QUINN & ORS v REGIONAL COUNCIL OF GOYDER & ANOR [2010] SAERDC 63 (24 November 2010)

Last Updated: 26 November 2010

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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QUINN & ORS v REGIONAL COUNCIL OF GOYDER & ANOR

[2010] SAERDC 63

Judgment of Her Honour Judge Cole, Commissioner Mosel and Commissioner Agnew

24 November 2010

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Appeal against grant of development plan consent to a proposed wind farm - planning assessment, particularly regarding visual amenity and noise.

Decision of Council confirmed, subject to minor modifications to conditions.

Development Act 1993; Environment Protection Act 1993; Acts Interpretation Act 1915, referred to.

City of Mitcham v Freckman and Others [1999] SASC 234; Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd [2007] NSWLEC 59, considered.

QUINN & ORS v REGIONAL COUNCIL OF GOYDER & ANOR

[2010] SAERDC 63

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This matter concerns a development application number 422/0165/08 (“the application”) made on 17 November 2008 by AGL Energy Ltd (“AGL”) to the District Council of Goyder (“the Council”), seeking approval to establish a wind farm on land east of the township of Hallett in the North Mount Lofty Ranges (“the proposed wind farm”). The application was processed as an application for Category 3 development. The Council received 71 representations in relation to the application. On 4 June 2009, the Council granted development plan consent to the proposal, subject to 26 conditions. Mr WL Quinn, Mr and Mrs Kelly and Ms Booth (“the appellants”) appealed against the Council’s decision.
2. The matter was heard over eight days in May and July 2010. The Court took a view of the site of the proposal and other locations in the vicinity of the site. The Council chose not to take an active part in the hearing, beyond tendering the 8 appeal books. Mr P Quinn appeared as counsel for the appellants, and Mr S Henry SC appeared as counsel for AGL. Mr Ellis, a town planner, Mr Edwards, a landscape architect, Professor Hansen, a mechanical engineer, Mr Wedding, and Mr Thomas gave evidence in the appellants’ case. Mr Turnbull, an acoustic engineer, Mr Devenish, a civil engineer, Mr Keates, a landscape architect, Ms Nolan, a town planner, Mr Knill, the development manager of AGL, Mr Badman, Mrs Badman, Ms Sinclair, Mr WD Gebhardt, Mr McInnis, Mr Walters and Mr Thornton, gave evidence in AGL’s case. Affidavits from 13 residents of the Council area were also tendered in AGL’s case.

The Proposal

3. The application, when it was lodged with the Council, sought approval for the establishment of 38 wind turbines and a substation on the land. In addition, the proposed development included infrastructure associated with the turbines; access roads, cables, hardstand areas for the turbines, wind monitoring masts and temporary site infrastructure during the construction phase. An overhead transmission line from the proposed substation on the land to an existing substation about 15 kms south/southwest of the land at Mokota would also need to be established, but that is not part of the application before us.
4. The application was processed by the Council as a Category 3 proposal and the Council received 71 representations in relation to the application. Ultimately, the application was approved by the Council, subject to 26 conditions.
5. AGL amended its proposal prior to the hearing of the appeal. Ms Nolan, in her statement, summarised the amendments in the following way:
   1. deletion of turbines numbered 6, 26, 27, 28 and 29;
   2. deletion of proposed 33kV underground cable between turbines numbered 25 and 30;
   3. deletion of proposed access tracks between turbines numbered 25 and 30;
   4. deletion of proposed 33kV underground cable between the substation and turbine 31;
   5. inclusion of new section of 33kV underground cable between turbines 31 and 32;
   6. inclusion of new section of 33kV underground cable between turbines 24 and 25;
   7. minor relocation of turbines numbered 8, 11 and 14; and
   8. deletion of all aviation lighting (ie no turbines will have aviation lighting).
6. The proposal before the Court is therefore for a wind farm of 33 turbines. Final selection has not yet been made, but it is likely that the turbines will be Suzlon S88 turbines, or similar. Each turbine will be 124 metres above finished ground level comprising an 80m tall tower and turbine blades 44m long mounted at the top of the tower. Each turbine will be placed within an area of approximately 40m x 40m, which has been cleared of vegetation. This area of clearance is required by the Country Fire Service. For construction purposes, a 20m x 35m hardstand area will be established next to each turbine to accommodate the crane to lift elements of the turbine. The foundations for each turbine will be either a standard gravity reinforced concrete foundation or a reinforced/prestressed concrete rock anchor foundation. This will be dictated by the geotechnical conditions at each site. Mr Knill anticipated that the rock anchors would most likely be used.
7. The proposed underground cabling will be installed at a depth of between 0.8m and 1.0m. The cables will have a 33kV capacity.
8. During construction, the access tracks are to be 12m to 14m wide. Once construction is complete, they will be reduced to a width of 6m, widening up to 9m, where required, at corners. Mr Knill said that, where possible, existing tracks will be ungraded and used. The access tracks will be surfaced with compacted, engineered base material which will include local stone where possible. It is intended to follow the existing land form where practical and to choose material colour to minimise the visual impact of the tracks.
9. The on-site substation is to be on a site adjacent to Toolangi Road. It will comprise above ground cabling, a site shed, lightning rods which will be up to 25m high, and associated facilities, including a 33kV to 132kV step-up transformer. The hardstand area for the substation will be 62m x 30m. It will be surfaced with compacted quarry rubble. Reinforced concrete footings will support electrical infrastructure and buildings.
10. The proposal includes two 80m high wind monitoring masts with associated guy lines. The masts will be either of lattice or tubular steel constructions. An existing 60m high mast and two existing temporary masts, which are 50m and 65m high, will be removed.
11. Temporary infrastructure during construction will comprise a site office, portable field offices, toilet facilities, materials storage areas and parking bays. There will also be temporary traffic signs.
12. AGL has prepared an Environmental Management Plan (“EMP”) which details the plans for the construction, operation and maintenance and eventual decommissioning of the wind farm. The EMP also sets performance requirements, a system of monitoring, auditing and inspecting, and implementation of corrective action.
13. The construction phase is likely to take 18 months.

