impact is considered for the individual properties later in this judgement.

Impacts – the public domain

187 When dealing with the acceptability of the wind farm specific impacts, we turn, first, to the question of whether there is sufficient visual impact, upon viewers from the public domain, to warrant refusal of the proposal. We do not consider that there is and we have reached this conclusion for the following reasons.

188 First, as discussed by Preston CJ in Taralga, it is not appropriate to have regard to the strong feelings engendered by those who are opposed to wind farms but rather assessment of visual impact is to be undertaken on a dispassionate basis. Whilst, as Preston CJ observed, there will be an intrusion of industrial structures into an otherwise rural landscape, this is already an increasingly common phenomenon in the landscape of the higher wind regions of the Southern Tablelands and other high wind areas of the State. Indeed, the NSW government has produced a wind atlas for the State – which atlas is used, at least in part, for the preliminary assessment of possible locations for wind farms.

189 In this instance, we have the uncontradicted expert evidence of Mr Wyatt in which he makes the assessment there is no broadly unacceptable visual impact – whether from the public domain or from individual properties.

190 Whilst we accept that visual impact assessment involves a significant degree of subjectivity and is not an empirically precise science – thus leaving open legitimate reasons for disagreement (both on broad principles and on specific impacts on identified visual catchments), we have accepted Mr Wyatt’s conclusion on the broad proposition of impacts from the public domain (our responses to his individual property assessments are not universally accepted by us – for the reasons outlined in each relevant instance). We have done so for the reasons set out below.

191 Unlike Taralga, where Preston CJ concluded that the visual impact on the township was acceptable despite the fact that a significant portion of the totality of that wind farm would be visible from the town, the circumstance that will arise in this application is the viewing that will occur from the public domain will, with the exception of the hamlet of Grabben Gullen, occur whilst driving along rural roads in a local road network in the vicinity of the four sectors of the wind farm. The road network is a rural one with lesser through roads as well minor localised access roads that merely lead to a single property or small numbers of properties.

192 Although we spent a considerable period of time on the site inspection (as earlier discussed), we were not able to visit all of the properties raised by the Guardians or all of the public domain viewing points from which Mr Wyatt made an assessment. However, with respect to the public domain viewing points analysed by him (as well as possible views from other locations in the public domain), we are satisfied that we obtained, during our extensive travels on the local road network, a comprehensive understanding of how the various elements of the proposed wind farm would be viewed from the public domain.

193 Although there will be view points from which a large number of turbines will be visible, there is no single location, in our assessment, let alone a more heavily settled location or where any overwhelming observation of turbines would take place for an extended period of time. Indeed, any observation of individual elements as will take place from any location in the public domain (with the exception of the hamlet of Grabben Gullen – dealt with below) is likely only to be transitory.

194 In reaching this assessment, we have taken into account a number of observations made during the field inspection where we stopped to look at the outlook from the public domain from several of the locations identified by Mr Wyatt as public viewing points (being locations for which he prepared photomontages). To assist understanding of our reasoning on the broad topic of public domain impact, we record, in the following paragraphs, our response to these outlooks.

Pomeroy Road viewpoint (VP3)

195 Between the Clark and Brooks properties in the Mummel area at the south-east of the southern section, we stopped on Pomeroy Road and viewed photomontage 03, a view to the west towards One Tree Hill and the Gurrundah sector with the nearest turbines, GUR_03 and GUR_07, being ~ 1.9 km away.

196 In the EA, Mr Wyatt describes the visual impact low (on p. 50 of the EA) and as moderate without screening and low with screening (on p. 82 of the EA).

197 In our assessment, the turbines will be visually prominent from the road at this location as the range it is relatively close. Screening would be unlikely to make any significant difference. However, the prominence of the turbines is unavoidable as they are located towards the top of the most visually dominant landscape feature, the Grabben Gullen Range.

Walkoms Lane viewpoint (VP4)

198 On the way to the Johnson property (discussed later concerning specific property impacts), we stopped at Walkoms Lane and viewed photomontage 04 representing the view to the south-west across gently sloping land to the nearest proposed turbine, POM_01, some 2.5 km away in the Pomeroy group. Another photomontage from the same spot – to the north-west across a relatively flat area toward the southern end of the northern section of the proposed wind farm – showed turbines in the Bannister sector at about 2.5 km away screened by hills and remnant trees. In our assessment, the visual impact was relatively low in both directions. We note that this accords with Mr Wyatt’s assessment from this viewpoint.

Grabben Gullen viewpoint (VP11)

199 The photomontage was taken just to the north of the hotel on the eastern side of the road in the hamlet of Grabben Gullen. The view to the east towards the Bannister group of turbines shows about 20 turbines with the nearest of them, BAN_09, being at a distance of ~ 3 km. The turbines are obvious but at a distance where noise and shadow flicker are not issues.

200 The hamlet is quite small and the majority of the residential allotments are to the west of the viewpoint – thus further away from the turbines. In addition, it appeared to us that the majority of the dwellings in the hamlet appeared to be oriented away from direct viewing lines to the turbines. The question of orientation, however, is not as important as is the distance to the turbines and the resultant view as shown in the photomontages.

201 The photomontage from the vicinity of Grabben Gullen does not disclose any public domain dominance such as to warrant modification or refusal of the proposal. This photomontage is reproduced below to assist understanding of the conclusion following – the photomontage shows the existing view at the upper frame and the view with turbines inserted in the lower frame (rotated to give best possible image definition).

[<img src="/lecjudgments/2010nswlec.nsf/files/After_201.JPG/$file/After_201.JPG" alt="After 201">]

202 Given the general orientation of the hamlet and the distance to the turbines, we consider the visual impact on the village of Grabben Gullen to be acceptable.

Conclusion – visual impact on the public domain

203 There is no location in the public domain from which there will be a regular static view taken of the proposed windfarm (with the exception of those who might take such views from the public domain whilst in the village of Grabben Gullen). As a consequence, setting aside public domain viewing from that village (as we have earlier indicated this to be acceptable), we are satisfied that the overwhelming viewing of the windfarm, from the public domain, will be transitory and taken by those driving on the local road network.

204 The local road network is, essentially, an interconnecting network of feeder and collector roads none of which appeared to be a major thoroughfare in a road hierarchy sense. Viewing of the various elements of the wind farm is only of transitory nature (even if driving from one end of the wind farm to the other). Were we to accept that the view of the wind farm was highly significantly intrusive at any location for such a transitory viewer (a proposition that we do not accept), nonetheless this would still render the impact of such a view as low.

205 As a consequence, there is no basis of visual impact upon those viewing the proposed wind farm from the public domain that would warrant requiring modification to the proposal let alone refusing it outright.

206 We have also considered whether or not the conclusion that we have reached concerning public domain viewing would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines on the lighting assumptions earlier postulated. We have concluded that the transitory nature of such nigh-time viewing means there would be no visual impact of any significance from such lights.

207 Finally, we note, in passing, that there are no noise or shadow flicker impacts on the public domain that would warrant us refusing or modifying the proposal.

Impacts on individual properties – introduction

208 We turn, now, to undertake an assessment of the impact of the proposed wind farm on individual landholdings or, where relevant, groups of landholdings. This assessment, as earlier indicated in outlining the potential impact of the wind farm, is done on a cumulative basis considering visual, noise and shadow flicker impacts as relevant.

209 As part of the reports that were in evidence (as attachments to the EA), the MDA report included air photos marked up with predictive modelling noise contours for two of the possible turbines that might be installed in the proposed wind farm. Compliance tables for a number of potentially sensitive receiver locations for each of these two turbines were also included in the report. A further table of such data was tendered for the Guardians with respect to a third possible turbine.

210 We have referenced the marked air photo for the non-compliant of the two turbines for which marked air photos were provided in the MDA report. The third possible turbine showed greater non-compliance but we do not have an air photo from which to extrapolate data about its impacts. The air photo we have used is reproduced below:

[<img src="/lecjudgments/2010nswlec.nsf/files/After_210.JPG/$file/After_210.JPG" alt="After 210">]

211 The particular sensitive receiver locations that were modelled on the compliance tables related to existing dwellings. In order to make some assessment of the impacts at locations where there is no present dwelling but there is a dwelling entitlement, we have, as best we are able, cross-referenced the marked up air photo noise contour information with the other topographic map or air photo information showing where allotments with dwelling entitlements are located. Because the compliance table of the first of the three possible turbines analysed shows complete compliance at the receivers modelled and the third possible turbine’s compliance table shows greater exceedences than those we derive from the above air photo, we consider we have taken as fair a middle position as is available from the limited data we have on this issue.

212 As a result, we are satisfied that we can express one of three conclusions with respect to each individual dwelling or dwelling site where an assessment is required. The conclusions are:

• there is no likelihood of noise non-compliance;
• there is a possibility of noise non-compliance (depending on the turbine selected); or
• there will be noise non-compliance.
  
  

213 The positions applying to dwelling sites particularly relates to our conclusions concerning possible noise impacts on dwelling sites in the Christie subdivision; two allotments, each, for the Dennis Hewitt and Montgomery landholdings; a dwelling site on the Hogan landholding; and the allotment owned by Daniel Hewitt.

214 Whilst we appreciate that there is to be a Noise Operating Strategy for the wind farm and the conditions of consent require that the wind farm be operated so that there are no exceedences of the permitted noise levels, the possibility of noise non-compliance is a matter, in our view, to be considered as part of the cumulative assessment of all potential impacts on existing dwellings or allotments with existing dwelling entitlements.

215 Where we have dealt with a group of landholdings, we have identified those by the general location and, within the assessment, identified the individual landholdings subject to consideration in that assessment. These are landholdings or groups of landholdings upon which there is an existing dwelling or an entitlement to such a dwelling. The question of landholdings that may have the potential to be subdivided under the various present Local Environmental Plans are dealt with, after this section of the decision, under a separate head of consideration.

216 Where we have reached the conclusion that all or part of a landholding should be subject to an acquisition regime, the structure of the condition to provide for that acquisition regime is that which is described, separately, after consideration of these landholdings. A schedule of properties where each is to be the subject of a condition structured as later described is appended to this decision.

217 Where we have concluded that a landholding is sufficiently adversely impacted to warrant us requiring acquisition by the proponent or, if the proponent so wished, deletion of the impacting turbines to ensure acceptability, the approach that we have adopted is that, if there is only one existing dwelling or dwelling entitlement on the particular landholding, the totality of the landholding should be acquired even if there is some theoretical opportunity for subdivision or there are multiple allotments. This is consistent, in our view, with the position that we have taken about subdivision potential (that is not having regard to any subdivision potential – for the reasons we have set out).

218 We consider it would be an inappropriate result to require that the acquisition regime apply only to the allotment upon which there was a dwelling or to which a dwelling entitlement attached. To impose a requirement that the allotment with the dwelling or sole dwelling entitlement should be acquired but that the landholder should be left with the orphaned remainder of the landholding would be, in our view, contrary to the public interest.

219 If an unacceptable impact applies to a landholding where there is more than one dwelling or dwelling entitlement, we have approached that landholding on the basis of requiring that the discrete element of the landholding that is impacted be subject to the acquisition regime as proceeding on this basis would not leave a landholding without a dwelling or dwelling entitlement.

220 As we are dealing with these impacts in two proceedings, those brought by the Guardians and those brought by Mr and Mrs King, separate orders will be necessary to give effect to this decision. However, the merit assessment of the relevant elements of the Kings’ landholdings sits, conveniently, within the framework that follows.

221 The assessment of the individual landholdings generally follows the sequence of the site inspections as organised by the Guardians. The descriptions are based on both the written statements of evidence and the evidence given on-site. The property numbers, as identified in the air photos, are shown in brackets. The Kings’ property is the subject of separate proceedings and is discussed, separately, after consideration of the Guardians’ properties.

222 In preparing their appeal, the Guardians used a template ‘Statement concerning expected impacts of the Gullen Range Wind Farm, Project No. 07_0118’. Each member of the group completed the template form and, where the property owners considered it necessary, provided additional material to support their contentions otherwise set out on the form. Some members provided additional material and specific comments on each item. Other members submitted the form with little additional material.

223 Each statement was numbered and the house site given. The following information was contained in the statement:

1. Name

2. Street address of affected property

3. LOT Nos, DP Nos of affected property

4. Identification of house /house site

5. How many turbines visible (in whole or in part) from place habitually used on property

6. Distances to nearest cluster of turbines (on attached map)

7. Dwelling entitlement

8. Subdivision:

(i) Approved

(ii) Proposed

(iii) Potential

9. Concerns:

(i) Noise (day and night)

(ii) Visual impact (day and night)

(iii) Shadow flicker

(iv) Fall in property value

(v) Unsaleability of property

(vi) Loss of subdivision potential

(vii) Deterioration of quality of life

11. Relief sought:

(i) Refusal of the project:

We apply to have the project refused

(ii) Removal of turbines:

If the project is not refused, we apply to have turbines___ removed from the project.

(iii) Monitoring regime and complaints resolution process:

If the project is not refused, we apply for a rigorous monitoring regime, and a complaints process with integrity, both to be independent of the developer.

(iv) Compensation for fall in property value/loss of subdivision potential:

If the project is not refused, we apply for compensation equal to the loss of value to our property.

(v) Acquisition rights: If the project is not refused, we apply

for acquisition rights.

224 In addition to this information, each submission contained an aerial map showing the location of the dwelling and the nearest group of turbines. At the bottom of this map, the distances from the turbines are shown. Each submission contains a Title Search for each property and evidence to support dwelling entitlements or subdivision approval.

225 In summary, all members were concerned about visual impact; impacts on property values and unsaleability of their properties (including loss of value of retirement asset or income); and deterioration in their quality of life. Most were concerned about noise and about half with shadow flicker. All supported the outright refusal of the wind farm but also, in the event that this did not result from the proceedings, sought the alternative relief as outlined in item 11(ii) to (v) of the template with specific requests for the removal of the turbines that the individual members felt most affected their property.

226 The descriptions and observations in the sections that follow are based on oral evidence during the site view and consideration of the relevant written submission.

Southern section – Mummel area

The Clarks’ property

227 The Clarks’ property (G29) is located in the Mummel district of Goulburn Mulwaree Shire outside the 2 km zone marked on the air photo. The house is situated on a rise on the eastern side of Pomeroy Road. The nearest turbines are those of the Gurrundah group (to the west) but the Pomeroy group (to the north-west) would also be visible. GUR_07, GUR_08 and GUR_16 are the closest at about 2.5 km. The Clarks estimate they will be able to see 34 of the 41 turbines in these sectors.

228 Their main concerns are: noise and associated health impacts, loss of visual amenity – an industrial rather than rural landscape, loss of property value, night lighting, shadow flicker, and increased heavy vehicle traffic and resulting safety concerns for school children.

229 Mrs Clark stated that they bought their 18 ha property some 6 years ago and have lived there for the past 4 years. The view of the Gullen Range was the main reason for their purchase. The living area and back deck of the house overlook the range having uninterrupted views across the valley. A line of turbines will be located on top of the range opposite. In reality, although the Clarks will be entitled to take advantage of the landscaping provision if they wished, because of the topography and orientation of the dwelling, the landscaping would have little or no ameliorative effect on the view of the turbines from this property.

230 Given the elevated position of the house and the extensive views of the Gullen Range, there will be a visual impact from the wind farm. However, the distance is also such that there will not be any impact of shadow flicker or noise. There is no likelihood of noise non-compliance for this dwelling.

231 Even if we were to have adopted the 2 km distance proposed by the DCP (a DCP that would not apply to this property, in any event, because of its location in a different local government area), there would be no basis for intervention on the unsubstantiated empirical standard contained in the DCP.

232 The Clarks will undoubtedly have an outlook, in future – if the proposal goes ahead – of a landscape with a number of industrial structures in it with these strung along a viewing line across their principal outlook. However, there is considerable distance to even the closest of the turbines and the property is certainly not dominated, topographically, by any group of turbines.

233 We conclude, with respect to the Clarks’ property, that the distances of turbines from the dwelling are such that the visual impact, absent noise or shadow flicker impacts, would not provide a basis for the refusal of the project or the removal of any turbines.

234 We have also considered whether or not the conclusion that we reached with respect to this landholding would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that, at the distance that the turbines that impact on this property are proposed to be located, there would be no additional visual impact of any significance.

235 The Clarks’ concerns relating to the value of this property are, for the reasons discussed elsewhere, not relevant matters for our consideration – even if they were to be well founded (a matter about which we make no assessment).

The Greeshaws’ property

236 The Greeshaws’ property (G30) is on the western side of Pomeroy Road opposite the Clarks’ property and just on a 2 km radius from the nearest turbine. It is on significantly less elevated land than the Clarks’ property. The nearest turbines are GUR_07 and GUR_08. We did not visit this property but Mrs Greeshaw gave evidence at the site view and her concerns were essentially the same as Mrs Clark’s concerns.

237 Mrs Greeshaw stated that she was looking to retire and her lifestyle would be ruined if the wind farm went ahead. She also voiced her opinion on whether or not the turbines would be able to meet the essential base power load for the area and that the development would benefit others rather than locals.

238 There is no shadow flicker impact on this property. There is no likelihood of noise non-compliance for this dwelling.

239 Although a small number of turbines will be visible in an elevated perspective from this property, as a consequence of its lower elevation close to the foot of the valley, the outlook will not encompass as many of the turbines as would be the case of the Clarks’ property. As we did not visit the property, we are unable to draw any conclusion as to whether or not the landscaping that will be available to this property's owners will have any significant benefit in shielding their view of any of the turbines. Whether or not the landscaping will provide any benefit is, however, not relevant in our opinion as we are satisfied that the lesser number of turbines that will be visible from this property (although they will be elevated) is not a factor of significance for the same reasons as outlined for the Clarks’ property.

240 In our opinion, there are no particular circumstances of this property that would not provide a basis for the refusal of the project or the removal of any turbines.

241 We have also considered whether or not the conclusion that we reached with respect to this landholding would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that, at the distance that the turbines that impact on this property are proposed to be located as well as the limited number of turbines visible from it, there would be no additional visual impact of any significance.

The Brooks’ properties

242 The Brooks own two lots on the eastern side of Pomeroy Road. The house in which they live is identified as G43 and is situated on the relatively flat portion of the 20 ha allotment near the road. They have lived there for 20 years and purchased the property for the view and the serenity. Even though large trees screen the house, Mrs Brooks stated that she and her husband spend a considerable portion of their time outside on various parts of their properties. The residence is about 300 m inside a 2 km radius from the nearest turbine and the nearest turbines are GUR_01, GUR_02, GUR_03 and GUR_07.

243 The Brooks also own the adjoining allotment to the east. It is about 18 ha in area and has a timber ‘chalet’ (erected by the previous owners high on the slope of the valley) with its primary orientation toward the ridgeline of the Gullen Range to the north-west and west. This timber chalet is identified as G44 on the air photo. There is an existing development consent for a house to be constructed up-slope of the chalet.

244 The Brooks estimate they will see 31 of the turbines in the Pomeroy and Gurrundah sections. These turbines will spread in a line along approximately 4 km of the ridgeline across the valley with their bases being modestly (but not significantly) higher, in some instances, than the chalet. The Brooks contend that the size of the turbines is such that they will dominate even the highest elements of the range and that this is an unacceptable impact. Should the turbines be lit, they are of the opinion that the night aspect will also be ruined.

245 In their written submission, the Brooks articulated their concerns about noise:

We are generally concerned about noise, whether it breaches the SA Guidelines or not, since it will be both audible and unavoidable. But we are particularly concerned about the van den Berg Effect, and infrasound,...The van den Berg Effect is probable as temperature inversions are common on the Southern Tablelands. This means noise at night, with the possibility of sleepless nights...

246 The Brooks contend that the property will lose value and therefore compromise their retirement plans, as they are both in their early sixties. They are seeking the refusal of the project but if it should be approved, the seek removal of turbines GUR_01, GUR_02, GUR_03, GUR_07 and GUR_08 plus a rigorous monitoring program; compensation for fall in property values or acquisition rights.

247 The chalet will have significant visual intrusion of turbines into its outlook on a broadly similar basis to that of the Clarks’ property (although the chalet allotment and dwelling are modestly lower – but not significantly so – than the Clarks’ dwelling and property). Although the chalet and the approved dwelling site upslope of it will have advantage of the landscaping clause, landscaping would be entirely ineffectual given the topography of the allotment. There is no shadow flicker impact on this property. There is no likelihood of noise non-compliance for this dwelling.

248 However, for the same reason as discussed above for the Clarks, the visual impact on the chalet or approved dwelling does not warrant removal of any turbines or refusal of the proposed windfarm.

249 Although we did not visit the house in which the Brooks reside, as noted above, large trees screen this house from any view of the turbines. The Brooks’ dwelling is in a position analogous to that of the Greeshaws’ dwelling but with the advantage of existing vegetation screening. There is no shadow flicker impact on this property. There is no likelihood of noise non-compliance for this dwelling. For the same reason as with the Greeshaws’ dwelling, proximity of the dwelling is no basis for intervention.

250 Although Mrs Brooks stated that she and her husband are regularly outdoors on various parts of their two properties and will thus see the turbines, their viewing of the turbines will simply be the same as that which would occur from either the chalet (if they are working outdoors on that property) or from their own dwelling, if it were not screened by large trees, whilst they were working on their home allotment. In addition, whilst working outdoors, they will have the added distraction of whatever activity upon which they are engaged. For this reason, the outdoor viewing of the wind farm from either Brooks’ allotments (or, indeed, any others where the view of the wind farm from the dwelling is acceptable) provides no basis for modification or refusal of the proposal.

251 As a consequence, there is no basis from any assessment perspective associated with either of the Brooks’ properties upon which the removal of any turbine could be ordered let alone refusal of the wind farm proposal in its entirety.

252 We have also considered whether or not the conclusion that we reached with respect to either of the Brooks’ allotments would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that, at the distance that the turbines that impact on these allotments are proposed to be located, there would be no additional visual impact of any significance.

253 The Brooks’ concerns relating to the value of these properties are, for the reasons discussed elsewhere, not relevant matters for our consideration – even if they were to be well founded (a matter about which we make no assessment).

Other ‘Guardian’ properties in the Mummel area

254 Seven other landholders from the Guardian group in the Mummel area (some off Pomeroy Road) prepared written submissions but did not present oral evidence. Due to time constraints during the site inspection, the Guardians did not press visits to these properties. As a consequence, the assessment of each of these properties is based on our impressions from travelling along Pomeroy Road in the vicinity of these properties; consideration of the air photo marking the locations of these properties and of the proposed turbines; consideration of the relevant elements of the topographic map; and consideration of any submissions made by the relevant landholders.

255 To the east of the Clarks on the north-eastern side of Pomeroy Road is a 20 ha property belonging to Bridge (et al)(G22) which is outside a 2 km radius from the nearest turbine. To the east of the Greeshaws on the south-western side of Pomeroy Road is the Cox property (G28). This is just inside a 2 km radius from the nearest turbine.

256 The Bridge property is affected in a fashion that is broadly analogous to that of the Clarks although, because of the topography may be marginally less affected in viewing to the north-west. If so, the ameliorative difference will be sufficiently minor not to be significant. There is no shadow flicker impact on this property. There is no likelihood of noise non-compliance for this dwelling. However, for the same reasons that the impact on the Clark property does not warrant any adverse conclusion about the proposed wind farm, the Bridge property must be the subject to the same conclusion.

257 It is not immediately obvious whether or not landscaping would have any ameliorative effect on this property although, because of the topography, some modest shielding to the north-west may be possible (however, this possibility is not a matter we have taken into account in reaching our conclusion concerning the property).

258 With respect to the Cox property, its position is, effectively, identical to that of the Greeshaws and the same conclusion arises with respect to this property for the same reasons as apply to the Greeshaws’ property.

259 As a consequence, for the reasons set out, there are no particular circumstances for either of these properties that would lead us to ordering any modification of the project or the ordering of acquisition of either property.

260 We have also considered whether or not the conclusion that we reached with respect to these landholdings would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that, at the distance that the turbines that impact on these properties are proposed to be located, there would be no additional visual impact of any significance.

261 To the west of the Brooks property is the Aboutaka property (G33). The nearest turbine is GUR_01 at about 1.3 km. From the location of the dwelling on this property as shown on the topographic map and on the landholding map provided by Epuron, this property is divided by the road with the present dwelling located to the east of the road.

262 From the topographic map, the dwelling is located on relatively flat land but would have views to the Gullen Range. The views to the range and the turbines to be erected on it, to the south-west, would comprise virtually all (if not all) of the Gurrundah sector turbines along the eastern of the two rows running north-south in this vicinity. However, because of the location of the house on the flat land at the bottom of the valley, it is unlikely that anything other than the upper portion of the rotors, if anything at all, of the western row of turbines to the south-west would be able to be viewed from this house (although there might be some views from the higher portions of this property that are generally to the east of the house and up to some 40 m higher than the house).

263 Although the Aboutaka's dwelling is closer to a number of turbines than the lower of the two dwellings owned by the Brooks, the position concerning this property is sufficiently similar to the issues raised by Mr and Mrs Brooks concerning their principal dwelling and their activities on their property that the same approach should be applied here as was done for the Brooks.

264 Although we are not aware of what vegetation screening might be available for the dwelling on this property at the present time, this property will also have the advantage of the landscaping condition. We do not consider that there would be any likelihood of shadow flicker impacts. There is no likelihood of noise non-compliance for this dwelling. We are of the view that the same conclusion should be applied as was applied for the Brooks property and that, as a consequence, the impacts on this property do not warrant any alteration to the proposal let alone refusal of it.

265 We have also considered whether or not the conclusion that we reached with respect to this landholding would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that, at the distance that the turbines that impact on this property are proposed to be located, there would be no additional visual impact of any significance.

266 Further to the north-west is an area of smaller landholdings. Two of the Guardians’ members, Scott (G32) and Madden have properties in this area and both are close to or within a 1 km radius from GUR_01. These two properties are located in Upper Lachlan Shire Council area.

267 From the topographic map, the Scott property slopes from west to east with a creek frontage at its eastern boundary. The dwelling on the property is located toward the western end. This dwelling is just outside a 1 km radius from GUR_01. The view of this turbine from the Scott property will be partially (if not completely) shielded by the rising ground to the south-west of the dwelling. Whilst it is also probable that this property will have views of a number of other turbines, in whole or in part, in the eastern row of Gurrundah sector turbines that are virtually to the south, those views will be at increasing distances with shielding, at least to some extent, by the rising ground.

268 The dwelling on the Scott property will also have a view, at approximately 4 km distance, of a limited number of turbines in the northern group in the Pomeroy sector. The comparatively limited number of turbines likely to be viewed from this property together with the topographic orientation of the property sloping down to the east toward its creek frontage means that we do not consider that there would be any visual impact on this property that would warrant an alteration of the proposal let alone its refusal.

269 The closest turbine is GUR_01 at approximately 1 km to the south-west. There is no likelihood of noise non-compliance for this property. There would be no shadow flicker impact on this property.

270 We have also considered whether or not the conclusion that we reached with respect to this landholding would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that, at the distance that the turbines that impact on this property are proposed to be located, there would be no additional visual impact of any significance.

271 The Madden property is in a position that is more sheltered than the Scott property from viewing of turbines to the south – with the closest turbine being marginally less than 1 km away (being turbine GUR_01). A portion, at least, of this turbine will be visible from this property. It is likely that a number of the turbines in the south-eastern portion of the Pomeroy sector will also be visible as well the north-eastern group of turbines in this sector. The closest turbine in the first of these groups, POM_23 will be a little over 1.5 km away whilst the closest of those in the north-eastern group, POM_07, will be some 4 km distant.

272 Because of the topography, we are satisfied that visual impacts will be acceptable for this property. The property slopes to the north toward its creek frontage and, because of the intervening topography to its west together with the distance from the closest turbine generally to the west being POM_23 at a little over 1.5 km, this property is not impacted by shadow flicker. Because of the topography and orientation of this property, there is no likelihood of noise non-compliance for this property. We are satisfied that there is no impact on this property that would warrant alteration to the proposal let alone its refusal.

273 We have also considered whether or not the conclusion that we reached with respect to this landholding would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that, at the distance that the turbines that impact on this property are proposed to be located, there would be no additional visual impact of any significance.

274 The Jones (G23) and Dallas (G14) properties are both to the south-east of the Bridge property and are further from the closest turbines in the Gurrundah sector than that property – each dwelling being over 2.4 km from the nearest turbine (GUR_16). Because of the topography, these properties will not have significant (if any at all) views of turbines in the Pomeroy sector. They will experience no noise or shadow flicker impacts.

275 As a consequence, neither of these properties warrants any change to the proposal let alone its refusal.

276 We have also considered whether or not the conclusion that we reached with respect to these landholdings would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that, at the distance that the turbines that impact on these properties are proposed to be located, there would be no additional visual impact of any significance.

Watson

277 This property (PW21) is approximately 4.5 km in an elevated position to the east of the wind farm. Mrs Watson gave oral evidence at the on-site inspection. Mrs Watson is concerned that they will view more than 40 turbines from every location on the property, except from their existing house as it is well screened by the garden, as the Gullen Range surrounds them. They have approval for a 6-lot subdivision with 5 approved dwelling sites and are therefore concerned about the saleability of these sites. Given the distance from the proposed wind farm, there is no unacceptable visual impact. There is no possible noise or shadow flicker on any part of their landholding. This landholding provides no basis to order any modification to the proposal based on this submission.

278 We have also considered whether or not the conclusion that we reached with respect to this landholding would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that, at the distance that the turbines that are visible from this property are proposed to be located, there would be no additional visual impact of any significance.

Aggregated assessment of impacts on the south-eastern properties of the southern sector

279 We have also considered whether the overall position with respect to the properties in the Mummel area would change if there were to be a future requirement for the installation of flashing aviation hazard warning lights such as those that were inspected at the Cullerin Range wind farm. We have concluded that the installation of such lights on turbines visible from dwelling locations on these properties, although the lights will be visible in the night sky, because of the distances from any lit turbines, would not provide sufficient additional impact to warrant changing our primary conclusion with respect to these landholdings and dwellings collectively.

280 Finally, with respect to these properties in the Mummel area, we have also considered whether the impacts, considered cumulatively over the totality of the group of properties (rather than on a property by property basis) should warrant us drawing any differing conclusion – either with respect to the overall project or with respect to any individual turbines. We have concluded that the totality of these impacts leads to the conclusion that nothing concerning this group of properties in the Mummel area, collectively, warrants alteration of the project let alone its refusal.

Southern section – north-eastern area

Johnson property

281 The Johnson property is at the northern end of the southern section of the proposed wind farm. There are 2 dwellings on the property, the main residence (PW5) and an old cottage (PW36). The Johnsons are in the process of renovating the old cottage, as it is where they plan to live in the future (due to the old cottage’s extensive views). Mr Johnson stated that they accepted that their view included existing 30 m tall transmission towers and lines but the proposed turbines would be 5 times taller and thus create an unacceptable visual impact. Turbines POM_01 – POM_05 would be clearly visible with POM_01 being about 900 m from the cottage.

282 Also in this view is the proposed substation located about 700 m from the cottage. Mr Johnson contends that this will operate 24 hours a day and emit a low-pitched droning sound. He was concerned that it will be lit at night and there is no topographic screening. Mr Johnson was informed at the on-site hearing that landscape screening was proposed for the substation. The Johnsons were also concerned that, as the construction period could be 2 years and there would possibly be construction traffic past both dwellings (both being close to an access road), this would be difficult to live with.

283 Unlike any of the other locations where we assess if there is justification for either modification of the proposed development by the deletion of one or more turbines or the alternative of acquisition of a property to eliminate the necessity for the removal of those turbines, no such alternatives exist for elimination of the substation as this substation is the sole such facility for the proposal. The substation makes possible the feeding of the power generated by the wind farm into the State electricity grid. As a consequence, modification to address impacts on the Johnson's property is only possible with respect to the north-east Pomeroy sector turbines but is not possible with respect to the substation.

284 In oral evidence, the acoustic experts agreed that the noise from the substation, although discernable, would be within acceptable limits for these dwellings.

285 The substation is to be a significantly sized industrial compound. The substation is planned to be screened by landscaping. However, direct visual screening of this substantial structure could not be achieved except after a considerable time lapse for landscaping establishment after planting. Night lighting will be limited and not intrusive after landscaping is established but, even if downwardly focussed (as we understand is proposed) will be visible from the old cottage until the compound’s landscaping is established.

286 This property will have the benefit of the landscaping condition, for each of the dwellings upon it. However, taking advantage of the landscaping condition, even assuming that such landscaping could successfully shield, over time, the turbines in the north-eastern Pomeroy group, would require the obliteration of much of the outlook from the open space in the curtilage of the old cottage to the south and south-east of it as well as views from within this dwelling. As the land in this vicinity falls away, giving the old cottage its present pleasant rural outlook, landscaping would necessarily remove this. The flat area in the curtilage of this cottage (away from the road and on the southern side) is the area where the Johnsons propose, as part of their renovations, to establish the principal private open space living areas for the cottage.

287 The nearest turbine, POM_01, is well less than a kilometre from the old cottage and will be significantly visible. We have also concluded that the visual impact of turbine POM_01 would be exacerbated, to a minor extent only, if aviation hazard warning lighting were to be required in the future.

288 A less disadvantageous position applies for the present dwelling occupied by the Johnsons as it is some hundreds of metres to the north-east of the old cottage and is virtually exactly, as best we are able to establish from the marked topographic map, a kilometre from the nearest turbine, POM_01. The base of that turbine will be at approximately the same altitude as the present Johnson dwelling (as is also the case with the old cottage). Although there will be some vegetation blocking of the views of the closest turbine from this dwelling and this dwelling appears to be oriented generally away from the turbines in the north-eastern portion of the Pomeroy sector, nonetheless a significant number of these turbines, POM_01 through to POM_05, are likely to be visible from this dwelling. Examination of the topographic map and air photo shows that the present dwelling is likely to be screened by intervening landform and vegetation from most (if not all) of the substation.

289 Apart from the limited noise impact from the substation on the Johnsons’ old cottage, there are not likely to be any additional impacts from the proposed wind farm on either of the Johnsons’ dwellings. There will be no shadow flicker impact on either of these dwellings.

290 When we had reached the preliminary conclusion that there was a significant adverse visual impact on the present secondary (and future proposed principal) dwelling on the Johnsons’ property, we considered whether or not this could be sufficiently ameliorated by the removal of POM_01 – given that the other significantly impacting element of the wind farm, the substation, would be ameliorated by landscaping but only after some lengthy period of time.

291 In considering this, we concluded that it would be unreasonable, given the impact on the outlook from the proposed principal open space of the old cottage and thus on the amenity of this area (assuming that the owners of this property would not install adversely impacting vegetation on their property in order to ameliorate impacts arising from activities on the adjacent property) to leave this outlook without moderation of the impact from the wind farm.

292 As a consequence, we have concluded that the cumulative impact during the landscape establishment phase for screening of the substation coupled with the proximity of POM_01 constitutes an unacceptable impact on the old cottage element of the Johnson's landholding. The cumulative effect could be cured by the removal of POM_01 as we consider that the shorter-term impact (that would be cured over time by the landscaping of the substation), whilst visually intrusive during that establishment time, would not in itself be so great as to require intervention.

293 As a consequence, we have concluded that the acquisition condition discussed in more detail elsewhere in this decision should apply to the Johnsons’ property unless the proponent removes POM_01. Whilst the removal of POM_01 would also provide marginal benefits to other properties, removal of POM_01 is not required because of those impacts on any of the other potentially benefiting properties.

Benjamin property

294 As part of our inspection of properties at the northern end of the Pomeroy sector, we walked up the gently sloping ridgeline on the associated property that is between the Johnson property and the Ikin property – passing across the location of the proposed substation – to reach, at the crest of the spur, the approximate site of POM_01. From this location, we were able to look to the north and north-west over the Benjamin property. We note that, because of the time constraints during the site inspection, we were unable to visit the Benjamin property.

295 Because of the topography in the vicinity together with the intervening vegetation screening, we were unable to see the Benjamins’ house from the site of POM_01. This turbine is to be the closest turbine to the Benjamin's house. Even taking a precautionary position concerning Dr Slack’s calculations, there is no likely shadow flicker impact on this dwelling. There is the potential for a minor adverse noise impact on this dwelling at a wind speed of 6 m/s for the V90 modelled turbine but there is no modelled non-compliance for the other two turbines.

296 The Benjamins have owned their property (PW34) for 12 years. Mr Benjamin stated that the existing transmission lines traversing to the north-west of his property had reduced the value of his property and if the wind farm is approved, his views to the south will be dominated by turbines thus causing a further reduction in the value of his property. It appears from the air photo, that the Benjamin property has some screening from existing vegetation however they are likely to see POM_01, POM_02 and POM_05 – all of which are less than 1 km away.

297 Although some parts of these (and possibly other) turbines, at the least, will be able to be viewed from various locations on this property, when we consider the combination of the topographic and vegetation shielding, visual impact, in the absence of shadow flicker and with only a minor risk of noise impacts, does not warrant any modification of the proposal let alone its refusal.

298 We have also considered whether or not the conclusion that we reached with respect to this landholding would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that, at the distance that the turbines that impact on this property are proposed to be located, there would be no additional visual impact of any significance.

299 Mr Benjamin's concerns relating to the value of his property are, for the reasons discussed elsewhere, not relevant matters for our consideration – even if they were to be well founded (a matter about which we make no assessment).

Ikin property

300 To the south of the Johnson property is that belonging to the Ikins (PW7). They run a cattle stud supplying the cattle industry with seed stock and are concerned about the disturbance from flicker and noise that the turbines may have on their calving cows and thus their business. In their submission, the Ikins state that they have spent considerable time, money and effort in improving and protecting the natural landscape and that they have a succession plan in place for their children.

301 The house and nearby sheds are well screened by planted and remnant vegetation. However, POM_01, POM_02, POM_03 and POM_08 are within 1 km of the dwelling as is the substation. A further 5 turbines are 1.0 - 1.5 km and another 7 in the 1.5 - 2.0 km range (these are also all in the Pomeroy group). The substation is about 800 m from the dwelling but will largely be topographically screened and additional landscaping will significantly reduce the visual impact.

302 Topography and vegetation are likely to screen most turbines proposed to the north and north-east. It is possible that POM_01 will be visible from the dwelling area (including the shed to the west of the house). If POM_01 is removed rather than the proponent acquiring the Johnsons’ landholding, any visual impact from POM_01 on the Ikin landholding would also be removed.

303 Dr Slack calculates, after his various adjustments, that the Ikin dwelling will experience 10 hours of shadow flicker per annum. Taking a precautionary position concerning Dr Slack’s calculations, there is likely to be an appreciable shadow flicker impact on this dwelling absent other mitigating factors. Because of the topographic and vegetative screening of the turbines to the east, shadow flicker impact on the dwelling may be lessened but it is not, in our assessment from the site inspection, likely to be eliminated entirely.

304 There may be some extremely limited noise transmission from the substation – although we consider that to be unlikely because of the modest topographic screening between the substation and the dwelling. There is the potential for adverse noise impact on this dwelling at wind speeds of 6, 7 and 8 m/s for the V90 modelled turbine but there is no modelled non-compliance for the other two turbines.

305 There will also be filtered views, however, of a number of turbines to the south in the central Pomeroy group, POM_08 through to POM_15, through the existing landscaping in the vicinity of the house and the paddock vegetation on this property.

306 The other impact on this property is the Crown road access to POM_01 and the substation. The Crown road reserve would dissect the property and cut through a gully and spring about 60 m to the north-east of the house to a dam on the adjoining associated property. At the time of the site inspection, there was no formed road. The Crown road would be used for access for construction, maintenance and underground cabling.

307 Subject to consideration of any possible environmental impacts of construction and utilisation of the Crown road reserve, there is nothing of which we are aware that acts as an impediment to the utilisation of such a road reserve for access purposes. Unlike the other Crown road reserve element of the proposal discussed elsewhere, there do not appear to be any unusual environmental factors requiring consideration in the assessment of the possible use of this Crown road reserve as an access for the proposed wind farm.

308 Whilst such use will have some impact on the way Mr Ikin manages his land, any such impact will be a consequence flowing from any use of this Crown road reserve whether for the proposed wind farm for access to the approved Pomeroy West subdivision. We do not consider that the proposed use of this Crown road reserve provides any basis upon which we could intervene, in any fashion, with respect to the proposed wind farm.

309 As a consequence of that which is discussed above, on a fine balance, there is not sufficient basis upon which we could require modification of the proposal because of impacts on this property let alone refuse the proposal. If POM_01 were to be removed, the closeness of this balance would dissipate somewhat.

310 We have also considered whether or not the conclusion that we reached with respect to this landholding would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that, at the distance that the turbines that impact on this property are proposed to be located, there would be no additional visual impact of any significance.

311 Mr Ikin's concerns relating to the value of his property are, for the reasons discussed elsewhere, not relevant matters for our consideration – even if they were to be well founded (a matter about which we make no assessment).

Barber property

312 The Barber property (PW4) was purchased for the purpose of a horse stud. Mr Barber stated that he has made considerable improvements to the property and has planted over 3000 trees. As a self-funded retiree, he believes that the approval of the wind farm will devalue his property and jeopardise his future. The view towards the closest turbine POM_01 at about 1.8 km away will be screened by remnant vegetation, planted vegetation and the topography.

313 Although this property is almost due west of POM_01, the intervening vegetation and topography, coupled with the separation distance, means that there will be no shadow flicker impact on this property. There is no likelihood of noise non-compliance for this dwelling.

314 Mr Barber's concerns relating to the value of his property are, for the reasons discussed elsewhere, not relevant matters for our consideration – even if they were to be well founded (a matter about which we make no assessment).

315 There is no impact on this property that would warrant any modification to the proposal let alone its refusal.

316 We have also considered whether or not the conclusion that we reached with respect to this landholding would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that, at the distance that the turbines that impact on this property are proposed to be located, there would be no additional visual impact of any significance.

Price landholding

317 There are two dwellings on the Price landholding – this landholding being located to the west and the south-west of the Ikin property. During the site inspection, we visited this property and walked around the vicinity of the more southern of the two houses, PW9. We did not visit the more northern of the two houses, PW8.

318 The matters that Mr Phillip Price raised concerning his water supply and impacts on platypus by the construction of an access road along an unmade Crown road are discussed earlier in this decision.