The Land

14. The wind turbines are proposed to be sited along ridge lines and spurs associated with Mount Bryan (not the township, but the geographical feature) in the North Mount Lofty Ranges. They will be located approximately 3 kms east of the township of Hallett on land contained in eight certificates of title in three separate ownerships. The land is accessible via Toolangi Road, Mount Bryan East Road, Banbury Road or Cattle Station Road. Ms Nolan estimated that the land measures roughly 6kms east to west and 6 kms north to south. Ms Nolan further said that the whole of the land in the certificates of title involved amount to approximately 3,560 hectares. The land is presently predominantly used for the grazing of sheep. That land use will continue over most of the land if the wind farm proceeds.
15. There are three habitable dwellings on the land (see QED report, Book 7, p 111), and various buildings associated with farming. The Heysen Trail runs east/west through the land.

Site Selection

16. Mr Knill, the Development Manager, Power Development for AGL, gave evidence in AGL’s case. Mr Knill is a Civil Engineer, and has a Masters of Science in Wind Energy from the Technical University of Denmark (2004).
17. Mr Knill said that energy retailers now have a statutory obligation under Commonwealth legislation to source a proportion of the energy they sell from renewable sources. The proportion is to increase annually, until, by 2020, it will be 20%.
18. In his statement, Mr Knill said:

Electricity from the Mt Bryan Wind Farm will displace electricity which would otherwise be generated by fossil fuels.

The electrical energy produced by the wind farm will be enough, on average, to power approximately 42,000 average South Australian homes and displace the production of 256,000 tonnes of CO2 equivalent of greenhouse gas emissions into the atmosphere each year.

The embodied energy used in the manufacture, transportation and installation of turbines and associated infrastructure will be paid back within approximately 6 months of operation of the wind farm.

Unlike most types of fossil fuel generation, wind energy does not require water to generate electricity.