319 The turbines that are closest to the two dwellings on the Price landholding are those in the central western group of the Pomeroy sector – with the closest turbine to the house that we visited being POM_12 at a distance of approximately 1.2 km. POM_09 is almost due east of the visited dwelling at a distance of approximately 1.4 km. POM_09 and POM_12 are also the closest turbines to the unvisited the house on the Price landholding and they are each at a distance of approximately 1.6 km to the south-east of the unvisited dwelling. Neither dwelling is at risk of shadow flicker impact as the unvisited dwelling has no turbines at any potentially shadow flicker causing distance to the east whilst, for the visited dwelling, it is shielded by the lightly vegetated knoll immediately to its east. There is no likelihood of noise non-compliance for these dwellings.

320 When we walked from this more southern of the two price property dwellings to a point where we could overlook Gurrundah Creek toward Mr Price’s water supply, we did so by traversing around and over the vegetated knoll to the east of this dwelling. This topographic feature, because of its proximity to the house, will effectively visually screen the house from virtually all (if not all) viewing of turbines in the central Pomeroy group being turbines, POM_08 through to POM_15.

321 Although we did not make an assessment during the course of our visit to this house of what turbines in the north-eastern element of the Pomeroy sector, if any, might be able to be viewed from this location, any turbines that might be visible in that north-eastern cluster would be in excess of a distance of 2 km from the dwelling and, in addition, would be subject to some intervening topographic or vegetative screening.

322 A similar position applies with respect to any possible viewing of the north-eastern Pomeroy sector turbines from the unvisited dwelling.

323 As a consequence, with respect to each of the dwellings on this landholding, there is no basis to require modification of the proposal or to require its refusal.

324 We have also considered whether or not the conclusion that we reached with respect to this landholding would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that, at the distance that the turbines that impact on two dwellings on this landholding are proposed to be located, there would be no additional visual impact of any significance.

325 Mr Price's concerns relating to the value of this landholding are, for the reasons discussed elsewhere, not relevant matters for our consideration – even if they were to be well founded (a matter about which we make no assessment).

Aggregated assessment of impacts on the north-eastern properties of the southern sector

326 The various assessments above have dealt with the impacts, if any, on the five landholdings requiring consideration that are north or north-west of the southern section of the proposed wind farm. With respect to one of them, the Johnson property, intervention by acquisition or removal of one turbine is required.

327 However, we also turn, as we did with respect to the Mummel area properties, to consider the question of whether or not there is some aggregation of impacts in this area that would warrant any broader alternative conclusion more onerous on the proponent than the conclusions we have reached relating to the individual properties. We do not consider that there is.

328 None of the possible impacts on the Ikin property when added to those on all of the three more tangentially impacted properties, when aggregated with the impact to the Johnson property, warrants any additional modification to the proposal let alone refusal of it. Aviation hazard lighting, if required, would not alter our conclusion on this.

329 If the outcome, as a consequence of our conclusion relating to the Johnson property, is the resultant removal of POM_01 rather than acquisition of the Johnson property, this will provide some benefits, ranging from minor to marginal, in our view, for the outlook of the other three properties in this area (the benefit to the Ikins having been noted earlier) but is not a necessary improvement in those outlooks.

Formby & Brown

330 Mr Formby and Ms Brown have a landholding totalling 164.2 ha. This landholding is west of the southern section of the Pomeroy sector of the proposed wind farm. It is, on their written evidence, subdivided into two allotments each of which has a dwelling entitlement. The closest turbines to these dwelling sites will be in the Pomeroy sector. For the first of their dwelling sites, the closest turbine will be POM_12 at approximately 3.7 km and generally to the east. From the topographical map, it is likely that three turbines will be significantly visible from this house site whilst minor elements of some other turbines in the more easterly rows of the central and southern sections of the Pomeroy sector may also be visible.

331 From the second house site, the closest turbine will also be POM_12 at a distance of a little less than 3.6 km. The position with respect to the viewing of other turbines will be the same as for the first discussed dwelling site.

332 There will be no noise impact or any shadow flicker impact on either of these dwelling sites. Although outside the limit for obtaining the benefit of the landscaping condition, the distance from each of these dwelling sites to the nearest turbines is such that no modification to let alone refusal of the proposal is warranted.

333 The concerns held by Mr Formby and Ms Brown relating to the value of this holding are, for the reasons discussed elsewhere, not relevant matters for our consideration – even if they were to be well founded (a matter about which we make no assessment).

334 We have also considered whether or not the conclusion that we reached with respect to this landholding would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that, at the distance that the turbines that impact on two dwellings on this landholding are proposed to be located, there would be no visual impact on either of them.

The Christie property

335 The Christie property covers an area of some 2,446 ha on the western side of the southern group of turbines from POM_19 to GUR_15.

336 There are three existing dwellings on the property identified as PW12 in the north-western section of the property and G34 and G35 in the southern section of the property. PW12 is some 3.5 km away from the nearest turbines (POM_21 to POM_23). G35 is just inside a 2 km radius and G34 is just outside that radius. The nearest turbines to these properties are GUR_13 to GUR_15. Mr Christie’s main concerns relate to the impact on an approved subdivision.

337 Mr Christie has approval for the first of what he anticipates to be a three-stage subdivision of his landholding. This first, approved stage divides his landholding into 10 lifestyle rural allotments each with a dwelling entitlement and two larger residual allotments. The proposed subsequent subdivision stages are proposed to be located primarily (but according to a concept plan in evidence, perhaps not excluding some elements of his present subdivision – the detail not, in our opinion being material) over the residual allotments. The two large residual allotments are in the north of his landholding. Mr Christie's property is generally undulating, open pasture and comparatively lightly timbered but has, as the topographic map discloses, steeper and more gullied sections on the two residual, northern allotments.

338 We inspected Mr Christie's property, either by going to the nominated house site or by viewing as we drove past along its Gurrundah Road frontage. We inspected several of the sites that were on the plans approved by the council. We did not access the two large residual allotments.

339 There is the potential for adverse noise impacts on the presently nominated dwelling sites on Lots 5 and 7 with the noise at these locations possibly being between 37 to 39 dB(A). There would be no shadow flicker impact on the presently nominated house site on Lot 5 but the presently nominated house site on Lot 7 could expect up to 15 hours shadow flicker per annum (adjusted downward to this number by 50% on the basis earlier discussed). However, the down slope portions of each for these allotments, closer to the road would not be subject to adverse noise or shadow flicker impacts.

340 There would be no other allotments in Mr Christie’s present holding configuration that would experience adverse noise or shadow flicker at any identified house or house site and such affectation by these factors on his residual allotments would not preclude the selection of an un-impacted house site on either of them.

341 On the plan of the subdivision, proposed dwelling sites are identified on the various allotments. However, it was Mr Christie’s farm manager’s on-site evidence that these building envelopes were not fixed but merely had to be shown as demonstrating that a suitable building site was available on the allotment. It was also his evidence that he understood that, subject to demonstrating appropriate bushfire protection and availability of a sufficient and appropriate area for the disposal of effluent, any other compliant location of a dwelling site within the allotment would be likely to be approved, in a development application, as an alternative to the nominated dwelling site. Mr Christie’s statement indicates that the house sites “were selected to maximise the north easterly viewshed which is a feature of most of the propose lots.” Mr Christie’s statement makes no mention of any particular planning constraints on house sites and none, other than those noted by Mr Christie’s farm manager, would, from our observation, appear to arise. Certainly, none arise from the terms of the council’s conditions of consent to Mr Christie’s development application, DA 21/07.

342 The presently nominated location of these dwelling sites is on the more elevated north-eastern portions of the allotments. From these dwelling sites the southern turbines in the Gurrundah group would dominate the view to the north from the dwelling site on Lot 5 and to the east and north from the dwelling site on Lot 7.

343 Whilst there might be some minor constraints in finding alternative house sites for each of these allotments, such as drainage lines to farm dams, we are of the view that alternative approvable house site locations can be found on Lots 5 and 7 that are closer to the closer to Gurrundah Road and not subject to adverse noise or shadow flicker impacts.

344 A combination of design of dwellings taking advantage of the topography and with suitable orientation and landscaping, would mitigate the visual impact of the turbines on approvable house site locations on Lots 5 and 7 and on any other presently approved dwelling sites, where this might be needed, to an acceptable level. We note, in this context, that all the other designated dwelling sites within Mr Christie’s subdivision are significantly further from the proposed turbines (although those south of Gurrundah Road may need to have their locations reconsidered) and none will have an unacceptable visual impact.

345 As a consequence of our examination the shadow flicker and noise contours for these allotments, we do not consider that there is any combination of potential visual, noise, or shadow flicker impacts that would warrant a requirement to incorporate any of these allotments into the acquisition schedule. However, given our decision, discussed later, to include existing subdivision allotments with existing dwelling sites specified in the subdivision approval (but no current dwelling approval) in the landscaping conditions, as these dwelling sites will need to be relocated as a consequence of this decision if the wind farm proceeds, the relocated dwelling sites are still to have the benefit of the landscaping conditions. The amended conditions are so to specify.

346 The concerns held by Mr Christie relating to the value of his landholding are, for the reasons discussed elsewhere, not relevant matters for our consideration – even if they were to be well founded (a matter about which we make no assessment).

347 We are also considered whether or not the conclusion that we reached with respect to any allotment within this landholding would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that, at the distance that the turbines that impact on this property are proposed to be located, there would be no additional visual impact of any significance.

348 Given these conclusions concerning allotments within Mr Christie's subdivision, despite the concession made by the proponent at paragraph 49 of Mr Pickles’ written submissions that acquisition of Lot 5 in the subdivision is warranted, we are unable to accede to this view. Although we understood that there might be some preparedness by the proponent to acquire Lot 5 as it might facilitate access arrangements to the southern turbines in this sector, there is no basis founded on our assessment that would require inclusion of this allotment in the acquisition schedule.

349 However, if in light of the conclusions we have reached in this decision, Mr Christie and the proponent wished to have Mr Christie's Lot 5 incorporated, by consent, in the acquisition schedule (without any turbines being identified as impacting turbines), we see no reason why this could not be done at the time of finalisation of the conditions of consent pursuant to the directions given at the conclusion of this decision.

Cumulative impact on the southern sector

350 With respect to the totality of impacts on individual properties in the southern sector, we have also considered whether these impacts, considered cumulatively over the totality of these properties (rather than on a property by property basis) should warrant us drawing any differing conclusion – either with respect to the overall project or with respect to any individual turbines. We have concluded that the totality of these impacts leads to the conclusion that nothing concerning this sector, collectively, warrants alteration of the project let alone its refusal.

Northern section – south-eastern properties

Picker-Wales

351 This is a 6 ha property (B8) with six turbines within 1.5 km and another 4 within 1.5 and 2 km. The southern section of the Banister group would be visually prominent on the range from the north-west to the south-west of the property. Apart from the visual impact, Ms Picker is concerned about the noise and health impacts on her children and her husband. The family spends a great deal of time outside working with and riding their horses. She is also concerned about the impact that shadow-flicker may have on the horses and the potential safety consequences for anyone riding.

352 Essentially this property is a lifestyle landholding rather than a working farm. The activity areas, including the horse yards that are the principal focus for the family's activities are between the house and the turbine row along the hilltops to their west. Turbines BAN_25 and BAN_26 will be visually prominent from the road frontage paddocks and the horse yards to the west of the dwelling whilst BAN_22 will also be somewhat prominent to the north-west.

353 Although we do not consider that there will be a significant impact on the living areas of the house (as their orientation appears to be away from the proposed wind farm), the nature of the family's activities and the comparatively small size of the landholding causes us to take a more cautious approach to this landholding than to other more broadacre agricultural landholdings.

354 Mr Wyatt prepared a supplementary photomontage taken from the driveway near the horse yards with the view to the west. He notes that the house has some landscaping that will screen some views and that the courtyard area for the dwelling are oriented to the north-east away from the wind farm. However, he states that the visual impact is high from the horse yards and driveway but that screening would reduce the impact to low. We note from the photomontage that there are scattered paddock trees to about 14 m high as well as an established row of Cypress trees between the viewpoint and the turbines. There are also relatively recent tree plantings along fence lines. Whilst these may provide some future screening from less elevated areas of the property, they are unlikely to make any significant difference to the visual impact of the turbines from the main area of family activity.

355 We consider that Mr Wyatt's opinion concerning landscape screening is optimistic given that the existing vegetation, some elements of which are substantial, would presently only provide screening from limited and less intensely used elements of the property. Whilst it might be possible to plant a row of fast growing trees (such as Leighton Greens) to provide a hedge to the horse yards, even planting comparatively advanced specimens would still leave a significant period of time before such plantings would provide adequate screening. Even if this were to occur and were to be regarded as an acceptable long-term resolution to the high visual impact on these intensely used areas, it does not alter the unsatisfactory nature of the immediate visual impact nor the impacts on the other paddocks outside the yards that are used for family activities with their horses.

356 On a conservative view of Dr Slack’s calculations, it is likely that there would be some minor degree of shadow flicker impact on this property (including at the horse yards). There is no likelihood of noise non-compliance for this dwelling.

357 As a consequence of the visual impact (reinforced to but a minor extent by shadow flicker impact), we have concluded that the proponent should acquire this property or remove turbines BAN_22, BAN_25 and BAN_26.

358 We have concluded that the unacceptability of the impact on this property would be exacerbated, to a minor extent only, if aviation hazard warning lighting were to be required in the future.

Evans

359 The Evans dwelling (B19) is some 100 m or so to the east of the Picker-Wales dwelling. We did not visit this property but heard oral evidence from Mr Evans who stated he was concerned with noise impacts and the re-sale value of his property. He questioned whether the property would be able to be sold if the turbines are built. The outlook would be similar to that of the Picker-Wales except that, according to the written submission, their main enjoyment of the location of their house is their view to the west. Mr and Mrs Evans state that there is no screening on that side of the house.

360 The Evans property is in a somewhat different position, as best we are able to understand, when compared to that of the Picker-Wales property. Although the geographic difference is comparatively small, with the Evans’ house being only some 100 m further removed from the turbines than the Picker-Wales house, the nature of the property appears to be significantly different – in that the Evans property appears to be a conventional farming enterprise rather than an equestrian-oriented lifestyle property as is the Picker-Wales property.

361 There is no likelihood of noise non-compliance for this dwelling. On a conservative view of Dr Slack’s calculations, it is likely that there would be some minor degree of shadow flicker impact on this property in its road frontage paddocks but not at the dwelling.

362 We accept that there is, as noted above, no screening between the Evans’ house and the proposed wind farm. The Evans’ house falls under the landscaping entitlement regime and the house itself would be capable, over time, of being screened from the turbines. However, this would eliminate the Evans’ enjoyment of their view to the west from their house.

363 The property activities outside the Evans’ house are matters about which we have no evidence and we are certainly not able to conclude that there is an intensive family-oriented land use to the west of the Evans house of the nature discussed concerning the Picker-Wales property. On the assumption that the Evans’ property is a conventional agricultural one, we are not prepared to conclude that there will be a significant impact on persons undertaking management activities around the property as a consequence of the visible turbines.

364 We also note with respect to the Evans’ property that the perspective that they have of the turbines is a linear one – that is the turbines able to be viewed from their property are ones that run, effectively, in a perpendicular line across their line of sight. There is, certainly, no sense of the surrounding of this property by turbines – as was the position dealt with, for example, by Preston CJ concerning two properties, Cloverlee and the Ross property, discussed in Taralga.

365 Mr Evan's concerns relating to the value of his property are, for the reasons discussed elsewhere, not relevant matters for our consideration – even if they were to be well founded (a matter about which we make no assessment).

366 If the Picker-Wales property is not acquired by the proponent, the consequent removal of three turbines will provide a significant improvement in the visual outlook of the Evans property. However, for the differences we have set out, we do not think that, on balance, incorporation of the Evans property in the acquisition regime is appropriate as it is not a special case like that of the Picker-Wales property.

367 We have concluded that the impacts on this property would be exacerbated, to a minor extent only, if aviation hazard warning lighting were to be required in the future but not sufficiently to disturb our conclusion immediately above.

B33

368 This dwelling is one where we have a photomontage prepared by Mr Wyatt (reproduced below). It is located on a small landholding and would have three turbines, BAN_20, BAN_21 and BAN_22 above and in close proximity to the dwelling. BAN_20 would be approximately 600 m from the dwelling, BAN_21 some 500 m from the dwelling and BAN_22 at approximately 800 m from the dwelling.

[<img src="/lecjudgments/2010nswlec.nsf/files/After_368.JPG/$file/After_368.JPG" alt="After 368">]

369 Other turbines at the southern end of the Bannister sector, BAN_23, BAN_24, BAN_25 and BAN_ 26 would be between a kilometre and approximately 1.4 km from this dwelling and are likely to be highly visible (whether in part or in whole) from this dwelling.

370 This dwelling would be significantly adversely impacted by the proposal. There would be adverse noise impacts on this dwelling at wind speeds of 7 to 10 m/s for the V90 modelled turbine but there is no modelled non-compliance for the other two turbines. The present dwelling has a degree of mature vegetation screening around it. However, on Dr Slack’s calculations, the curtilage of the dwelling could expect up to 58 hours shadow flicker per annum (almost double the acceptable limit).

371 The owner of B33 is not a member of the Guardians. We did not visit this dwelling. We were informed that the resident of this dwelling is elderly and did not wish to be part of the proceedings. However, we have an obligation to assess and deal with the possible impacts of the wind farm not merely on the basis of those who have chosen to participate in the proceedings but also on the basis of addressing, as necessary, all relevant planning impacts as part of the broad public interest consideration.

372 As earlier noted, in Terrace Tower, Mason P observed that information on the public interest might come from a range of sources. In this case, it is the proponent's own documents (being the topographic maps and the like) that raise the question of the impact on this property. Whilst it may well be that the owner of this property does not wish to take part in the acquisition regime that will arise from this decision, that is a choice that should be made open for his consideration given the extent of the adverse visual, noise and shadow flicker impacts that will arise for this property – as those impacts are substantial and unacceptable. As a consequence, this property will be included in the acquisition schedule with BAN_20, BAN_21 and BAN_22 as the unacceptable turbines.

373 We have also concluded that the unacceptability of the impact on this property would be exacerbated, to a minor extent only, if aviation hazard warning lighting were to be required in the future.

Aggregated assessment of impacts on the northern section – south-eastern properties

374 We also turn, as we have done with other groups of properties, to consider the question of whether or not there is some aggregation of impacts in this area that would warrant any broader alternative conclusion more onerous on the proponent than the conclusions we have reached relating to the individual properties. We do not consider that there is as we have included two of the three properties in the acquisition schedule.

Northern section – central-eastern properties

Humphrey & Jennifer Price-Jones

375 Humphrey and Jennifer Price-Jones own 246 ha and their house’s site, identified as B12, is on the eastern side of the range. They contend that the EA is flawed and misleading and that the proximity of 12 turbines within 2km of the house will have unacceptable visual, noise, financial and health impacts. There is sub-division potential for their property under the current applicable LEP and, in their view, there is sub-division potential under the new draft LEP (although this may be more limited). In their written submission they state that turbines would be located on 3 of their property boundaries and 61 of the proposed 84 turbines would be visible to some extent, particularly those in the Kialla and northern Banister group. Mrs Price-Jones gave additional evidence in court in support of their concerns.

376 Mr Wyatt prepared a supplementary photomontage (viewpoint 4c) from a site within the Price-Jones garden. In the comments accompanying the photomontage in his statement of evidence, Mr Wyatt said:

There are many locations along this road [Glenaber Road – the access road to the house] from which the wind farm will be visible, however, this vantage point was taken within the garden. This house has a well-established garden and a wetland/lake in the western area of the garden in which seating locations (such as the gazebo..) have been developed which have views to the wind farm. The nearest wind turbines are approximately 1.53 km to the south-west and at this distance the wind turbines will usually dominate the landscape. However at the locations around the garden established vegetation does assist to filter and screen views to the wind turbines. Because of the distance and the intervening vegetation from many locations the visual impact is assessed as medium.

377 Mr Wyatt rates the overall visual impact a moderate without screening and low with screening. Mr and Mrs Price-Jones dispute this conclusion as they contend that as the turbines are to be constructed on ridge-lines, it will be impossible to plant trees to a sufficient height to screen the turbines from areas outside the house. In her oral evidence, Mrs Price-Jones contended that people who live and work on rural properties are outside most of the time and use the whole of their properties.

378 Mr Pickles contends that in the absence of any approved subdivision and demonstrated likelihood of the ability to gain consent for dwellings on the parcels of land in proximity to the Banister turbines, there is no basis for requiring acquisition of large parts of the Price-Jones landholdings.

379 Assessment of the impacts on this property is potentially made more complex by two contingent outcomes concerning the proposed wind farm. The first of them, relating to the possible reinstatement of the south-eastern group of turbines in the Kialla sector is, as we have earlier noted, not a matter upon which we propose to speculate. If, at some subsequent time, a further application is made to the Minister to reinstate any or all of those turbines, an assessment may be necessary of those turbines’ impacts on this property.

380 However, our assessment of the impact of the proposal we are required to consider, as far as it concerns this property, is, to some extent, dependent on whether or not, for the reasons discussed below, the proponent acquires the Gareth and Shondelle Price-Jones property or elects to delete turbines BAN_14 and BAN_15.

381 If the Gareth and Shondelle Price-Jones property were to be acquired and BAN_14 and BAN_15 were not to be removed from the proposed wind farm, the impact on the dwelling and its near curtilage would be exacerbated but not sufficiently, in our view, to warrant incorporation of this landholding in the acquisition schedule on the basis of impacts on the dwelling or its near curtilage.