19. In relation to site selection, Mr Knill said, in his statement:
    19. In order to be considered as a suitable site, a wind farm site must satisfy the following criteria:
        1. Good wind resource;
        2. Capacity within and proximity to the high voltage electricity transmission network;
        100. Suitable access;
        4. Suitable geotechnical conditions;
        5. Adequate separation from residential properties;
        6. Compatibility with surrounding land uses;
        7. Availability of tenure to land on acceptable terms;
        8. Absence of nationally and locally significant areas with regard to environment, landscape, nature conservation, archaeology and cultural heritage;
        9. Capacity of site to deliver a project of sufficient scale;
        10. Satisfactory levels of community support.
    20. By the time I joined Wind Prospect in August 2004, the Mount Bryan Wind Farm site had been identified as a suitable site. A development application had been lodged for the project but this was subsequently withdrawn by Wind Prospect in 2005. I did not have any direct involvement in that development application.
    21. Subsequently, AGL contacted Wind Prospect with a view to reviving the Mount Bryan Wind Farm project and requested a proposal from Wind Prospect to act as development co-ordinator.
    22. From that time, Doreen Marchesan and I co-co-ordinated the project at Wind Prospect.
    23. With wind farm developments, the next step after site selection is to undertake a feasibility study addressing specific design issues. This next stage was undertaken by myself and Doreen.
    24. This study included detailed assessment of a number of environmental, social and commercial factors such as ecology, cultural heritage, visual amenity and communications. Operational requirements were also considered and evaluated. Results of feasibility studies led to the preferred final design.
    25. During the course of the concept design process, Wind Prospect undertook consultation with the community and other stakeholders, which included:
        1. Face to face meetings with the residents of Hallett and all houses within 3km of the site during a door-knock (or letter drop where absent);
        2. A mail out of notification letters to various stakeholders including local, state and national groups and agencies listed on pages 53-54 of the copy documents;
        100. Public exhibition day in the Hallett Town Hall (which gave the public opportunities to ask questions), which was advertised in 3 local newspapers and during the door-knock;
        4. Consultation meetings with various stakeholders, including community groups and Council planners;
        5. Distribution of newsletter updates during the development phase to residents and stakeholders who had provided their contact details for the purposes of receiving further information.
20. A statement of Mr Graham White was tendered in AGL’s case. The evidence in Mr White’s statement was not contested by the appellants. Mr White holds the degrees of Master of Engineering Science (1978) and Bachelor of Engineering (1972). Mr White is the Managing Director of Garrad Hassan Pacific Pty Ltd, an engineering consulting firm with expertise in wind energy. Mr White is an expert in the engineering aspects of the generation of electricity by wind.
21. Mr White said that wind monitoring on the site began in 2002 with the installation of anemometry at 47m on a pre-existing telecommunications mast. A further anemometry mast was installed on the land in December 2008, and two more were installed in April 2009. Mr White used information from these masts, together with information from the Bureau of Meteorology, and information about the proposal, to form his opinion. His methodology is set out in detail in his statement. His objective was to assess the long term capacity factor for the proposed wind farm. Mr White said, in his statement:

The capacity factor of a wind farm is a measure of the wind farm’s productivity. It is determined by comparing the wind farm’s actual production of electricity over a given time period, on the basis of wind conditions experienced by the turbines, versus the amount of electricity the same turbines would have produced had they been operating at the rated capacity of the generator for the same period. While the capacity factor is also related to the size of the generator being used, generally speaking the higher the capacity factor for a wind farm, the better the wind conditions at the site will be. Sites with consistent strong winds in the ideal wind speed range therefore have higher capacity factors.

...

The power of the wind is proportional to the speed cubed, and as a result the generation output of a wind farm is very sensitive to wind speed. Wind speeds are higher over high ground such as ridge lines and hills as the wind speeds up over these topographic formations. Valleys have high wind speeds which are lower than surrounding hills.

Therefore to increase productivity and achieve high capacity factors, wind farms are located on the windiest locations of a given region and these are the highest topographical formations such as hills and ridge lines.

22. It was Mr White’s evidence that the average long-term free mean wind speed at proposed hub height is a measure commonly used to compare potential wind farm sites. Mr White said that sites with an average long-term free mean wind speed higher than 8.0 m/s at hub height are generally considered to be very good sites for electricity generation in Australia. Mr White found the average long-term predicted free mean wind speed at hub height across all proposed turbine locations at the proposed site to be approximately 9.0 m/s at a typical hub height of 80m. Mr White said, in his statement:

From my knowledge of wind analysis and modelling of productivity of wind farms, the predicted free mean hub height wind speed at Mount Bryan is high for a site in South Australia, and higher than most other sites in other states such as Victoria, NSW and Queensland.

Based on the modelling, this hub wind speed corresponds to an approximate capacity factor for the wind farm of 43% for a typical 2 MW sized turbine, assuming typical losses relating to wake effects, wind farm availability, electrical efficiency, turbine performance and environmental factors.

Based on my experience in making wind and energy predictions for proposed wind farms, and given that typical capacity factors for operating wind farms in Australia are generally in order of 30 to 40%, I can conclude that the Mount Bryan Wind Farm site is among the most potentially productive sites in Australia for generating electricity from wind energy.

23. Mr White compared the approximate capacity factor of the Mount Bryan site with “a representative list” of 46 other wind farms which exist or are under development in South Australia, Victoria, NSW, Queensland and Tasmania. The Mount Bryan site was the fourth most productive out of the 46.
24. An “Environmental Statement”, comprising five volumes, was submitted to the Council in support of the application, and was included in the documents before the Court. The Environmental Statement included a detailed ecological assessment of the site. The appellants did not base any of their objections to the proposed development upon ecological grounds.
25. It was Mr Knill’s evidence that there are no recorded aboriginal heritage sites which would experience an impact from the proposal; however, AGL has entered into a process with the relevant Aboriginal group to manage any aboriginal heritage issues which arise in accordance with a cultural heritage agreement. No other heritage issues are anticipated. The appellants did not base any of their objections upon heritage grounds.
26. In addition to ecological and heritage issues, the Environmental Statement addressed such matters as roads and traffic, aviation, socio-economic impacts and greenhouse gas savings. None of those issues have been raised in this appeal.