382 There are two further aspects of impact on this landholding, in a broader sense, that also require consideration. The first is the matter raised by Mrs Price-Jones concerning visual impact when working on the property outside the curtilage of the dwelling and the second is the extent of shadow flicker impact on the western portions of the property under the same circumstances.

383 Toward the commencement of our individual property assessments, we observed, with respect to the Brooks’ property, that:

.............. whilst working outdoors, they will have the added distraction of whatever activity upon which they are engaged.

384 A similar position applies, broadly, to this landholding – although the visual impact of the turbines under these circumstances for this landholding will be modestly greater because of two factors. The first is that the visually impacting turbines in the north-east of the Banister sector will be closer than those observable from the Brooks’ property and the relevant Banister sector turbines will also be not as elevated above the working areas of this landholding as would be the position for the Brooks’ property. The extent of this aspect of visual impact on this landholding is also dependent on whether BAN_14 and BAN_15 are deleted or not.

385 The second factor that impacts on the external working areas of this property, at least in the vicinity of its western boundary and for, it would appear, possibly most of the north-western third of the property, is shadow flicker. The extent of this shadow flicker impact is not dependent on whether BAN_14 and BAN_15 are removed. Indeed, if they are not removed, the will be a small added area in the south-western corner of this property where shadow flicker would be experienced.

386 It would also appear reasonable to assume, from the contours, that there will be noise experienced outdoors at the western end of this property above the compliance level that would apply for a dwelling (although this cannot be regarded as being non-compliant with the South Australian guidelines because impacts away from the curtilage of a dwelling are not regarded, by those guidelines, as being ones at a sensitive receiver location). The likelihood of such impacts, however, is a matter that we consider is of relevance in distinguishing the possibility of outdoor working impacts on this landholding when compared to those that would arise on the Brooks’ or other landholdings.

387 Even taking these additional impacts into account, if BAN_14 and BAN_15 are not to be removed from the proposal, the combination of impacts on the dwelling and the outdoor working environment on the property are such that we consider that it still would fall short, but only to the smallest possible extent, of warranting inclusion in the acquisition schedule. If BAN_14 and BAN_15 are deleted, there will still remain the other impacts described above – leaving the impacts on this landholding modestly close to unacceptable but less significantly so than with BAN_14 and BAN_15 remaining.

388 We have also concluded that the impacts on this property would be exacerbated, to a minor extent only, if aviation hazard warning lighting were to be required in the future.

389 However, if aviation hazard warning lighting was to be required in the future and BAN_14 and BAN_15 are not removed from the proposed wind farm, the balance of the impacts on this landholding would be tipped and it would then warrant acquisition. Although we have not included this landholding in the acquisition schedule, the conditions are to require that the acquisition provisions are to be triggered for this landholding if such aviation hazard warning lighting were to be required in the future. We expressly note that these conclusions have not had regard to the possible reinstatement of any or all of the south-eastern group of turbines in the Kialla sector.

Gareth & Shondelle Price-Jones

390 This property has a relatively new house with a very immature garden. The house is identified as B12a. It is on a 16 ha allotment to the south of B12 and close to the perimeter of the wind farm site. Two turbines are located within 1 km of the dwelling (BAN_14 and BAN_15) and another 3 within 1.5 km. Mr Wyatt produced a supplementary photomontage taken from a patio at the rear of the house with views to the south-west. The nearest turbine is 0.95 km from the dwelling and on the ridgeline so that it is above the dwelling and would be dominant in the landscape and outlook from the dwelling.

391 Mr Wyatt rates the visual impact as high with no screening and medium with landscaping but qualifies this by stating that screening may not be applicable as this would also block views from the patio. We are not satisfied that landscaping would be sufficient to reduce the visual impact to a suitable level. We also note, from the site visit, that the windows of living areas and bedrooms also face the south-west and therefore the view is not just seen from the patio. The EA indicates that the site is compliant for noise (for the turbines modelled) and shadow flicker.

392 Even if landscaping would, after a lengthy establishment period, mitigate these impacts (a position that we find it difficult to envisage given the location of the turbines coupled with the orientation of the dwelling and its utilised open space areas between the dwelling and the turbines), the time period that would be necessary before such screening could be achieved would be so long as to be unreasonable if there were to be retention of any reasonable outdoor area for the house. Any shorter-term achievement of screening would need the plantings to be so dense and overwhelmingly close to the house as to constitute, in itself, an entirely unreasonable impact on the amenity of this dwelling.

393 It is our opinion that the visual impact is such that the company be required to either acquire this property or delete turbines BAN_14 and BAN_15. As a consequence, this property has been included in the acquisition schedule on this basis.

394 We have also concluded that the unacceptability of the impact on this property would be exacerbated, to a minor extent only, if aviation hazard warning lighting were to be required in the future.

Raggett

395 The Raggett property (B5) includes the old Kialla schoolhouse. Mr Raggett gave oral evidence concerning the expected loss of property value and the financial consequences for his retirement. He stated that the house was unique and would attract ‘niche’ buyers who would be less inclined to purchase the property if the wind farm went ahead. The house is just inside a 2 km radius from the nearest turbine, BAN_14. The allotment is less than 1 ha and screened by trees however, Mr Raggett states in his written submission that these trees are about 100 years old and dying.

396 Because of the topography, even without landscape shielding, there will be a view from this property of the wind farm that will run from the south-eastern group of turbines in the Kialla sector (if they are replaced) along the whole of the face of the Bannister sector. It is likely that significant portions of more than twenty of the Bannister sector turbines will be visible at distances to a maximum of 4 km or so. If they are reinstated, the seven south-eastern Kialla turbines would be added to this number. However, there is no shadow flicker or noise impact on this property.

397 Although on the flatter land thus looking west modestly upward towards the escarpment of the range rather than being at an elevated position, there is no significant conceptual or impact difference between this property and the Clark and similar properties discussed earlier in the Mummel area. Although the outlook will undoubtedly be changed by the insertion of industrial structures in its landscape outlook to the west, there is no impact that would warrant any modification to the proposal let alone refusal of it. If the proponent does not elect to acquire the Gareth and Shondelle Price-Jones property but eliminates BAN_14 and BAN_15, this property will receive an (unrequired) improvement in its outlook.

398 We have also considered whether or not the conclusion that we reached with respect to this landholding would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that, at the distance that the turbines that impact on this property are proposed to be located, there would be no additional visual impact of any significance.

Aggregated assessment of impacts on the northern section – central-eastern properties

399 Although we consider one of these three properties should be on the acquisition schedule and a second just falls short, we do not think that these aggregate to require some broader restriction on the proposal.

Northern section – northern property

Murphy

400 This property was not inspected. There appears to be, from the topographical map and air photo, two dwellings located on it, one being K 19 and the other being un-numbered. Originally the four north-western turbines proposed for the Kialla sector would have been within about 1.1 km and 1.5 km of the closer of the two dwellings with the second dwelling being some 200 m or so further removed. However, these turbines are the ones that have been removed as a consequence of the Crookwell airstrip considerations and are not subject to the option for possible future reinstatement.

401 Two of the Kialla sector turbines, KIA_02 and KIA_01 will be 2 km or a little further from these dwellings. There will be no noise impact on these dwellings and no shadow flicker impact on them. The nature of the topography makes it unlikely that any of the northern turbines in the Bannister sector will be visible from these dwellings. Even if some of these turbines were wholly or partially visible, such a view of turbines would be inconsequential. There is, therefore, no basis impact on this property warranting modification of the proposal let alone its refusal.

402 We have also considered whether or not the conclusion that we reached with respect to this landholding would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that, due to the distance from and limited numbers of turbines visible from this property, there would be no additional visual impact of any significance.

Northern section – north-western properties

Dennis Hewitt

403 Mr Denis Hewitt has a landholding with a dwelling (K14) that is some 585 ha in area and comprising, on our count, more than 25 individual allotments. His land is primarily located to the east of the Grabben Gullen Road – although six of the existing allotments totalling some 75 ha (and including the location of his residence), are located to the west of the Grabben Gullen Road. At the present time, only two of his existing allotments appear to exceed 40 ha in area and they are located at the south-western corner of his landholding to the east of the Grabben Gullen Road. It was his evidence that he had been advised by the council that his total landholding was potentially capable of subdivision into 18 allotments. This would comprise 11 allotments of 40 ha or more and seven concessional allotments of varying sizes but all significantly less than the 40 ha minimum allotment standard.

404 The existing house is located on the western side of Grabben Gullen Road and is screened from the proposed wind farm by a row of mature Cypress trees. Mr Hewitt accepts that the trees currently provide screening but contends that they are in decline and will shortly need to be removed. He stated that the trees were about 80 years old and that their replacements would take many years to provide acceptable screening.

405 Apart from the visual impact on his existing house, Mr Hewitt estimates, in his submission, that KIA_01, KIA_02, KIA_03, BAN_01,BAN_02, BAN_03 and BAN_04 will be within 10-300m (elsewhere in the submission he gives distances of 40-770m) from his eastern boundary and thus would destroy any prospect of subdivision. As a result, he estimates this will reduce the value of the property by 50% and thus lose value of their retirement asset. We observed earlier that KIA_03 has been deleted. As also earlier noted, several times, loss of value is not a matter we are permitted to consider.

406 It is our arboricultural assessment that these trees, although toward the end of their useful life, will not need to be removed in the near future. It is certainly feasible to plant supplementary rows of fast growing screening trees, such as Leighton Greens, in the area to the east of the present Cypress trees in anticipation of future failure or removal of the present trees.

407 Mr Hewitt’s existing dwelling it is approximately 1.6 km from the nearest turbine – a turbine that is almost directly to its east, being KIA_01. KIA_02 is located slightly to the north of this turbine. These two turbines will be screened from view by the Cypress trees. The group of four turbines at the north-west of the Kialla sector have, as earlier noted, been removed as a consequence of the Minister's decision (not now contested by the proponent) responsive to the location of the Crookwell airstrip. The group of six turbines at the north-west of the Kialla sector, those remaining and those removed, had comprised the cluster of six turbines that was closest in proximity to this dwelling.

408 A number of other turbines in the north-western cluster of the Bannister sector would be able to be viewed from this dwelling but for the screening trees that presently exist. However, these turbines would be more than 2 km from the existing dwelling. The existing dwelling will not be impacted by noise and, even if the vegetative screening were not present, it would be outside any distance for any possibility of shadow flicker warranting consideration. There is, therefore, no impact on this dwelling that would warrant modification of the proposal let alone its refusal.

409 We have also considered whether or not the conclusion that we reached with respect to this dwelling would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that the distance from and screening of turbines visible from this dwelling, there would be no additional visual impact of any significance.

410 The question of potential subdivision, as opposed to existing landholdings with dwelling entitlements or existing dwellings, is discussed later in this decision. However, we consider it appropriate to deal with Lots 118 and 121, these being the two allotments in the south-western corner of this landholding and having an area, in each case, greater than 40 ha. We consider it appropriate to assume that each of these existing allotments might have a dwelling entitlement and thus should be subject to impact assessment on that basis.

411 Lot 118 has a lengthy frontage to Grabben Gullen Road and Lot 121 appears to have Crown road access available from Grabben Gullen Road (possibly from two different access points). The closest turbines to Lot 118 are those in the north-western cluster of the Bannister sector comprising BAN_01 through to BAN_04. Over 50% of this allotment is more than 2 km from the nearest turbine. There would be no noise or shadow flicker impact on a dwelling located anywhere on this allotment. A variety of house sites would appear to be available in the portion of this allotment that is more than 2 km from the nearest turbines – this being demonstrated, in our view, by the marked up air photo of a notional subdivision layout for this total landholding entitled “Thurgoona – Property map”.

412 We turn, next, to Lot 121. It is adjacent and to the south-east of Lot 118. This allotment lies almost entirely within 2 km of the nearest turbines with its western boundary (abutting Lot 118) approximately lying along the 2 km line from the closest turbine (this would be BAN_04). The turbines that would be most visible from any house sites on this allotment would be those in the north-western cluster of the Bannister sector. The air photo does not show any significant vegetative screening on this existing allotment. The distances from this allotment to the nearest turbines means that there would be a range of potential dwelling sites that could not conceivably be impacted by those turbines. In addition, the distance to BAN_04 and BAN_03, the only turbines that could potentially create any shadow flicker impact on this allotment, is such that, even taking Dr Slack’s evidence on a precautionary basis, there is no prospect of anything other than minimal shadow flicker, at most, on some of the more northern portions of this allotment. As a consequence, assuming that Lot 121 does have an existing dwelling entitlement, there is no impact from the proposed wind farm on any dwelling site on this allotment that would warrant a modification of the wind farm let alone its refusal.

413 We have also considered whether or not the conclusions that we reached with respect to Lots 118 and 121 would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that, at the distance that the turbines that impact on the allotments are proposed to be located, there would be no additional visual impact of any significance on either of them.

414 We are therefore satisfied that there is no possible impact on this landholding that would warrant a modification of the proposal let alone its refusal.

Paul Hewitt

415 Mr Paul Hewitt owns 2 allotments in the Grabben Gullen village, both with dwelling entitlements and one adjoining rural allotment with a house (B68). The properties are on the south-western side of Grabben Gullen Road. Mr Hewitt voiced his concern about the change in the landscape from rural to industrial and the subsequent impacts on property values. The properties are outside a 2 km radius from the closest turbines in the Bannister sector. There will be no noise impact on the dwelling or the vacant allotments and no shadow flicker impact on them. As also earlier noted, several times, loss of value is not a matter we are permitted to consider.

416 The visual impact matters that require to be considered with respect to these three allotments are generally the same as those that were considered in our earlier discussion relating to public domain impacts in Grabben Gullen village. The photomontage reproduced earlier shows the outlook towards the nearest turbines from the village and is equally representative, qualitatively, of the visual impact on any of these allotments. For the reasons given about the village, as we consider they are sufficiently similarly applicable to these allotments, there is no basis for these allotments to require modification of the proposal let alone its refusal.

417 We have also considered whether or not the conclusion that we reached with respect to this landholding would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that the distance to and limited numbers of turbines visible from the dwelling and the two allotments, there would be no additional visual impact of any significance.

Hyde

418 The Hyde property (B29) is a ~ 2.4 ha ‘lifestyle’ allotment surrounded by allotments belonging to Mr Hogan. Mr and Mrs Hyde purchased the property for its rural setting. Mr Hyde contends that they would not have purchased the property had they known of the proposal for a wind farm and considers that this will deter future prospective buyers. He is concerned about the visual impact and noise. He estimates a loss of value of 33%. As also earlier noted, several times, loss of value is not a matter we are permitted to consider.

419 Mr Wyatt prepared a supplementary photomontage from the property. In Mr Wyatt’s comments he states that the house has a well-established garden and service areas on the side from which the views to the wind farm would be possible. The nearest turbine is about 1.23 km away (BAN_09) but the established vegetation between the residence and the turbines will lessen the visual impact. He rates the visual impact as low without screening and low with additional screening. Mr Hyde contends that the photomontage did not take into account views from his kitchen window that he says are important.

420 Consideration of the topographical map shows that it is likely that most of the elements of turbines BAN_04, BAN_09 and BAN_10 will be visible from this dwelling and, probably, a number of smaller elements of up to four or five other turbines. Turbines BAN_04, BAN_09 and BAN_10 will all be no more than ~ 1.4 km from the dwelling. There will be no noise or shadow flicker impacts on this property.

421 Although there will be some intrusion of industrial structures (turbines) into the outlook to the east, we do not consider that they will not dominate the outlook from this property. We accept Mr Wyatt’s evidence that the visual impact will be low and in the absence of any other adverse impacts, this does not warrant modification of the proposal let alone refusal of it.

422 We have also considered whether or not the conclusion that we reached with respect to this landholding would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that the distance from and limited numbers of turbines visible from this property, there would be no additional visual impact of any significance.

Hogan

423 Mr Hogan (B28) owns 160 ha with two dwelling entitlements but only one presently erected dwelling. He plans to retire from farming in 5 years and move to town and contends that these plans will be more difficult to achieve if the turbines go ahead. The nearest turbines are BAN_09 and BAN_10 at about 1.3 km to the east. There is no topographic screening from Mr Hogan’s dwelling as the land gently slopes up towards the east. There may be some opportunity for landscape screening. In Dr Slack’s expert report he states that there will be a significant impact of shadow flicker in the east and centre of Lot 143 DP754115 however, he also states that as no house location is as yet approved, the location could be chosen to minimise shadow flicker effect – we discuss this further below.

424 We now turn to the second dwelling entitlement on Mr Hogan’s landholding as our assessment of this entitlement is relevant to our subsequent assessment of impacts on his existing dwelling.

425 Mr Hogan's documentation demonstrates that he has an established entitlement to erect a dwelling on those elements of his present land holding that comprises a combined sub-holding of Lots 143 and 303 DP 754115, Lot 2 DP 541500 and Lot 541499. This entitlement is confirmed by a copy of development consent DA 157/07 from the council – valid until 2 August 2012. Mr Hogan also has further correspondence that indicates that, from two other allotments forming part of his remaining overall landholding, he would have a potential entitlement, subject to approval by the council, for an additional concessional allotment. He has no present approval for such an allotment and, as a consequence, this element of possible future use of part of his landholding falls within the general propositions discussed later relating to landholdings with subdivision potential but which are not presently subdivided.

426 However, the four allotments that are the subject of DA 157/07 do have a present dwelling entitlement and, therefore, consistent with the assessment process we have undertaken in this decision, an assessment, separate from the assessment of impacts on Mr Hogan's dwelling, is required of the impact of the proposed wind farm on any dwelling that might be erected on these four allotments.

427 The four allotments to which the dwelling entitlement attaches are not the most easterly of the allotments in Mr Hogan's landholding. They comprise a strip of land, generally running north-south, of allotments of various sizes. In aggregation, they appear to be, roughly, 400 m east to west and 1.4 km north to south. With the exception of the smallest of the four allotments (Lot 2 DP 541500), an allotment located at about a third of the way to the south from the northern boundary of this group of allotments and on the western edge of them, the relevant air photo shows that there appears to be comparatively little vegetation on the landholding apart from a copse of vegetation adjacent to the north-eastern corner of the smallest allotment noted above.

428 The closest turbine to this group of allotments, to the north-east, is BAN_04 at a distance of approximately 600 m from the northern boundary of these allotments. The closest turbine to the east are BAN_09 and BAN_10 which turbines are also some 600 m from the boundary of these allotments but to the east toward the southern end of the allotments.

429 If the wind farm were to be constructed, it appears to us that the only potentially acceptable location for a dwelling on these allotments would be on the small allotment described above (so as to take advantage of the existing vegetative screening that would be available). There would appear to be, from the presently applicable planning controls of which we have knowledge, no inhibition on the location of a dwelling on this allotment and nothing in Mr Hogan’s development consent specifies where such a dwelling would require to be located.

430 BAN_04 to the north of a dwelling site on Lot 2 DP 541500 is at a distance of approximately 1.2 km. BAN_09 would be about 1 km south-east.

431 As best we are able to assess it from the noise contours on the marked air photo reproduced elsewhere in this decision, it is unlikely that a dwelling on this small allotment would be noise non-compliant. Similarly, interpreting the shadow flicker marked air photo as best we are able, it would appear that there would be little, if any, shadow flicker impact on a dwelling at such a location (even without having regard to the present vegetative screening that would be available).

432 Given the fact that the topographic map discloses that the ground in this vicinity rises comparatively gently towards the Gullen Range to the east, it is likely that, in addition to the two Bannister sector turbines earlier nominated, further Bannister sector turbines are also likely to be visible. The closest of these turbines will be BAN_03 and BAN_07 to the north-east at approximately 1.2 km and BAN_10 and BAN_11 to the south-east also at approximately 1.2 km. The remainder of the turbines are likely to be able to be viewed will be no closer than 1.5 km.

433 The distance from visible turbines coupled with the existing available vegetation and our conclusions concerning noise and shadow flicker lead us to the conclusion that there is no impact on this dwelling site that would warrant modification of the proposal let alone its refusal.

434 We have also concluded that the impacts on this possible dwelling location would be exacerbated, to a minor extent, if aviation hazard warning lighting were to be required in the future – but not so as to warrant our conclusion concerning this element of Mr Hogan’s landholding.

435 Mr Hogan’s existing dwelling is some 250 m to the south-west of the possible dwelling location on Lot 2 DP 541500. The outlook from and visual impacts on Mr Hogan’s dwelling are generally similar to that described above – although obviously the BAN_04 turbines are further away and the BAN_09 turbines are closer. Our conclusions concerning noise, shadow flicker and the possibility of aviation hazard lighting are the same as those for the possible dwelling location on Lot 2 DP 541500. As a consequence our conclusion concerning this dwelling is, necessarily, that there is no impact that would warrant modification of the proposal let alone its refusal.

Ryman

436 Mr Ryman owns a 4.4 ha property on Grabben Gullen Road with a dwelling (B55) and an old school building from the former Gullen Public School. BAN_10 is the closest turbine at about 1.5 km to the east. Mr Ryman contends that the dominant feature of the landscape is its natural form and that this will be lost if the turbines are approved. He believes that landscaping will be ineffective. Whilst his view is somewhat screened by trees, they are elms and therefore deciduous and less effective as a screen in winter. He is also concerned that should elm suckers be removed from an adjoining drainage easement, he will be further exposed.