The Locality

27. The appellants’ objections to the proposal related principally to the potential noise impact of the turbines, and their visual impact. Different localities are relevant to the assessment of the likely visual impact of the turbines and their noise impacts, so we will discuss the locality when dealing with the assessment under those headings, below.

The Development Plan

28. The application was lodged with the Council on 17 November 2008. The relevant Development Plan is the Goyder Council Development Plan consolidated on 12 April 2007.
29. The land is in the Primary Production Zone. The Objectives for the Primary Production Zone are:
    1. Economically productive, efficient and environmentally sustainable primary production.
    2. Allotments of a size and configuration that promote the efficient use of land for primary production.
    3. Protection of primary production from encroachment by incompatible land uses and protection of scenic qualities of rural landscapes.
    4. Development that contributes to the desired character of the zone.
30. The Zone has a lengthy desired character statement and 11 principles of development control (PDCs). The desired character statement and the relevant PDCs will be discussed further below.
31. Other provisions of the Development Plan are relevant to the assessment of the proposed wind farm. In particular, the section of the Development Plan entitled “Renewable Energy Facilities” was the subject of considerable evidence and submissions on the hearing of the appeal. Under Renewable Energy Facilities, the Development Plan provides as follows:

Renewable Energy Facilities

OBJECTIVES

1. The development of renewable energy facilities, such as wind and biomass energy facilities, in appropriate locations.
2. Location, siting, design and operation of renewable energy facilities to avoid or minimise adverse impacts and maximise positive impacts on the environment, the local community and the State.

PRINCIPLES OF DEVELOPMENT CONTROL

1. Renewable energy facilities, including wind farms and ancillary developments, should be located in areas that maximise efficient generation and supply of electricity.
2. Wind farms and ancillary development such as substations, maintenance sheds, access roads and connecting power-lines, should be sited, designed and operated in a manner that:

(a) avoids or minimises negative impacts on the character, landscape quality, visual significance or amenity of the area;

(b) uses elements of the landscape and appropriate materials and finishes to minimise visual impact;

(c) avoids or minimises the potential for adverse impact on areas of native vegetation, conservation, environmental, geological, tourism or built or natural heritage significance;

(d) does not impact on the safety of water or air transport and the operation of ports, airfields and designated landing strips;

(e) avoids or minimises nuisance or hazard to nearby property owners and/or occupiers, road users and wildlife by not:

(i) causing shadowing, flickering, reflection or blade glint impacts.

(ii) creating excessive noise.

(iii) interfering with television and radio signals.

(iv) modifying vegetation, soils and habitats.

(v) striking birds or bats.

Planning Assessment

33. This is an appeal pursuant to s 86(1)(b) of the Development Act 1993. Our task is to assess the proposed wind farm against the relevant provisions of the Development Plan, and general planning principles, and to decide, in the light of that assessment, whether to confirm, vary or reverse the Council’s decision to grant development plan consent to the proposed wind farm (see City of Mitcham v Freckman and Others[1]). In performing that task, we bear in mind the fact that the Development Plan is the end result of a detailed statutory process which involves input from State and Local government, and from the community, into planning policy (see Development Act 1993, Part 3, Division 2). The Development Plan sets out the planning policy which it is our task to apply in this assessment.
34. We were referred to judgments in other jurisdictions which set out in some detail the context for the support of the establishment of wind farms at State and Commonwealth government level. (see Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd[2]). We are, of course, generally aware of the current schools of thought in relation to climate change and the establishment of renewable energy facilities. Our focus in this assessment, however, is on the expression of planning policy in this State in the Development Plan.
35. The appellants’ challenge to the granting of development plan consent to the proposed wind farm was confined to the issues of visual amenity and noise, including the effect of the proposal on users of the Heysen Trail, together with a reference to a concern about erosion arising from the establishment of access tracks and pads for the turbines.