437 Although the location of Bannister turbines directly to the east of this property will be at a distance of about 1.5 km, taking an extremely precautionary approach to Dr Slack’s conclusions, even if there were to be some shadow flicker impact, it will be minimal. There is no noise impact on this property.

438 Whilst four central Bannister sector turbines are likely to be visible directly to the east with other Bannister turbines visible to the north-east and south-east (but at significantly longer distances with these longer views being moderated by intervening topographic features), the overall visual impact on this property will also be very low even if we assume only minimal vegetative screening at any time of the year when the deciduous trees have shed their leaves or if the shielding vegetation off the property itself were to be removed for some public land management reason.

439 We do not consider that visual impact this property provides any basis to require modification of the proposal let alone its refusal.

440 We have also considered whether or not the conclusion that we reached with respect to this landholding would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that the distance from and limited numbers of turbines visible from this property, there would be no additional visual impact of any significance.

Aggregated assessment of impacts on the northern section – north-western properties

441 We do not think that impacts on these landholdings aggregate to require some broader restriction on the proposal.

Northern section – south-western properties

Montgomery - B7/B17 photomontage

442 We visited the Montgomery property on Range Road Grabben Gullen to view a supplementary photomontage produced by Mr Wyatt in response to the Guardian’s concerns that an inadequate number of visual assessments had been undertaken from private properties. The Montgomerys were not present at that visit but Mr Montgomery gave oral evidence on the second day of site visits.

443 The Montgomerys have approval to subdivide their land into 5 allotments. On two of the allotments are existing dwellings, B17 and B7 and the approved house sites on two of the other allotments are B121a and B122a. B17 is 1.5 km away from the nearest turbine and B7 is 1.4 km away from the nearest turbine, BAN_18. B121a is 0.8 km away and B122a is only 0.6 km away from the nearest turbine, BAN_24. The photomontage was taken near B17 and B7 at a site selected by Mr Wyatt to represent the worst-case location for both properties. Whilst he states in his assessment that at a distance of about 1.4 km the turbines will be highly visible and dominate the landscape, he rates the visual impact as moderate because of groups and rows of poplars and other deciduous trees in the middle ground. He rates the visual impact as low with additional screening.

444 However it is important to observe, in this context, that the trees that provide screening are deciduous and that the extent to which screening will be provided during autumn and winter by the bare skeletal structures of these trees is significantly less than the screening that will be provided whilst they are in foliage.

445 The most affected allotments on the Montgomery landholding are the approved dwelling sites on the sub-divided lots. According to their submission, there will be four turbines within 1 km of these sites. Their estimate shows BAN_24 to be 670 m from B121a and BAN_29 to be 470 m from B122a.

446 Shadow flicker will be somewhat of an issue at 122a with the EA giving 28 hours per annum with allowance for reduced cloud cover. However, based on Dr Slack’s further adjusted calculations he gives 22 hours p.a. as the expectation with reduced cloud cover.

447 As we earlier observed, for reasons associated with the Goulburn derivation of cloud cover data, it is appropriate to take a precautionary view with respect to the numbers derived from Dr Slack’s calculations.

448 In addition, the MDA report in the EA identifies these sites as being exposed to non-compliant noise levels at wind speeds of 5, 6 and 7 m/s for the MM92 turbine whilst the data tendered by the Guardians shows these sites as being exposed to non-compliant noise levels at wind speeds of 5, 6, 7, 8, 9 and 10 m/s for the V90 3MW turbine.

449 In our opinion, landscape screening is unlikely to satisfactorily resolve the visual impact on any dwelling erected at either of these two sites. We have reached this conclusion because of the proximity of each relevant turbine and the topography that will have each relevant turbine at an elevated level relative to the house site impacted by that turbine.

450 Therefore, we have concluded that the visual impact of the proposed wind farm on each of these house site allotments, when coupled with possible noise and some shadow flicker impacts, is unacceptable. As a consequence, the allotment with house site B121a is to be acquired by the proponent or turbine BAN_24 is to be removed. Similarly, the allotment with the house site B122a is to be acquired or turbine BAN_29 is to be removed.

451 We have also concluded that the unacceptability of the impacts on this property would be exacerbated, to a minor extent, if aviation hazard warning lighting were to be required in the future.

452 We turn, now, to the two existing dwellings on the Montgomery landholding, B7 and B17. Mr Wyatt produced a photomontage based on a location between these two dwellings and looking to the east toward the wind farm. He rated the visual impact as being moderate but, with screening, as being low and acceptable. In order to understand the conclusions we have reached with respect to these dwellings, it is also appropriate to reproduce the relevant photomontage:

453 The photomontage shows the existing landscape and represents the position that we saw during the course of the site inspections. Even with vegetation screening some elements of the turbines, the turbines will dominate the outlook to the east from these dwellings.

[<img src="/lecjudgments/2010nswlec.nsf/files/After_453.JPG/$file/After_453.JPG" alt="After 453">]

454 There is, however, a critical omission from the presentation of this outlook with the turbines inserted. That omission, through no fault of Mr Wyatt, arises as a consequence of the time of the year when he took his photographs. It is the fact that virtually all of the trees that provide the present screening, to the extent that screening is in fact provided, are deciduous. Although, in an earlier assessment relating to the Ryman property, we concluded that a view to the turbines was acceptable in that instance, even when the deciduous trees there providing screening would be without leaves during winter, we do not consider that this is the case for these dwellings. In this instance, unlike the position for Mr Ryman (who would have a small group of turbines to the east with others to the north and south being obliquely viewed at some distance), there is a significant number of turbines in an immediate arc in the easterly aspect of these two dwellings.

455 We do not consider that we should undertake separate assessments of the impacts on each of these dwellings as we consider that their outlooks are sufficiently similar that the modest distance separating them would not cause any difference in our conclusions. We note, however, that during the course of our site inspections, we visited the curtilage of one of these dwellings but not the other.

456 The turbines that will be able to be viewed from these two dwellings will be an arc of turbines commencing with BAN_18 and running through to BAN_24 with some minor elements of BAN_25 to BAN_29 possibly visible but not to an extent warranting separate consideration. The arc of turbines from BAN_18 to BAN_24 will be at distances of 1.4 km to 1.6 km from these dwellings. There will be no shadow flicker impact on either dwelling but there will be minor noise non-compliances possible at both dwellings depending on the turbine selection. Although there will be a sweep of turbines in the arc earlier described, the distances of these turbines to these dwellings, even in winter when the deciduous trees will have lost their leaves, is such that we do not consider that the visual impact is such as to warrant modification of the proposal let alone refusal of it.

457 We have also concluded that the unacceptability of the impacts on this property would be exacerbated, to a minor extent, if aviation hazard warning lighting were to be required in the future.

458 We do note that, if the proponent elects to delete turbines rather than to acquire the three allotments in this vicinity that are on the acquisition schedule, there will be an improvement in outlook from these two dwellings.

Werrin

459 Mr Werrin gave evidence (at the Daniel Hewitt property) concerning two existing dwellings on his landholding and on its subdivision potential. The question of subdivision potential is dealt with separately, later. The two existing dwellings can, from Mr Werrin’s evidence, conveniently be described as the old dwelling (B41) and the new dwelling (B124). We accept Mr Werrin’s uncontradicted evidence that, as we understood it, both the old house and the new house have northerly aspects – although we did not, for reasons of time constraints, have the opportunity of inspecting these dwellings.

460 An examination of the topographic map reveals that it is likely that the old dwelling, that is the more westerly of the two dwellings, will be at least somewhat shielded from viewing the closest turbines (BAN_29 and BAN_30). The old house will, however, be able to view a number of the turbines in the second sector, a group comprising BAN_09 to BAN_12, in a northerly direction. The closest turbines to the north-east of the old dwelling would be some 2.6 km away while those to the north would be over 4.5 km away.

461 Mr Wyatt assessed the visual impact on the old dwelling as being low. He did so by application of the methodology earlier described. Although we have not accepted his conclusions in each instance, we are satisfied that the combination of distance, primarily, and secondly, the general linear arrangement of the turbines, renders the impact on this dwelling acceptable. There are no shadow flicker influences and the predictive noise map makes it clear that there is no noise non-compliance for this dwelling.

462 The position with respect to Mr Werrin's new house is somewhat (but only marginally) different. The visual impact from the turbines to the north is the same, effectively, as it is for the old house. The new house is slightly higher and slightly closer to the turbines in the southern section of the Banister group. At least part of one or more further turbines may be able to be seen from the new house. These would be BAN_24. If BAN_24 is able to be seen, BAN_23 and BAN_22, in line of sight behind it, might also be able to be glimpsed. BAN_29 is approximately 1.9 km from the new house. BAN_24 will be over 2.1 km from the new house. There is no shadow flicker impact and the predictive noise map makes it clear that there is no noise non-compliance.

463 As a consequence, we do not consider that there is any basis upon which we could contemplate requiring that Mr Werrin be included in the acquisition regime for either of his dwellings.

464 We have also considered whether or not the conclusion that we reached with respect to either dwelling would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that the distance from and limited numbers of turbines visible from either dwelling, there would be no additional visual impact of any significance.

Daniel Hewitt

465 Mr Daniel Hewitt has an allotment with a dwelling entitlement but not a development consent for any dwelling. The nearest marked dwelling site is B121a some 200 m to the west of Mr Hewitt’s boundary. There are 7 turbines within 1 km of the boundary, a further 6 within 1.0-1.5 km and another 2 between 1.5 and 2.0 km. The closest turbine is about 400 m from the eastern boundary of this small allotment. Mr Wyatt’s evidence was that, given the topography does not provide any opportunity for sheltering of the visual impact and the proximity of the turbines, the visual impact on this property should be regarded as high. In oral evidence given in Court, Dr Slack estimated that this property would experience more than 31 hours of shadow flicker per annum. This allotment falls within the 35dB to 40dB noise contour and, as a consequence, given that we understand that there should be a confidence margin in the noise modelling, we cannot be certain there will not be an unacceptable noise impact on this property.

466 As a consequence, we consider that the impacts of turbines BAN_22, BAN_23 and BAN_24 on this allotment are unacceptable.

467 We understand that the proponent accepts that it is appropriate that this allotment be included in the acquisition schedule. However, to be consistent with the approach later discussed concerning land acquisitions, the proponent should be put in a similar position with respect to this allotment – that is of being offered turbine removal as an optional alternative to acquisition – as part of the overall strategic assessment options arising out of the decision. As a consequence, if the proponent does not elect to acquire this property, turbines BAN_22, BAN_23 and BAN_24 are to be deleted from the wind farm.

468 We have also concluded that the unacceptability of the impacts on this property would be exacerbated if aviation hazard warning lighting were to be required in the future.

Toole

469 Mrs Toole is a self-funded retiree and owner of a 98 ha allotment. Her house is identified as B24. We did not inspect the view from the house but drove past it. Mrs Toole gave oral evidence at the Daniel Hewitt property. She stated her concerns about the negative impact the turbines would have on the value of her property and on the rural setting of the district.

470 Mrs Toole stated that she has the potential to sub-divide her property and that the site has an entitlement of at least 2 dwellings. Mrs Toole’s house is approximately 1.4 km from the nearest turbine, BAN_30, the most southerly of the Banister group.

471 There will be no shadow flicker impact and no adverse noise impact on the house and, assuming that she is correct that she has a present entitlement to a second dwelling, sites for it are available that would be at or beyond a 2 km radius from BAN_30. There would be no noise or shadow flicker impact on any second dwelling site on this landholding (assuming that there is such an entitlement).

472 It is likely that part of BAN_29 and part of BAN_30 would be able to be viewed from the existing dwelling. BAN_28, immediately behind BAN_30, will be able to be seen but will be less perceptible. There is a degree of topographic screening from an intervening knoll that will mean that it is unlikely that the whole of these turbines will be able to be viewed. That which is likely to be most visible will be BAN_29 at a distance of almost 2 km from the existing house.

473 Taking all its factors into account, we are satisfied that the overall impacts on this existing dwelling would not warrant modification of the proposal let alone its refusal. Given that any second dwelling on this landholding, if there be such an entitlement, could reasonably be located so that the impact of the wind farm on such second dwelling would be less than the impacts on the existing dwelling, there is no basis upon which any such second dwelling entitlement could provide any basis for modification of the proposal let alone its refusal.

474 We have also considered whether or not the conclusion that we reached with respect to this landholding would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that, at the distance that the turbines that impact on this property are proposed to be located, there would be no additional visual impact of any significance.

The Kings’ landholding

Introduction

475 As earlier noted, Mr and Mrs King have appealed against the Minister’s decision to approve the Gullen Range wind farm and have brought their own action in Matter No: 10517 of 2009. The orders they are seeking are:

1. That so much of the project approval as grants conditional approval to turbines POM_12 to POM_20 be refused.

2 Alternatively, that project approval for the project be refused.

Similar to that of the Guardians, their appeal is based on the following grounds:

• Inadequate provision for noise impacts
• Unacceptable visual impacts
• Inadequate provision for blade flicker
• Inadequate provision for land acquisition or compensation
• Inadequate restriction on any land compulsorily acquired
  
  

476 The Kings have approval for a 20-lot sub-division with dwelling entitlements for 17 of the allotments. These are in addition to the three existing dwellings on the property identified as PW26, PW27 and PW22. These dwellings are more than 3 km away from the nearest turbines and the Kings’ house is well screened by established trees. The King subdivision is located to the west and south-west of the Pomeroy group of turbines.

477 The marked air photo of the King subdivision shows the approved allotments and the approved building sites upon the allotments that are to the east of the creek line. The allotments to the east of the creek line are quite heavily vegetated and the allotments to the west and south-west are open and lightly timbered. The proposed house sites on Lots 4 to 13 are variously within a 2 km radius of turbines POM_08 to POM_23. House sites 6, 7, 8, 9,and 10 are within a 1 km radius. However, the turbines in contention are POM_12 to POM_20.

478 We visited the designated house sites 6, 7 and 8, deemed to be the most affected by the wind farm. Access to the sites required 4 wheel drive vehicles and there were no formal tracks on some allotments. The proposed house sites on these allotments are located to take advantage of views across the range to the east. The eastern boundaries of Lots 8 and 9 fall away steeply and the house sites are located on relatively flat ground at the highest points of the allotments. The proposed location for POM_19 is within 50 m of the northern boundary of Lot 9 and the southern boundary of Lot 8. POM_20 to POM_23 are located on the top of a cleared spur located across the valley from Lot 9 and running in a south-easterly direction. POM_12 and POM_13 are close to the proposed house sites on Lots 6, 7 and 8.

479 In the Minister’s approval of the project, conditions 2.23 to 2.27 relate to acquisition of a portion of the Kings’ land. In essence, the conditions state that if the proponent plans to go ahead with any or all of 7 turbines POM_12 to POM_16, POM_19 and POM_20, the owners of Lots 5 to 12 are to be notified. Within one year of this notification, any of the owners of those allotments can request the proponent to acquire the whole or part of their property. A timeline and process are set for the valuation and acquisition.

480 The reasons given, in the Director-General’s assessment report provided to the Minister, for imposing the acquisition conditions for Lots 5 to 12, are set out later in our discussion of the structure of the acquisition condition imposed by the Minister.

481 The Kings oppose the Minister’s conditions as they contend that there is no time limit imposed on the proponent to proceed with the nominated turbines and the conditions imply that the subdivision will have to be ‘created’ before any notification. Similarly, the implication is, they say, that they will need to make a significant investment to develop the allotments before a decision may be made to acquire the land. In their view, this would be wasted expenditure and potentially increase the amount of compensation payable by the proponent. They argue that there is too much uncertainty in the drafting of the conditions of consent and that their preferred position is to for the turbines to be removed rather than their land acquired.

482 They are also concerned that, should the lots be acquired under the current conditions of consent, it may leave the way open for development ‘creep’ by providing the proponent with an opportunity to use the land for turbines. To that end, the Kings proposed an additional condition that would require the proponent to retain the acquired land, for the life of the wind farm, as a buffer zone upon which no turbine or electrical or other wind farm infrastructure could be erected.

483 In final submissions for the Kings, Mr Masten noted that no acoustic assessment was carried out for the Kings’ subdivision as part of the EA. He submitted that for the 8 worst affected allotments, Lots 5 to 12, the separation distance from the turbines is inadequate. The only assessment on the proposed house sites was an estimate of predicted noise levels prepared by Dr Tonin based on the noise contours derived from the MDA report in the EA and the locations of the proposed dwellings provided by the Kings.

484 Dr Tonin prepared a report using the contours in one of the MDA noise marked air photos and, adopting the background level at the nearest dwelling, PW9, as being the only possibly appropriate and available background noise data. He provided a compliance table showing varying wind speeds for each of the house sites on the Kings’ subdivision. Dr Tonin stated that he considers the noise levels in the MDA report have been under-predicted, but if they are used, the noise limits will be exceeded at the proposed house sites on Lots 6, 7 and 8 by up to 6.5dB. The table of results of those calculations revealed that the house sites on Lots 6, 7 and 8 would be non-compliant, for the turbine whose contours were analysed, at the wind speeds in the table below:

485 This table, of course, does not reflect the slightly more non-compliant position revealed by the table of compliance data tendered by the Guardians concerning the V90 3MW turbine.

486 In Dr Tonin’s opinion, condition 2.5 should be modified to include a re-assessment of noise affecting the Kings’ subdivision.

487 Given the conclusions, set out in the following analyses, that we have reached, overall, concerning the allotments from the Kings’ subdivision that should be included in the acquisition schedule, we are satisfied that it is not necessary to require some further noise assessment of the Kings’ property. We have reached this conclusion because three of the five allotments we have concluded should be on the acquisition schedule, Lots 6, 7 and 8, are in the schedule because of the overwhelming visual impact of the nearby turbines and the very significant level of shadow flicker impact on their house sites.

488 The noise impacts found by Dr Tonin for the house sites on these three allotments, although adding weight to the requirement for acquisition, would not, in our view, be necessary for requiring such a position – given the nature of the other two elements impacting on these house sites.

489 In addition to the conclusion in his report, our examination of the noise contour information in the MDA report leads us to the conclusion that the building envelopes on Lots 9 and 10 may possibly be subject to non-compliant noise impacts but that the building envelopes on Lots 5, 11 and 12 would not be so impacted.

490 We have also endeavoured, subject to the limitations earlier discussed concerning the marked air photos showing shadow flicker impacts, to assess what might be the shadow flicker impacts on the allotments in the Kings’ subdivision. In this context, we note that Dr Slack was asked to assess shadow flicker impacts on a number of allotments with dwelling entitlements (as discussed on pages 5 and 6 of his statement) but was not asked, apparently, to make any assessment of shadow flicker impacts on any of the Kings’ subdivision allotments. As a consequence, we have drawn the following conclusions about shadow flicker impact – subject to the data limitations and adjustments earlier discussed. The expected shadow flicker impacts and the turbines causing them are set out below:

491 Mr Masten contends that the cumulative impacts of noise, visual impact, shadow flicker and possible night lighting of the turbines plus the intrusion of overhead transmission lines, on Lots 5 to 12 is unacceptable and there should be outright refusal of the 7 turbines in question. He submitted that should these turbines be refused, the Kings’ proposed landscape and noise mitigation conditions are still relevant and should be adopted as they affect the whole of the subdivision.

492 Should we approve the 7 turbines in question, the Kings’ have two alternative positions. There first alternative is their condition 2.1 which states:

The seven turbines shall not be erected, installed or operated unless the Kings agree in writing not to carry out that part of the King subdivision approval on the King subdivision land and have actually received within three (3) years of the date of the project approval compensation in a sum acceptable to them to compensate them for the diminution in value of the King subdivision land and the remainder of their property as a consequence of the Project Approval.

493 The Kings’ second alternative, alternative condition 3.1 is a more detailed acquisition option. The Guardians have adopted the same alternative conditions of consent for their members.

494 The proponent opposes the condition of consent imposed by the Minister relating to the acquisition of Lots 5 to 12 of the King subdivision. The amendment they seek is that Condition of Consent 2.24 be modified to only require acquisition of Lots 6, 7 and 8 of the King subdivision. According to Mr Pickles, the basis for this amendment was the evidence given by Dr Tonin and Dr Slack, the practical outcome of which is the required acquisition of more land than could be said to be adversely affected enough to warrant acquisition. The proponent accepts that the combined impacts of noise, shadow flicker and visual intrusion on Lots 6, 7 and 8 are such that they should be acquired by the proponent if turbines POM_12-16 and POM_19-20 are constructed.

495 Mr Pickles rejects the alternative conditions proposed by the Kings with respect to the terms of the acquisition and seeks that the appropriate means for acquisition is that specified in the Minister’s conditions.

496 Mr Clay supported the Minister’s conditions and not the conditions proposed by the Kings. He also contends that any condition for the proposed buffer zone should not be imposed. Mr Clay submitted that any subsequent application for modification of the approval would be dealt with on its merits having regard to the relevant environmental impact assessments.

Lots 6, 7 and 8

497 There is no dispute that the accumulation of visual, noise and shadow flicker impacts on Lots 6, 7 and 8 of the Kings’ subdivision will be such that, if turbines POM_12 to POM_16, POM_19 and POM_20 are constructed, all of these allotments should be acquired by the proponent. They have been included in the acquisition schedule on this basis.

Lot 9

498 Mr Wyatt’s statement included these comments concerning the Kings subdivision:

The King's plan to subdivide their property to create 20 allotments. These allotments have recently had planning approval and five allotments (6, 7, 8, 9 and 10) abut the eastern boundary of the wind farm. These allotments are all in excess of 40 ha in area. No site plan, house design or construction has occurred at present. Wind turbines are proposed close to the eastern boundary of these allotments.

Whilst landscaping is a mitigation option for residential properties it is unlikely that it can be effective where dwellings may be located within several hundred metres.

I understand that these allotments are subject to a Condition of Consent for acquisition by the proponent.

499 In his oral evidence, he agreed that POM_19 was the particularly visually impacting turbine on the house site on Lot 9.

500 It is clear from the two topographic map extracts (reproduced below without the subdivision pattern [a clearer version] and with the relevant portions of the Kings’ subdivision) that there is a gentle spur line running down from POM_ 19 to the house site on Lot 9. The several available air photos show that this spur line is comparatively lightly vegetated.

501 In addition, this turbine would be only some 600 m from the house site and its base would be 20 m above the house site. POM_ 21 will be virtually due east of the house site on Lot 9, some 900 m from the house site and, because it is across a deep re-entrant and located on cleared land only some 50 m lower (at its footing) than the house site, will be significantly in view from the house site on Lot 9. POM_ 20 will be at a similar relative height, slightly shorter distance (~ 800 m) and similar aspect from the house site on Lot 9 but to the north-east of that house site.

502 We also reproduce below an extract from an air photo that shows the nature of the existing vegetation in the vicinity of the house sites on Lots 9 and 10 in the Kings’ subdivision. The reproduced air photo extract, also showing the allotment boundaries and 2 km radii from various turbines, covers generally the same area as the earlier topographic map extract. Although of lesser quality because of the need for this extract to be blown up, this air photo extract provides visual assistance in understanding, when examined in conjunction with the extract from the topographic map, the conclusions we have reached concerning these two house sites.

[<img src="/lecjudgments/2010nswlec.nsf/files/First_after_para_502.JPG/$file/First_after_para_502.JPG" alt="1st after 502">]

[<img src="/lecjudgments/2010nswlec.nsf/files/Second_after_para_502.JPG/$file/Second_after_para_502.JPG" alt="2nd after 502">]

503 In his oral evidence, Dr Slack conceded that shadow flicker from POM_19 or POM_20 would possibly impact the house site on Lot 10. Given the relative location of the house site on Lot 9 compared to that on Lot 10, the conclusion that we have set out above from our understanding of the shadow flicker marked air photos causes us to conclude that our view there set out is accurate.

[<img src="/lecjudgments/2010nswlec.nsf/files/After_503.JPG/$file/After_503.JPG" alt="After 503">]

504 Although it would be reasonable to expect, for reasons of outlook, that the orientation of a dwelling erected at the house site on Lot 9 would be significantly towards the south and thus away from POM_19, nonetheless the comparatively short distance from this turbine to the house site; the height difference between the base of the turbine and the house site; coupled with the sparse existing intervening vegetation means, in our view, that this turbine will significantly dominate the rear of any such dwelling and would, except for persons in very close proximity to the dwelling on its southern side, also dominate any person approaching the dwelling from a generally southerly direction or simply being in the vicinity of the house and facing in a generally northerly direction. In addition, because of the slight height differential (with the turbine footings being ~ 50 m lower than the house site), the two turbines to the north-east and east will have these turbine nacelles and the movement of their blades significantly intruding into the outlook from this house site.

505 Further, in our view, there is no realistic prospect of landscaping ever being able to provide any satisfactory screening of the impact of POM_19 on this house site and, although there is some possibility that landscape screening planted to the east and north-east of this house site could, in time, provide a visual screen to the turbines to the east and north-east as well as ameliorating or eliminating shadow flicker impact on this house site from those turbines, the time period that would be necessary for the establishment of such screening to grow to a sufficient height and density would be too long, in our assessment, to constitute a reasonable response to those impacts.

506 We have therefore concluded that, on the basis of the highly significant adverse visual impacts of these three turbines on this house site, Lot 9 should be acquired or turbines POM_19, POM_20 and POM_21 removed. In reaching this conclusion, we have done so on the basis solely of the overwhelmingly unacceptable visual impact on this house site. The fact that the shadow flicker marked aerial photograph also show that there is an adverse shadow flicker impact on this house site merely reinforces our conclusion that the impacts on this house site are unacceptable.

507 With respect to Lot 9, we have concluded that Lot 9 should be included in the acquisition schedule because of what we consider to be the very high visual impact that is incapable of any reasonable landscaping amelioration coupled with the shadow flicker impact. However, in our view, as earlier noted, the visual impact on this house site is such that, in itself, inclusion in the acquisition schedule is warranted on this basis alone. The shadow flicker impact merely adds reinforcement to this position. Any noise non-compliance that might be revealed by further testing (and we do not speculate as to whether this could possibly be the case) would merely add further weight to the position that we head independently reached for the Lot 9 house site for the other reasons that we have earlier dealt with in detail.

508 We have concluded that the unacceptability of the impact on this property would be exacerbated, to a minor extent only, if aviation hazard warning lighting were to be required in the future.

Lot 10

509 The designated dwelling site on Lot 10 is to the south-west of POM_19. It is at approximately the same distance as is the case for the designated dwelling site on Lot 9. However, the relative heights differ and this dwelling site appears to be at least some 15 m lower than that on Lot 9. The extent of the intervening vegetation (or lack thereof) is similar to the position of the Lot 9 dwelling site. As a consequence, POM_19 will dominate this dwelling site to a greater extent than that of the dwelling site on Lot 9.

510 Dr Slack, as earlier noted, thought that there was some possibility of shadow flicker impact on this dwelling site. As well as being approximately 150 m further removed from POM_20 and POM_21 than the dwelling site on Lot 9, the Lot 10 dwelling site so will also have significant visual exposure to these two turbines despite being 15 m lower than that on Lot 9. There is, on Dr Tonin’s calculations, no noise non-compliance for this dwelling site.

511 Any dwelling constructed on this site would also be expected to have its primary orientation towards the south. The same conclusion is appropriate to be drawn about the visual impact of POM_19 and the impossibility of landscaping providing appropriate shielding – indeed, this impact will be greater than for Lot 9 and even less possible to shield given the relative heights of the turbine and the dwelling site. In addition, although there is a modest additional distance between this dwelling site and POM_20 and POM_21, the visual impact of these turbines merely confirms the unacceptability of the visual impact on this dwelling site.

512 We are satisfied that the visual impact is sufficiently unsatisfactory and incapable of rectification that Lot 10 should be acquired unless POM_19, POM_20 and POM_21 are deleted. The limited but nonetheless likelihood of shadow flicker impact on this dwelling site, provides a modest additional factor contributing to unacceptability of impacts on this dwelling site.

513 A similar position arises with respect to any results that might be derived for the house site on Lot 10 if noise testing of the Kings’ subdivision house sites were to be undertaken – that is that if there were to be noise non-compliances revealed for the Lot 10 house site (again a matter about which we do not speculate) that position would merely reinforce the conclusion that we have reached concerning this house site because of the visual and shadow flicker impact on it.

514 We have concluded that the unacceptability of the impact on this property would be exacerbated, to a minor extent only, if aviation hazard warning lighting were to be required in the future.

Lot 11

515 The designated dwelling site on Lot 11 is also to the south-west of POM_19. It is at approximately 1.1 km from POM_19 – about 500m further than the designated dwelling site on Lot 9. However, the relative heights differ and this dwelling site appears to be at least some 35 m lower than that on Lot 9. The extent of the intervening vegetation (or lack thereof) appears to be marginally better the position of the Lot 9 dwelling site due to what the air photo shows as a modest strip of vegetation between this dwelling site and the dwelling site on Lot 10. Despite any effect of this modest vegetative screening, because of the relative height differentials and what will be the necessary setback from this vegetation for bushfire asset protection zone reasons, POM_19 will dominate this dwelling site to at least the same extent as the dwelling site on Lot 9 (if not more so – a position we are not able to assess as we did not visit this dwelling site).

516 Dr Slack did not think that there was any possibility of shadow flicker impact on this dwelling site. We see nothing on the shadow flicker marked air photo that could cause us to question this assessment. There is, on Dr Tonin’s calculations, no noise non-compliance for this dwelling site.

517 This dwelling site is approximately 200 m further removed from POM_20 and POM_21 and at least some 35 m lower than that on Lot 9. However, the Lot 11 dwelling site so will also have significant visual exposure to the upper elements of these two turbines.

518 Any dwelling constructed on this site would also be expected to have its primary orientation towards the south (or possibly to the south-east). The same conclusion is appropriate to be drawn about the visual impact of POM_19 and the impossibility of landscaping providing appropriate shielding – indeed, as with Lot 10, this impact will be greater than for Lot 9 and even less possible to shield given the relative heights of the turbine and the dwelling site. The differences in height offset any benefit that might arise from the degree of separation. In addition, although there is additional distance between this dwelling site and POM_20 and POM_21, the visual impact of these turbines merely confirms the unacceptability of the visual impact on this dwelling site.

519 We are satisfied, on balance, that the visual impact (although this is a modestly lesser impact – as best we are able to assess it – than either of the dwelling site impacts on Lots 9 or 10) is sufficiently unsatisfactory and incapable of rectification that Lot 11 should be acquired unless POM_19, POM_20 and POM_21 are deleted.

520 A similar position also arises with respect to any results that might be derived for the house site on Lot 11 if noise testing of the Kings’ subdivision house sites were to be undertaken – that is that if there were to be noise non-compliances revealed for the Lot 11 house site (as earlier, a matter about which we do not speculate) that position would merely reinforce the conclusion that we have reached concerning this house site because of the visual and shadow flicker impact on it.

521 We have concluded that the unacceptability of the impact on this property would be exacerbated, to a minor extent only, if aviation hazard warning lighting were to be required in the future.

Lots 5 and 12

522 We turn now to consider the impact on the designated dwelling sites on Lots 5 and 12. As can be seen from the map and air photo extracts, the dwelling site on Lot 5 has the closest turbine (that is POM_112) generally to the east and the dwelling site on Lot 12 has the closest turbine (that is POM_19) generally to the north-east. There is significant intervening vegetation between each of these house sites and the nearest turbine. Because of these factors, we consider it unlikely that any significant parts (if any part at all) of any turbine will be visible at either of these dwelling sites.

523 In each instance, the dwelling site is some 1.2 km from the nearest turbine and, on Dr Tonin’s calculations, there is no noise non-compliance for either dwelling site.

524 Dr Slack did not consider that it was likely that there would be shadow flicker impact on either of these dwelling sites. Whilst we have some reservations about this conclusion from our interpretation of the shadow flicker marked aerial photograph, as we have observed above in our interpretive table drawn from the relevant air photo, if there is a theoretical shadow flicker impact on this dwelling site, we are satisfied that because of the intervening topography and vegetation, such impact is likely to be minimal. We do not consider that the impact on either of these dwelling sites warrant requiring the proponent to acquire these allotments. However, as discussed later in the general discussion of the present landscaping condition, we consider that, if any part of any turbines is visible from the dwelling sites on either of these allotments, they should be entitled to the benefit of the landscaping condition.

525 We have also considered whether or not the conclusion that we reached with respect to these dwelling sites would be different if there were the requirement for any aviation hazard warning that lighting to be installed on any of the turbines. We have concluded that, because of the intervening topography and vegetation, there would be no additional visual impact of any significance.

General comments concerning the Kings’ subdivision

526 We have also concluded that the unacceptability of the impacts on Lots 6 to 11 would be exacerbated, to a minor extent only, if aviation hazard warning lighting were to be required in the future.

527 As we have concluded that the number of properties that are required to be acquired by the proponent or the relevant affecting turbines deleted from the proposed wind farm is significantly greater than that which was envisaged either at the commencement of the proceedings or having regard to the evidence as it unfolded during the course of proceedings, for example, concerning the Daniel Hewitt landholding, we have structured the acquisition regime, as separately discussed, on a basis that leaves the mix of property acquisition and turbine deletion in the hands of the proponent (given the absence of any evidence concerning project viability impacts of turbine deletion).

528 There is no basis, in our view, upon which we could would consider the impacts on the allotments in the Kings’ subdivision on any basis that differed from that which we have applied in other instances where acquisition has been found to be warranted. As a consequence, the allotments within the Kings’ subdivision that are to be the subject of acquisition or turbine removal have been incorporated in the acquisition table on the same basis as all the other properties assessed as requiring acquisition.

Proposal for acquired land to be a buffer

529 The Kings also seek that we require a condition imposing restrictions on what the proponent might do on any of the elements of the Kings’ landholding that the proponent might acquire. This arises, particularly, in the context of discussions that took place, during the course of the site inspection, about whether or not the proponent might wish to seek some relocation of turbines POM_12 or POM_13 if Lots 6, 7 and 8 of the Kings subdivision were to be acquired and the proponent considered that moving these turbines some distance on the land so acquired would be beneficial for the project.

530 The position advanced by the Kings is that it would be reasonable to require the retention of any of their allotments that were acquired by the proponent – to be without wind farm infrastructure being constructed on them – so they would act as a buffer zone to the remainder of their subdivision allotments.

531 The condition proposed on behalf of the Kings is in the following terms:

If the King subdivision land or any part of it is acquired by the proponent under or pursuant to or as a consequence of these conditions, it must be retained by the proponent during the lifetime of the windfarm the subject of this Approval as a buffer zone to protect each and every part of the remainder of the whole of the King land from the impacts of that windfarm and, in particular, the proponent and/or its successors in title to the King subdivision land or any part of it will not cause, permit or allow to be erected, installed or operated upon it any turbines or other infrastructure for the purposes of or related to a windfarm development or otherwise for purposes of or related to the generation or supply or intended generation or supply of electricity.

532 The proponent and the Minister resist the imposition of such a restriction on use of any of the Kings’ land that might be acquired by the proponent. Their common position is that any proposal to modify the consent to permit the location of windfarm elements on any land acquired from the Kings should appropriately be dealt with by modification application subject to an appropriate assessment process.

533 We are satisfied that the position advanced by the proponent and the Minister is to be preferred to that advanced for the Kings. We have reached this conclusion for the following reasons. First there is, in our view, a sufficient public policy interest in the efficient utilisation of renewable energy sources that impediments of the nature sought by the Kings are inappropriate. However, of far greater importance, is the fact that such a restriction would stand in the way of even the most minor alteration to the wind farm even if its use of acquired King land was absolutely inconsequential. The most efficient method of concrete placement for the foundation pad of POM_19, for example, might require the construction of an access track over that part of the Kings landholding that is on the acquisition schedule. We consider that it would be far too restrictive to accede to the Kings’ proposal – a proposal that has the potential to cause obstruction to elements of the wind farm even when there are no possible impact concerns. We conclude, therefore, that this proposed restriction should be rejected.

Restriction on use of acquired land

534 The Kings also seek a condition requiring a restrictive covenant to be placed on any of their land that might be acquired by the proponent restricting the use of such land for any form of intensive livestock production. The condition that they seek is in the following terms:

A restrictive covenant burdening each and every part of the King subdivision land in favour of each and every part of the land retained by the Kings or their successors shall be placed on any land acquired prohibiting such land being used for intensive purposes such as feedlots, piggeries and poultry sheds or other uses which are either more intensive than the present use or which would detrimentally affect the existing rural ambience.

535 If such uses are permitted by the present Local Environmental Plan (and/or will be permitted by the new Local Environmental Plan to be prepared pursuant to the state-wide template) on any land acquired by the proponent from the Kings, we see no merit basis for imposing such a condition.

536 In addition, if such development is or would be permissible and the proponent or any successor in title to the proponent of any land acquired from the Kings wished to undertake such an activity, such activity would, in the ordinary course of events, require a development application that would have to go through the ordinary assessment process – a process that would provide the opportunity for objections if there were proper bases for such objections.

537 We see no reason why, absent any indication that the proponent or any successor in title might contemplate such an activity that we should impose such a speculative condition even if we had power to do so.

538 However, in addition to these views, we also do not believe that such a condition would satisfy either the first or the third of the Newbury tests (cf Newbury District Council v Secretary of State for the Environment [1981] AC 578; [1980] 1 All ER 731) and therefore could not, in any event, be imposed.

Cumulative impact on the northern sector

539 With respect to the totality of impacts on individual properties in the northern sector, we have also considered whether these impacts, considered cumulatively over the totality of these properties (rather than on a property by property basis) should warrant us drawing any differing conclusion – either with respect to the overall project or with respect to any individual turbines. We have concluded that the totality of these impacts leads to the conclusion that nothing concerning this sector, collectively, warrants alteration of the project let alone its refusal.

Cumulative impact on all individual landholdings

540 With respect to the totality of impacts on all individual properties in both sectors, we have also considered whether these impacts, considered cumulatively over the totality of these properties (rather than on a property by property basis) should warrant us drawing any differing conclusion – either with respect to the overall project or with respect to any individual turbines. We have concluded that the totality of these impacts leads to the conclusion that nothing, in total, warrants alteration of the project let alone its refusal.

Landscaping conditions

541 The landscaping condition contained in clause 2.2 of the Minister's conditions requires that landscaping be provided to all non-associated residential dwellings, if so requested, that are within a 3 km radius of a turbine and where it is possible to view a turbine from that residence. The condition is structured so that a request must be made by the owner of the dwelling within six months from the commencement of operation of the wind farm.

542 The conditions proposed by the Kings envisage a different landscaping regime and one which is more closely attuned to condition 31 imposed by Preston CJ in Taralga following his discussion of general landscaping implementation matters at paras 284 to 289 in that decision.

543 As a general proposition, as a matter of comity, we consider that the structure of the landscaping condition here, including the various time elements in the condition, should reflect the structure of the condition in Taralga (but with the 3 km radius envisaged in these proceedings as opposed to the 2 km radius in Taralga).

544 Whilst a condition so structured will not be precisely identical with that which is proposed by the Kings (and adopted by the Guardians for broader application in these proceedings), nonetheless we are satisfied that the approach identified by His Honour in Taralga is the appropriate one for adoption here.

545 The second significant matter identified by the Kings in their proposed landscaping conditions (and also adopted by the Guardians for broader application) is the proposal that the landscaping entitlement should not merely apply to existing dwelling houses but should also apply where a dwelling house is designated to be located. The effect of this would be to include in the landscaping entitlement regime all relevant designated dwelling sites on the Kings landholding; all relevant designated dwelling sites on the Christie landholding (unless, as appears possible from the topographic maps, the designated dwelling site on Christie Lot 11 is outside the relevant 3 km radius – in which case the designated dwelling site on Lot 11 will be excluded from the benefit of the landscaping condition); and both relevant designated dwelling sites on the Montgomery landholding.

546 In Taralga, Preston CJ dealt with several circumstances where he considered, as a matter of discretion, variation of the landscaping regime was appropriate so that an entitlement to landscaping would arise even though it would not otherwise have been triggered by the qualifying distance element of the condition. One of those, a property known as St Ives (on the outskirts of Taralga village), is not relevant in these proceedings. However, the other, the Cushendall Vineyard, was discussed by His Honour, in para 190, where he dealt with the particular circumstances and determined that a combination of the intensive nature of the vineyard development together with the clear present intention of its owners to erect a dwelling warranted that future dwelling having such a landscaping entitlement.

547 We also note that there were no subdivisions with designated dwelling sites that His Honour was required to consider in Taralga.

548 In this instance, the fact that there are designated dwelling sites on a number of subdivision allotments where those subdivisions had been approved prior to be Minister’s consent being granted leads us to the conclusion that it would be appropriate to extend the landscaping condition to those allotments where there is a dwelling entitlement and there is a designated quelling site. For the Dennis Hewitt allotments where there may be a dwelling entitlement, there does not appear to be any basis upon which, as a matter of discretion, we would extend such an entitlement to them. We also would not, as a matter of discretion, extend this entitlement to Mr Hogan's additional dwelling entitlement.

549 However, even if turbines were removed and, the Daniel Hewitt allotment would still be sufficiently impacted that we consider, as a matter of discretion, it should have the benefit of landscaping even though it would not fall within the determination above.

550 During the course of the hearing, we indicated our concern at the inadequacy of the guidance in the Minister’s conditions about the scope of the landscaping to be provided to parties taking advantage of this entitlement.

551 Given the reliance on landscaping for amelioration of the visual impacts of the turbines, the Minister’s conditions relating to landscaping are to be further amended with the addition of a further condition. This new provision is to be inserted into the revised conditions in the following terms:

The landscaping treatments shall include, but not be limited to, site preparation, stock and rabbit-proof fencing, selection and planting of appropriate species (to be jointly determined by the property owner and the proponent), watering, weed control and the replacement of failed plants. The proponent shall maintain the landscaping treatments, at their cost, for a period of 2 years. Access and notification arrangements are to be negotiated by the parties.

Relocation of turbines

552 Condition 1.5 of the Minister’s conditions of consent is in the following terms:

Pursuant to section 75J(4) of the Environmental Planning and Assessment Act 1979 the project is modified to remove the ability of the Proponent to relocate turbines from the locations indicated in the document referred to under condition 1.1 b) by up to 250 metres, without further assessment and approval in accordance with the requirements of the Environmental Planning and Assessment Act 1979.

553 In the proponent’s Amended Application in Matter No 10700 of 2009 (for which leave was granted to the proponent on 8 December 2009), the proponent sought deletion of this condition and insertion of a requirement that the modification process be that contained in s 75W of the Act. The original condition sought was that the proponent be permitted to relocate turbines etc up to 250 m without further assessment. This discretion would have been consistent with the approach approved by Preston CJ in Taralga where, at para 343, he said he was “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”.

554 The proponent now seeks that condition 1.5 “be modified to provide that any relocation of turbines is to be in accordance with the process set out in s75W of the EP&A Act”.

555 The Director-General’s assessment report dealt with this issue, at 2.2, in the following terms:

The Proponent has identified an indicative turbine layout (illustrated in Figure 3 and Figure 4), subject to final turbine selection. In order to adhere to noise level constraints set by the Department in the Director General's Requirements, the proponent has requested flexibility in the turbine layout allowing micro-siting of turbines within 250 metres of the indicative turbine layout. This flexibility was raised as a significant concern in a number of submissions on the project, particularly in the context of the potential for the Proponent to unilaterally shift turbines by up to 250 metres from the locations considered by stakeholders and presented in the Environmental Assessment. The Department supports concerns raised by submitters in this regard, and considers that this level of 'flexibility' detracts from the certainty and finality of any project approval that may be granted. As such, the Department has recommended that the Proponent be expressly prohibited from relocating wind turbines by 'up to 250 metres' in this manner. It should be noted that notwithstanding this prohibition, the Environmental Planning and Assessment Act 1979 permits the Proponent to make minor amendments to the project where such amendments would not be inconsistent with the approved project, or to seek the Minister's approval to modify the approval if the amendments are in fact deemed to be inconsistent. The Department considers that these existing provisions of the legislation are the appropriate means for dealing with any necessary shift in turbine locations, rather than the 'flexibility' mechanism suggested by the Proponent in the Environmental Assessment.

556 We understand that the practical effect of the present condition 1.5 is consistent with the Director-General’s position and also reflects what the proponent now seeks and it thus does not require alteration – therefore no change will be made.

Sealing of section of road

557 Condition 2.44 of the Minister’s conditions is in the following terms:

Prior to commencement of construction of the project, the proponent shall undertake sealing of the 1.8 km unsealed section of Range Road in conjunction with Upper Lachlan Shire Council. Plans to shoulder widening, including the geometric road design and pavement design, shall also be made in consultation with Upper Lachlan Shire Council.

558 In the proponent’s Amended Application, the proponent sought deletion of this condition. The basis given the proponent's particulars was:

It is unnecessary to undertake sealing of the 1.8 km unsealed section of Range Road, as this action has already been undertaken and completed by the Upper Lachlan Shire Council.

559 If that statement is correct (and this matter was not dealt with during the course of the site inspection nor was it subsequently mentioned, to the best of our recollection and notes, during the remainder of the proceedings), then the condition should be deleted.

560 On the other hand, if this section of Range Road has not been sealed, we consider the merits of the imposition of that condition as requested by the proponent.

561 A proposed condition seeking such a requirement appears on page 4 of the proposed conditions for approval forwarded by the council to the Department on 26 September 2008. No justification is given for the proposed inclusion of the condition in the council’s document. The letter from the Roads and Traffic Authority to the Department, dated 23 September 2008, makes no mention of the Roads and Traffic Authority seeking such a condition.

562 The proponent's Submissions Report, dated November 2008, includes, as appendix 1, a Revised Statement of Commitments proposed for the project. Commitment 60 is in the following terms:

Range Road

• Consideration will be given to the reconstruction and sealing of the 1.8 km length of unsealed pavement which would include the proposed junctions.
  
  

563 This consideration is proposed to take place by the proponent in consultation with the Roads and Traffic Authority.

564 The Director-General's assessment report makes no mention of this topic nor does the briefing note submitted to the Minister seeking her approval of the project and no note of the proposed condition is included in the Attachment to the ministerial briefing notes entitled Recommended Conditions of Approval.

565 The condition of consent then appears in the approval conditions in the terms set out earlier.

566 Nowhere in any of the material that we have read is there anything that provides any justification for this requirement on its merit. If a basis for removal of this condition is not factually well founded on the basis of redundancy, then complete absence of any justification on the merits also warrants its removal.

Landholdings with subdivision potential

567 There are a number of landholdings whose owners are represented by the Guardians where there is, or is said to be, the potential for subdivision into a number of rural smallholdings each of which would have a dwelling entitlement.

568 Mr Underwood submitted that we should have regard to the subdivision potential, whether on the basis of a hypothetical plan of subdivision, as is the case with the extensive landholding of Mr Denis Hewitt on the western side of the northern portion of the proposed wind farm, or more general hypothetical subdivision entitlements not based on an actual design, such as that for the Humphrey and Jennifer Price-Jones landholding at the centre of the eastern side of the northern portion of the proposed wind farm. These two landholdings, particularly the latter one, are merely cited as examples of what is said to be subdivision potential.

569 We have proceeded to consider this issue on the basis that such a subdivision potential does exist for all the landholdings for which the Guardians postulate such potential. Approaching the matter in this fashion enables consideration of this issue on the two possible bases requiring our attention. These two possible bases are whether, in the first instance, the effect of the cumulative removal of subdivision potential, in total, when balanced against the wind farm would warrant refusal of the wind farm on the basis that it would be contrary to the objective in the Act stated in section 5 of:

a) to encourage:

(ii) the promotion and co-ordination of the orderly and economic use and development of land,

570 Second, we must address the question of whether, in any or all individual instances, we should have regard to the impact of the proposed wind farm on the subdivision potential of an individual landholding on the basis of the likely impact of nearby turbines on possible dwelling sites on allotments that would be created by subdivision with a dwelling entitlement attached to them.

571 We turn, first, to the question of the orderly economic and social development of land. Whilst, usually, this aim of the Act is considered in the context of the economic aspect of the development of land, in this instance, social issues also arise to be considered.

572 The proponent's environmental assessment submitted to the Minister in support of the proposed wind farm deals with the economic benefits, generally, for the locality in the following terms:

Over the life of the wind farm, the project would inject in excess of $200 Million into the Australian economy and approximately $60-$90 Million into the local economy from the wind farm construction and operations.

It is estimated that the project would provide approximately 600 direct jobs locally in Australia. Depending on the local community this could translate to as many as 180 jobs created during the construction period and 15 ongoing jobs during the operational phase of the wind farm.

573 In addition, the proponent also proposed the establishment of a community enhancement program which, in the proponent's proposal, would receive $75,000 per year for the life of the wind farm and would be used for the provision of solar energy and other renewable energy projects for residences within 10 km of the wind farm with, depending on the take-up rate of such domestic projects, any annual surplus being applied to the council's community development fund. Whilst there is dispute between the proponent, on one hand, and the Minister and the council on the other concerning the annual amount to be applied for community benefiting purposes and some dispute as to the community benefiting purposes for which it is to be applied, there is no dispute that there should be this further additional economic benefits into the area, of at least $75,000 per annum, if the proposed wind farm is constructed.

574 On the other hand, members of the Guardians have said that subdivision of those landholdings that have this potential will attract additional economic activity by the recruitment of “tree-change” households into the local community. This, it is said, is already occurring to some extent and is reflected by the fact that a number of subdivisions of this nature creating what are essentially lifestyle allotments rather than viable rural landholdings have already been approved for properties such as the Christie or King landholdings.

575 The material provided by the proponents concerning the economic benefits of the project coupled with the social desirability of the encouragement of renewable energy, as discussed by Preston CJ in Taralga and, since that decision was given more than two years ago, the increasing volume of scientific evidence from bodies such as the International Panel on Climate Change, combine to provide a powerful degree of certainty about the benefits of this proposal, in particular, in its local context, on a smaller scale, but, also, on a broader societal front.

576 The countervailing propositions put on behalf of the Guardians concerning the benefits of not inhibiting subdivision and the in-flow of “tree-changers” to the district as leading to unquantified local benefits (local benefits we accept that will accrue in both a social and economic sense) do not outweigh, in our view, the benefits that will flow from the project.

577 As a consequence, we do not consider that the project fails to satisfy the objective of the Act set out earlier and there is, therefore, no basis of this nature to require modification to the proposal let alone its refusal.

578 Second, we turn to the question of development constraints caused by the proposed wind farm. Whilst there will, undoubtedly, be a comparatively small number of allotments potentially able to be created that will not be able to be created because the presence of the proposed wind farm would render it impossible to erect a dwelling upon them (as is the case with the allotments in the subdivision of the King landholding earlier discussed), this number, in our view is likely be confined to such potential subdivision allotments in close proximity to the boundary of the site of the proposed wind farm we have not and for reasons which are obvious from the following discussion, we need not, calculate any estimate of the number of such allotments.

579 We accept that there are, probably, depending on allotment layout, dwelling footprint location, house design and orientation and potential topographic and vegetation shielding, impacts from the proposed wind farm that will influence the extent to which there will be a reduction in value or difficulty in marketing such future subdivisions where dwellings are able to be permitted. We also accept that these matters will possibly limit the numerical allotment yield of some potential subdivisions.

580 Some time ago, we wrote, in Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 1389, about the role that floor space ratio plays in planning. We said:

27 The first flaw is the assumption, implicit in Ms Pearson’s and Mr Smith's evidence, that a development with something close to the maximum permissible floor space ratio should be able to be achieved for any site which incorporated 1 and 3 Nulla Nulla St. This misunderstands the role of prescribed floor space ratio controls. Floor space ratio controls provide both a limit and, for a developer, a target to which they may aspire in designing a development proposal but the floor space ratio most certainly does not comprise an entitlement or near entitlement on any site.

28 The second flaw links inextricably with the first. This flaw ignores the fact that any proposal for any site must be assessed having regard to the constraints on that site. Such constraints may arise from traffic patterns restricting driveway locations; significant trees that are required to be retained imposing development restrictions required by Australian Standard AS4970:2009 to protect root zones and the like.

581 A similar position applies with respect to the subdivision potential of a landholding capable of being divided into a number of allotments that could each have a dwelling entitlement. Although the constraints that arise for consideration in assessing the possibility of subdivision differ from those that arise when considering how much floor space can be yielded from a development site, the broad principles nonetheless apply.

582 Whilst a theoretical subdivision yield can be calculated, in crude measure, by dividing an overall landholding by the relevant minimum allotment size after making an allowance for necessary internal road provision, the resultant allotment yield is, as with a floor space yield, a theoretical maximum to which a developer can aspire rather than a number to which they are entitled.

583 Constraints on subdivision yields will arise, conventionally, from matters such as the necessity to protect riparian corridors; necessary bushfire protection measures; preservation of statutorily protected flora or the habitats of statutorily protected fauna; topographic constraints on access; flooding risk and the like. Equally relevant in any subdivision assessment and analysis of constraints is the nature of any approved or permitted and established activity on other land in the vicinity of the proposed subdivision.

584 In this instance, the existence of an approved activity, being of the proposed wind farm, is a legitimate planning constraint on any future subdivision. The mere fact that subdivision is permissible does not mean that the theoretical maximum yield from some landholding should be approved without having regard to the constraint of the already existing wind farm approval or, if constructed, the operational wind farm.

585 Just as with consideration of the already subdivided allotments with dwelling entitlements, the consent authority will need to consider the visual, noise and shadow flicker impacts on any potential dwelling on any proposed subdivision allotment when determining whether or not to grant development consent for that subdivision.

586 Just as, absent the existence of the wind farm, Mr and Mrs King needed to demonstrate that an appropriate building envelope was available on each of their subdivision allotments having regard to the constraints on their landholding such as protecting future dwellings from bushfire and that appropriate access could be provided to each allotment, assessment of any future subdivision application for any landholding in the vicinity of the proposed wind farm will need to address all of the constraints, including the wind farm, when a consent authority determines whether or not to grant subdivision approval.

587 Just as owners of landholdings are not entitled to compensation for the diminution of subdivision potential because of man-made constraints such as freeway noise, high tension electricity easements, telecommunications easements and the like, nor are such landholders entitled to require acquisition of significant portions of their land to compensate for such constraints.

588 As a consequence, as the wind farm is, as earlier noted, permissible with development consent and has already been granted development consent by the Minister prior to any subdivision being permitted on any of the potentially subdivisible landholdings without such subdivision approval already having been granted, there is no lawful basis upon which we could require removal of any of the turbines in the wind farm because of the impact on possible future subdivision proposals for any nearby landholding.

Community enhancements scheme

589 In the EA, the proponent advanced a community enhancement scheme that was based on a proposal that the proponent had advanced at the time that Epuron was the initial proponent of the Cullerin Range wind farm.

590 For the Cullerin Range wind farm, a wind farm of 15 turbines as earlier noted, a community enhancement contribution of $25,000 per year for the life of the project was offered to (and accepted by) the council. The proponent subsequently paid 10 years of this contribution, in advance, as a lump sum – thus enabling the council to build a new community hall at Breadalbane, a small rural community in the general vicinity of the Cullerin Range wind farm.

591 In light of this experience, in May 2008, the council developed a ‘Community Enhancement Program Policy’ (incorporating a range of public facility improvements within the council's area) to be funded by future wind farm developments.

592 The purpose of the council's policy is to compensate the local community for the visual impact of hosting wind farms. The council's policy document describes this in the following terms:

The Upper Lachlan Council has seen six (6) significant wind farm developments approved in the local government area to date as well as a large electricity substation and an application has been lodged with the NSW Department of Planning for base load power stations.

Some of these state significant projects have the potential to portray or impart a negative effect on the attractiveness of the Shire to potential and existing residents.

In an effort to offset the potential negative effects of some of these developments, Council proposes to implement a Community Enhancement Program (CEP).

593 Further in the policy, the council states:

Council has adopted an annual contribution of $850.00 per megawatt of generating capacity (indexed to the CPI for Sydney commencing at the September, 2006 quarter) in respect to wind farms.

594 To calculate what the council considers to be the appropriate rate of contribution for future wind farms, the council has taken the level of contribution offered for the Cullerin Range wind farm and turned that into a per megawatt rate. This is the derivation of the figure quoted in the immediately preceding paragraph. Applying that rate to the presently anticipated output for this wind farm would lead to a contribution to the council's fund of $204,850 per annum for the life of the project.

595 On the other hand, the precise details of the proponent’s proposed community enhancement scheme were set out in the EA for this wind farm. It is described in the following terms:

The Community Enhancement program would include two components:

1. A Clean Energy Program, specific to supporting the installation of residential clean energy improvements

2. A Community Fund, to provide funds to undertake initiatives which provide direct benefit to the local community.

The Proponent would fund this program through a total annual allocation of $75,000 per annum from project revenues, from commencement of operation of the project until final decommissioning. This annual allocation will be escalated with CPI from the date of commencement of the wind farm operation.

596 As part of the Minister's conditions, the Minister has required the proponent to pay the amount claimed by the council under its scheme (to be applied for the purposes proposed by the council in the council's scheme) unless the proponent proposes an alternative community enhancement scheme acceptable to the Director-General.

597 The proponent has, in Matter No. 10700 of 2009, sought to delete the Minister's condition and replace that condition with an alternative condition reflecting the proponent’s Environmental Assessment proposed level of contribution and purposes for which the contribution is to be applied. The result would be a yearly contribution to a community enhancement program of $75,000 with the program modelled on that advanced by the proponent rather than the council.

598 The council has, as part of its submissions in these proceedings, supported the Minister's condition as to contribution level and the basis for utilisation of those contributions.

599 We turn, first, to the question of the appropriate level of contribution that should be required. In this regard, we have the evidence of Mr Durran, an executive of the company, that there was no calculated basis that provided any foundation for the amount that had been offered for the Cullerin Range wind farm community contribution. He said that the amount had been selected by the proponent because it reflected what the company considered was a fair and reasonable amount under the circumstances.

600 We were also provided a table that showed what would be the rate per turbine that would be derived if the contribution rate for the Cullerin Range wind farm of $25,000 per annum were to be attributed on a per turbine basis. The result of such a calculation shows that the Cullerin Range wind farm contribution is $1,666 per annum per turbine for the life of that wind farm.

601 It is clear, from the material contained in the environmental assessment and other evidence given in the proceedings that final selection of the turbines to be used in this proposed wind farm will be dependent on a number of matters including availability of turbines, exchange rates, expectations concerning electricity prices and the like.

602 However, we are of the view that any proposed compensatory payment ought only relate to the generating capacity of a turbine if there is some particular extent to which the visual impact of a turbine alters as a consequence of any change in the generating capacity of such turbine.

603 The position as noted in RES Southern Cross v Minister for Planning and Taralga Landscape Guardians Inc. [2009] NSWLEC 1034, at para 19, is that there is little or no perceptible difference in noise between a wind farm installation such as that presently operating at the Cullerin Range wind farm and that wind farm if there were to be any increase in the generating capacity of its turbines.

604 The position is also that there is no visual impact of any significance caused by either the height of the rotors or the height of the tower supporting the turbine nacelle if there any increase in the generating capacity of the turbines. Further, there is no additional visual impact from the turbine nacelle housing of a more powerful turbine, as there is no increase in the size of the nacelle.

605 All this leads inescapably, in our view, to the conclusion that there is no rational basis upon which the visual impact of a wind farm could be linked to its electricity generation output capacity.

606 On the other hand, although we accept that the proponent selected $25,000 on some abstract basis as being the appropriate amount for compensation for the Cullerin Range wind farm, the proponent obviously considered that that was the appropriate amount to compensate the local community for the presence of 15 turbines in their landscape.

607 Although, in this instance, there are proposed to be significantly more turbines in the Gullen range landscape than the Cullerin Range wind farm, we are satisfied that the turbine arrangement (within the four sectors and across the two distinct halves of this wind farm) is not so radically dissimilar to a repetition of the clumping and tailed arrangements of the Cullerin Range wind farm that a per turbine rate derived from the contribution to that wind farm would not be appropriate to be applied to this wind farm.

608 As a consequence, although we do not accept that the contribution in the Minister’s conditions is appropriate; neither do we accept that the amount of $75,000 per annum proposed by the proponent is acceptable.

609 Instead, given that this decision also provides a range of choices for the proponent as to whether it wishes to delete turbines or acquire properties, we consider it appropriate to adopt the per turbine rate derived from the Cullerin Range wind farm (of $1,666 per turbine per annum) and not express the contribution as an aggregated sum. We do this because the amount of the contribution will, in the final analysis, depend on the number of turbines to be developed by the proponent in light of this decision and its choices arising from it. As a consequence, this element of the condition is to be rewritten to reflect this decision.

610 We now turn to consider the nature of the scheme to which the contribution is to be applied. Mr Pickles made a number of criticisms of the council’s scheme, the first being that the costing of the works for each of the proposed projects was imprecise (as was conceded by Mr Mowle, in the course of his oral evidence). A second criticism he made was that there was no particular link for many of the projects on the council's list of possible application of the funds to the portion of the council's area where this wind farm is to be located.

611 To these criticisms is to be added, in our view, the fact that, as is evident from the property tenure maps, a significant number of the properties, earlier described as being to the east and south-east of the more southern portion of the southern half of this wind farm are not located within the council's boundaries but are located in the neighbouring local government area of Goulburn Mulwaree Shire. As a consequence, we are of the view that there would be, if we were to adopt the totality of the council's scheme as the recipient of these funds, limited benefit to those affected properties.

612 On the other hand, there are attractions and limitations to the proponent's proposal. First, the proponent's proposal is both symbolically and practically linked to the renewable energy – the social desirability of which we have earlier discussed, briefly, and was discussed, as earlier noted, extensively by Preston CJ in Taralga. Second, the proponent's scheme is, in its renewable energy aspect, not limited to the boundaries of the council's local government area but encompasses all residences question from non-associated properties within 10 km of a turbine of this wind farm.

613 Such a proposal remedies the inequity effect that would arise if the council's scheme were to be adopted as the full position.

614 Finally, the proponent's scheme recognises that there might be a limited taking up of its scheme – a possibility, perhaps, more likely given the rate of contribution we have determined may result in a total contribution nearly double that anticipated by the proponent when crafting their own proposal – and addresses that by providing that any on taken up portion in any 12 month period would default to a contribution to the council's scheme.

615 As a consequence, as we consider the defects in the proponent's scheme can be secured, as discussed below, we consider that the proponent’s scheme is preferable subject to the changes described below.

616 On the other hand, the proponent's proposal also requires not insignificant contributions from households that might wish to participate. Given the wide range of financial circumstances that were put to us during the course of hearing the objector evidence, we are concerned that the requirement for any contribution by a householder would be potentially discriminatory and, indeed, would have the potential to make it significantly less likely that those households in the socio-economic demographic that would most benefit from such energy efficiency installations would be those least able to take up that option.

617 As a consequence, particularly in light of the fact that the increased contribution levels we have determined will make it more likely that there will be the ability to enrol more households than previously anticipated (even if there is no financial contribution required from that household), such contributions are not to be a part of the scheme.

618 The second element of the proponent’s proposal that concerns us is it makes the provision of these alternative energy installations subject to uncertainty, in some fashion, by making it conditional on the extent of government subsidies or rebates available for this purpose. The social desirability (as well as the environmental desirability) of these installations should not be subject to such a linkage. As a consequence, the proponent's scheme, to ensure certainty for the local community, should also have this aspect removed. Again, because of the fact that there is likely to be significantly more money available for the scheme than would be provided under the proponent’s funding regime, we would not expect this uncoupling from government subsidy levels to make any significant difference to take up rates.

619 As a consequence of all the foregoing, the outline of a modified proponent proposal scheme can be derived from this decision (and reflected in the conditions) but we would expect that the final details of the scheme, including a process for calling of applications, assessment and prioritisation for access to funding from the scheme (if there were more applications in any year than there were funds available to support them) needs to be developed and approved by the Director-General. Such details of the scheme should include a basis for participation by the local community and by the council in the selection and prioritisation process and the conditions of consent are to reflect that this is to be a requirement of the scheme.

Structure of the acquisition condition

620 As we have concluded that the impact on a number of individual properties is sufficiently adverse that the proponent should either acquire them or delete specified turbines from the proposal, we have turned our attention to what should be the structure of the relevant condition to give effect to this position.

621 In considering this, we have had regard to the overall public policy desirability of renewable energy and the broad public interest matters associated with it (as discussed by Preston CJ in Taralga). However, we have also had regard to the legal principle of certainty in decision-making concerning conditions of development consent (see Mison v Randwick Municipal Council (1991) 23 NSWLR 734). In this instance, this is to be coupled with the social desirability of providing the maximum possible degree of certainty and predictability to the adversely affected landholders.

622 The Minister’s approval includes conditions 2.23 to 2.27 that set up an acquisition regime that applies only to Lots 5 to 12 of the Kings’ subdivision.

623 The Minister's acquisition condition is structured in a fashion that requires the proponent, if it has determined to proceed with any or all of the impacting turbines, to notify the owners (of the identified allotments in the King subdivision) at that time of that fact. If such notification is given to those owners, those owners may, within one year from the date of that notification (provided that neither the wind farm development consent nor the subdivision development consent had lapsed or been surrendered within that period), the proponent shall acquire the property or properties of which such notification has been given if the proponent intends to proceed with any or all of the impacting turbines. If such written request is made, the proponent is required to make a binding written offer to acquire the requested lands on a valuation and other costs basis set out in the conditions. A process is then set out that would permit the determination of an acquisition price if the proponent and the relevant land owner were not able to reach agreement on the terms for acquisition.

624 The Director-General's environmental assessment report was provided to the Minister, under cover of a departmental briefing note recommending that the Minister approve the proposal in the form to which her consent was given. At page 34 of the Director-General's assessment, the discussion set out below occurs relating to subdivision impacts. The discussion is in response to a submission made by the Kings. Although the council had provided information to the Department indicating that two properties in the vicinity of the proposed wind farm had received subdivision approval the second (obviously the Christie property) is not discussed and no consideration is given to impact on the Christie property in the Director-General's assessment report.

625 The discussion concerning the King's subdivision is in the following terms:

On 24 July 2008, Upper Lachlan Shire Council issued development consent for a 20 lot subdivision with site-specific dwelling entitlement for land adjacent to the Pomeroy West portion of the project. Five Lots have dwelling sites within 250-800 m of planned turbines POM_20, POM_19, POM_16, POM_15, POM_14, POM_13 and POM_12. Potential environmental impacts to the proposed subdivision including and visual impacts have not been addressed by the Proponent.

The Department considers that the proximity of turbines to the approved subdivision lots will severely affect the identified and approved dwelling sites, resulting in significant amenity impacts. Mitigation is suggested in the Proponent’s Statement of Commitments (being “reasonable and feasible noise mitigation measures to achieve a criterion (LAeq 10) of 30dB(A) inside bedrooms for no more than one dwelling on each parcel of land) are not considered by the Department to be sufficient to adequately address these amenity impacts. Therefore the turbines should either be deleted from the proposal or the Proponent should be required to acquire eight affected lots of the owner's request. The Department proposes that the Proponent be required to acquire the affected lots if requested by the owner, and recommends imposition of conditions of approval accordingly. The acquisition conditions would only take effect if the Proponent proceeds with the turbines in question, thereby allowing the Proponent to effectively delete these turbines (ie choose not to proceed) as an alternative to the acquisition.

626 The Ministerial briefing note recommending approval (to which the Director-General's assessment was appended) effectively incorporated the salient elements from the Director General's assessment report.

627 The Director-General's assessment report includes a footnote noting that the five lots mentioned in the second sentence are Lots 6, 7, 8, 9 and 10 in the King's subdivision. There is no detailed assessment for each of these lots nor is there any explanation of how the five lots in this sentence become the eight lots identified in the second paragraph – an expansion that led to Lots 5, 11 and 12 being incorporated in the acquisition conditions. It is, therefore, necessary for us to conduct, as best we are able on the evidence available to us, an assessment of the impacts of the wind farm on each of these eight allotments and reach a conclusion as to whether or not any or all of them should remain subject to a requirement for acquisition by the proponent.

628 We have not considered any submission that may have been made by the Kings because it is obvious from the Director-General's assessment report and the briefing note to the Minister that the individual submissions were not provided to her and did not, therefore, form part of her decision-making process.

629 In the alternative, the Kings propose alternative conditions with a more complex timeframe for compliance. For reasons discussed in the following portion of the judgment, we do not set them out in full.

630 The Guardians have adopted the Kings’ proposed acquisition regime for general application.

631 The limit that the Minister has imposed on the validity of the approval is in the following terms:

This approval shall lapse five years after the date on which it is granted unless the Proponent has confirmed to the satisfaction of the Director-General that orders have been placed for wind turbines, or demonstrated that work subject of this approval has been completed on the site before that time.

632 We have concluded that:

• it is desirable that there be a single acquisition condition applying to all properties that are contained in the acquisition schedule although, as later discussed, the proponent is to be given a choice between acquisition or deletion of the unacceptably impacting turbines;
• although the Kings’ acquisition conditions were adopted by the Guardians as an alternative to the Minister's condition, we consider that the Kings’ conditions themselves, if applied generally, would also fall foul of what we regard to be the significant structural defect of the Minister's acquisition condition – that is the potential open-ended nature of the time period for which such a condition might run;
• the Minister's condition is one which leaves, when considered in conjunction with the lapsing condition for the consent, far too much of the burden of uncertainty as to acquisition for landholders whose properties, in whole or in part, fall within the acquisition clause.
  
  

633 Although we are satisfied that the five years provided by the Minister's lapsing condition does not cause uncertainty whether this time period is too long is a matter discussed below, the two exceptions to the time lapsing being triggered (placing an order for turbines or the completion of work encompassed by the consent) are resplendent with uncertainties.

634 There is nothing in the evidence that would indicate that there might be any guaranteed time limits for delivery of turbines after an order were to be placed for them. Second, the expression “work subject of this approval has been completed on the site” in the condition, could merely, understanding of the way the condition is written, be satisfied by construction of portion of the access road network within the wind farm (for example). Either of these processes could contribute to a further significant period of time within which landholders who are listed in the acquisition of schedule would be left with the uncertainty of whether or not the project would proceed.

635 The extent of this potential uncertainty is, in our view, entirely unreasonable. Whilst the totality of the economic risk, obviously, lies with a combination of the proponent and those properties whose owners have chosen to be associated with the project, it would seem to us that the significant, if not total, social uncertainty lies with the landholders in the acquisition schedule and, to a very limited extent, in their slipstream, other landholders in the vicinity (whether participating in the proceedings and excluded from the acquisition schedule or otherwise); the broader local community; and the council. As a consequence, we consider it appropriate to fix a period of time as the outer limit within which the proponent must choose between commencing an acquisition process for any of the properties in the acquisition schedule where the proponent does not elect to delete the unacceptably impacting turbines.

636 However, in considering how much time should be given to the proponent before the self-executing turbine deleting condition discussed below is triggered, we are also mindful of a number of other factors that weigh in the proponent’s (or society’s) favour in making the time period for these decisions by the proponent more lengthy than might ordinarily be the case. Primary amongst these reasons is the social and environmental desirability of encouraging renewable energy. Although, at the present time, there is a Commonwealth government proposal to promote the desirability of projects such as this by amendments to the Commonwealth renewable energy targets, there is some degree of political uncertainty presently attendant on this legislation. In addition, there is, in our view, a reasonable expectation that the present global financial position might have impacted on the viability of a project such as this.

637 Although these specific uncertainties have an element of speculation attached to them, the broader social desirability of encouraging investment in renewable energy, as discussed by Preston CJ in Taralga warrants that, setting aside any speculative barriers, a significant period of time should be allowed for the proponent prior to any self-executing turbine deleting provision being triggered with respect to any or all of the properties on the acquisition schedule. It is for that reason that we have set an absolute time limit of four years from the date of the Minister’s consent as the period within which such decisions are required to be made.

638 It may be that there is some combination of the various alternatives between acquisition of all of the unacceptably impacted properties or, at the other end of the spectrum, removal of all of the turbines identified by us as requiring it. That is a matter about which the proponent should have sufficient time to undertake an assessment and make a determination but not such an unlimited time as to leave a Damoclean sword hanging over individual landholders and denying them any reasonable degree of certainty about their economic and property utilisation futures.

639 We have endeavoured to balance the competing interests earlier referred to by structuring an outline of a condition to apply to each property in a fashion that will leave the choice of whether or not the nominated turbines (that create the unacceptable impacts in each instance) should be deleted as a choice residing with the proponent whilst providing a self-executing element that will ensure that such consideration by the proponent is not allowed to drag on unreasonably.

640 As a consequence, we have concluded that, with respect to each of the properties that we have identified as being subject to unacceptable impacts occasioned by nominated turbines, a condition is to be incorporated in the terms of the consent (for each such property) to require that, if the proponent has not initiated the process provided elsewhere in the conditions of consent for the acquisition of the nominated property within four years of the date of the Minister’s consent or prior to commencement of any construction activities in the relevant sector of the proposal (whichever is the earlier date), the nominated turbines identified as causing an unacceptable impact on that property are deleted from the development consent.

641 In addition, if the proponent has initiated the acquisition process within the four year period discussed above and the owners of the relevant property indicate that they do not would wish their property to be acquired or fail to indicate that they do wish to have their property acquired within three months of the commencement by the proponent of the acquisition process for that property, the requirement to acquire that property or delete the nominated relevantly applicable turbines is to lapse.

642 Incorporating self executing conditions of this nature with respect to each of the properties unacceptably adversely affected by turbines will enable the proponent to make an economic assessment of which course of action is appropriate for it with respect to each of the properties and, on a cumulative basis, over the totality of the project.

643 If the combined effect of these conditions, in whatever permutations and combinations considered by the proponent, renders the proposal economically unviable, matters concerning which are not within the evidentiary scope of the proceedings, we do not consider it inappropriate that the outcome would amount to constructive refusal of the proposal. We have considered this prospect and have concluded, as is conventionally the case where adverse impacts are not sufficient, in each individual instance, to warrant refusal but cumulatively do so, that this would be an appropriate consequence that we have anticipated might occur without knowing, expressly, whether it would occur.

644 Further, although we understood that the proponent had conceded that it should be required to acquire a number of allotments in the Kings’ subdivision (although not to the extent pressed by the Kings) and, later, after further consideration of the evidence as it unfolded during the proceedings, acquisition of the Daniel Hewitt property was also appropriate, we consider that conditions in the form discussed above should also be applied to each of the these property interests so that the proponent can consider the full range of options of acquisition or turbine removal that arise from the findings concerning unacceptable impacts detailed above.

645 The final form of this condition is to be settled between the parties with recourse to us if there are drafting disputes making this necessary. We do note that we consider that the conclusions we have reached are sufficiently precise (thus restricting the parties’ discussions to the terms of language rather than outcome to be achieved) so that this determination is not one of the nature discussed by Biscoe J in RES Southern Cross Pty Ltd v Minister for Planning and Anor [2008] NSWLEC 332; (2008) 166 LGERA 116 – indeed, we have expressly endeavoured to take it outside the scope of any imprecision of this nature.

Conclusions

646 The summary at the commencement of this judgement sets out, briefly, the outcome of the matters that we have needed to consider. These conclusions are intended to be a modest expansion of that so that those who wish to understand the outcomes can do so without being required to digest the totality of what is, in a merit appeal in this Court, an unusually lengthy judgment.

647 First, we have considered the various issues that were raised about the methodology and outcomes of the noise assessment and we have concluded that there is no basis upon which we could require changes nor was there any inadequacy of any material nature in the original assessment process. However, as the experts agreed on some changes to the conditions of consent, we are satisfied that it is appropriate to incorporate their agreed conditions in the conditions of consent.

648 With respect to construction impact issues along the Crown road in the vicinity of Gurrundah Creek, we have concluded that there is no Aboriginal cultural issue requiring our intervention. However, we have concluded that additional conditions are necessary to respond to the possibility of contamination in the vicinity of the former sheep dip site. We have also concluded that, on the uncontradicted evidence of Mr Phillip Price and his observation of platypuses in this vicinity, a precautionary approach should be adopted and further investigation undertaken to ensure that the Director-General is satisfied that appropriate steps are taken to protect the platypuses if this is necessary.

649 With respect to the visual impact of the proposed wind farm on the public domain, we have concluded that there are no individual viewing points from the public domain that would require any modification to let alone refusal of the proposal. In addition, for the reasons outlined, we are satisfied that there is no cumulative visual impact, even for a person driving from one end of the wind farm to the other, that would warrant modification to or refusal of the wind farm. There are no shadow flicker or unacceptable noise impacts on the public domain.

650 As part of the public domain visual impact assessment, we have also concluded that, if aviation hazard warning lights are required in future, that is not a factor that would alter our conclusion concerning the acceptability of the proposal when viewed from the public domain. However, the possibility of a requirement for the installation of aviation hazard warning lights is a matter that is relevant for consideration for a number of the individual landholdings where the existing dwellings or possible future dwellings would be closer than 2 km to turbines that would be so lit.

651 Near the commencement of this decision [at (47)], we noted that there was at least one significant difference from the circumstances with which Preston CJ was faced in Taralga. We noted, inter alia, that, in the Taralga wind farm proceedings, rural residences, on non-associated properties, were comparatively sparse and spread out and, because of the Cockbundoon Range to the east of the proposed Taralga wind farm, there were very few residences on rural properties to the east of the most easterly line of turbines of that proposed wind farm. As a consequence, the number of properties or individual allotments requiring assessment was small. Here, we have had to undertake over 40 separate assessments of properties or individual allotments – most of which are closer to proposed turbines than virtually all (but not all) the non-associated properties that required individual assessments in Taralga.

652 These properties have comprised the various landholdings nominated by the Guardians (some of which had more than one dwelling or dwelling entitlement) and the Kings’ landholding that is the subject of separate proceedings. In addition, we have also included in this individual property assessment a further small landholding, that where dwelling B33 is located, in the south-eastern area of the northern section of the proposed wind farm.

653 As a consequence of the hearings, the proponent agreed that it was prepared to offer to acquire two parcels of land. Those comprised in the Daniel Hewitt landholding and Lot 5 of the Christie subdivision (although this later agreement is not appropriate to be reflected in the acquisition schedule based on our merit findings). With respect to the Kings’ landholding, the proponent agreed that it should acquire Lots 6, 7 and 8 but resisted any requirement that it should acquire any other allotments in this subdivision.

654 We have concluded that not all the Kings’ subdivision allotments that the Minister had included in her acquisition condition warrant such a requirement. However, we have also concluded that the acquisition of Kings’ subdivision allotments proposed by the proponent is inadequate. We have also concluded that unacceptable impacts warrant inclusion of seven other landholdings or allotments with dwelling entitlements in the schedule of properties in an acquisition condition.

655 Because we had no evidence about the consequence for the proposal if any individual turbines were required to be removed, we have concluded that the acquisition process should be structured so that the proponent can elect whether to acquire any or all of the unacceptably impacted properties or delete any or all of the relevant impacting turbines. Because of the number of additional acquisitions we consider are warranted, we propose that this alternative acquisition or turbine deletion regime should apply to all the landholdings we have identified as being subject to unacceptable impact of including those four parcels – Daniel Hewitt, and Kings’ Lots 6, 7 and 8 accepted by the proponent as being appropriate for acquisition (as such inclusion is also supported by our merit assessments). More generally with respect to the Kings’ landholding, we have concluded, for the reasons earlier outlined, that the allotments to be included in the acquisition schedule should be Lots 6 to 11 rather than the more limited number accepted by the proponent.

656 With respect to the issue of compensation for loss of land value or “blight”, we have respectfully adopted the position taken by Preston CJ in Taralga that there is no lawful basis for requiring such compensation. We have also concluded that expectation of subdivisibility is, like any other development process, subject to constraints that arise from the nature of other approved development in the vicinity of any proposal.

657 Theoretical subdivisions, as opposed to approved subdivisions that have already undergone the planning approval process, may well be limited by the proposed wind farm, if constructed, but that is a development constraint that will arise from a lawfully approved development on an adjacent property. In this regard, there is no relevant difference between constraints arising from the wind farm compared to those that would arise from the necessity to protect endangered ecological communities or riparian corridors or sensitive landscapes (in a rural context) or heritage buildings or protection of solar access or acoustic and visual privacy of neighbouring properties (in an urban development context).

658 We have, therefore, concluded that no modification to or refusal of the proposed wind farm would be appropriate because of loss of subdivision potential (although we do accept that, in a number of instances, such subdivision potential is likely to be impacted). Similarly, for the reasons outlined in summary above, issues of compensation do not arise for legal reasons as well as on the merits concerning this topic.

Acquisition and impacting turbines table

659 Although we have not included the Humphrey and Jennifer Price-Jones landholding in the acquisition schedule, we have concluded that, if BAN_14 and BAN_15 are not deleted from the proposal and aviation hazard warning lighting were to be required in the future, the conditions are to require that the acquisition conditions would be triggered for this landholding at that time.

660 In addition, the property acquisition clause is to be structured so that if the proponent initiates the acquisition process but the property owner either indicates, expressly, that acquisition is not required or fails to indicate, within the nominated period then the requirement to acquire that property or delete the turbines impacting on that property will lapse. If any acquisition is not commenced within four years of the date of the Minister’s consent, a self-executing condition is to delete the relevant unacceptably impacting turbines.

661 We have rejected, for two reasons, giving any weight to the council's DCP and the numerical prescriptions in it. First, there is no statutory requirement for us to do so. Second, although it would be possible to have regard to the document as part of the broad public interest, the evidence given concerning the adoption of the numerical limits was exposed as being inaccurate and without foundation. The numerical limits in the DCP could, therefore, only be considered to be arbitrary and certainly could not be considered as being satisfactorily derived in the fashions for either a DCP or a council policy discussed by McClellan CJ in Stockland Development v Manly.

662 We have rejected two additional conditions proposed by the Kings – those seeking to impose a buffer utilising any land acquired from them by the proponent and a proposal for covenants preventing future intensive animal husbandry activities of any sort on any part of the Kings’ land acquired by the proponent.

663 We have determined that changes should be made to the landscaping condition to align it, generally, to the approach to this issue taken by Preston CJ in Taralga. Although this does not precisely reflect the changed landscaping clauses proposed by the Kings, our approach is responsive to some elements they suggested.

664 Finally, with respect to the community compensation scheme, we have concluded that there is no rational basis upon which visual or any other impacts and hence compensation, can be linked to the generating capacity of a turbine. As a consequence, we reject the formula proposed by the council and adopted by the Minister. Adopting what appeared to be an arbitrary figure, as the proponent did for the Cullerin Range wind farm, is an equally unacceptable approach. However, we are prepared to accept that the proponent, in reaching its conclusion about what might be an appropriate compensation amount for the Cullerin Range wind farm should be assumed to have had some regard to the number of turbines were proposed for that wind farm.

665 We have, therefore, adopted the relevant per turbine per annum amount that is derived from the Cullerin Range wind farm as being appropriate for this wind farm. That will result in a significant increase in the size of the fund compared to that suggested by the proponent but not to the extent required by the present conditions. We have preferred, in general terms, the proponent’s model for application of the funds in this scheme (where benefits can go directly to affected households and in a fashion sympathetic with and supportive of renewable energy with any unexpended monies in any year to be applied to the council's own fund). However, we have concluded that the proponent’s elements that involve attraction of or reliance on accessing government subsidies or which require co-contributions from beneficiaries are inappropriate and should be deleted.

Directions

666 As the conclusions we have reached require changes to the Minister’s conditions, we have considered how the three proceedings should be determined. It seems to us that each of the three appeals requires to be upheld, to some extent, at least. However, there is utility, in our view, in each appeal having common orders – namely that:

1. The appeal is upheld;
2. The conditions in Schedule 2 to the project approval by the Minister for Planning dated 26 June 2009 for Application No: 07_0118 are modified so that the project is now subject to the conditions in Annexure A; and
3. The exhibits are returned.
   
   

667 To permit this to occur (and to permit the parties to propose alternative orders if so desired), the matter is set down for further hearing on the wording (but not the substance) of the conditions at 9 am on Thursday 27 May – if required. In the meantime, the Minister’s representatives are to draft conditions to reflect the terms of this decision and discuss them with the other parties. If no party wishes to propose alternative orders and agreed conditions are filed, in hard copy and electronically by e-mail to the Court marked to our attention, by the close of business on Tuesday 25 May, we will make orders in chambers and vacate the mention.

Tim Moore Judy Fakes

Senior Commissioner Commissioner of the Court

AMENDMENTS:

19/08/2010 - 1. Paragraph inadvertently included - paragraph paragraph deleted

2. Incorrect geographic reference - south-eastern corrected to north-eastern - Paragraph(s) 1. 148

2. 427