Visual Amenity

36. A considerable amount of evidence with respect to the likely impact of the proposed wind farm on the visual amenity of the area was placed before us. Mr Ellis, a town planner, gave evidence in relation to visual amenity in the appellants’ case. Mr Ellis’ evidence on this topic was based to a significant degree upon the report of EDAW, which was prepared on instructions from AGL and lodged with the Council in support of the application. The EDAW report was before us as part of the application documents, but the authors of the report were not called to give evidence. Mr Edwards, a landscape architect and planner, gave evidence in the appellants’ case relating to visual amenity.
37. None of the statements of the lay witnesses, tendered in the appellants’ case, directly indicated any concern about the appearance of the existing wind farm, Hallett 2, or the proposed wind farm. The witnesses who live in the same region as the site of the proposed wind farm and who gave evidence in the appellants’ case also expressed little or no concern about visual amenity; noise was their principal concern.
38. Mr Keates, a landscape architect, gave evidence concerning visual amenity in AGL’s case. Ms Nolan, a planner, also dealt with the issue in her evidence.

Approach to Visual Assessment

39. The Development Plan places a high value upon the scenic qualities of rural landscapes in the Primary Production Zone. Objectives 3 and 4 of the Primary Production Zone are:
    3. Protection of primary production from encroachment by incompatible land uses and protection of scenic qualities of rural landscapes.

4. Development that contributes to the desired character of the zone.

40. The Desired Character Statement for the Primary Production Zone says, among other things:

Public Realm

... The scenic qualities of the public routes and views across the primary production area will remain attractive and generally unobstructed by inappropriate development, including excessive advertising signs.

...

Areas of conservation and biodiversity significance will be protected from inappropriate new development.

Built Form

New buildings will generally be associated with existing clusters of buildings and will be of complementary scale and massing to those buildings, while also being of appropriate dimensions to serve their intended function. New dwellings will generally be single storey and will include pitched roofs, verandahs and porches to address climactic issues. Isolated new buildings, including large sheds, will be located and designed to blend with the existing landscape, with appropriate earthworks and building design to suit the natural landform. Other structures will be of a form that blends with, and does not detract from, the scenic qualities and function of the primary production area.

Building Materials/Character

The open rural landscape is the dominant character element and new development will maintain that character, with new buildings appropriately sited, designed and screened by vegetation. New buildings will be constructed using materials and colours that blend with the rural landscape and are traditionally used within the rural environment including corrugated steel, stone and timber.

Key Design Elements

When determining whether or not a development proposal is in accordance with the Desired Character, greater weight should be given to the following design elements:

• impact on the sustainability and viability of primary production uses;
• visual impact on the landscape character;
• impact on the freight network.

41. In the Natural Resources section of the Development Plan, Objectives 9 and 12 are:

9. Minimal disturbance and modification of the natural landform.

12. Protection of the scenic qualities of natural and rural landscapes.

42. Principle of development control (PDC) 1 of the Natural Resources section says:

Development should be undertaken with minimum impact on the natural environment, including air and water quality, land, soil, biodiversity and scenically attractive areas.

43. All of these provisions must be read together with the provisions of the Renewable Energy Facilities section of the Development Plan, which is set out above.
44. Objective 1 of the Renewable Energy Facilities section of the Development Plan seeks wind farms in “appropriate locations”. PDC 1 elucidates that term, providing that wind farms “should be located in areas that maximise efficient generation and supply of electricity”. We are satisfied, on the basis of the uncontested evidence of Mr White, which is outlined above, that the proposed wind farm will be sited in an “appropriate location”. More generally, we consider that the Renewable Energy Facilities provisions of the Development Plan express a planning policy which encourages the establishment of new wind farms in areas which maximise their electricity production.
45. Having established that, the assessment then turns to consider whether the elements of the wind farm, and the wind farm as a whole, are proposed to be sited, designed and operated in accordance with PDC 2 of the Renewable Energy Facilities section of the Development Plan, the provisions of the Primary Production Zone and other relevant provisions of the Development Plan, and general planning principles. In saying that, we acknowledge that there are areas of the State where the landscape qualities are so significant that a wind farm would not be appropriate, at all, on visual amenity grounds. Generally, we would not expect such areas to be zoned Primary Production. It is more likely that their zoning would have a conservation or heritage focus. We agree with Mr Keates that, while the locality of the wind farm proposal, and the site itself, has considerable visual appeal, it is not disqualified on visual amenity grounds from accommodating a wind farm.
46. We also acknowledge that, in principle, at a more localised level, there may be sites which are not appropriate for individual turbines, substations or tracks on account of landscape value. In the layout of the proposed wind farm, for example, no turbine is to be sited upon Mt Bryan or the Razorback, and other turbines which were proposed have been deleted to reduce the visual impact of the proposed wind farm.
47. Those provisions of PDC 2 of the Renewable Energy Facilities section of the Development Plan which deal with visual amenity must be applied, in an assessment of the proposed wind farm and its elements, in the context that the policies in relation to visual amenity must have been set in the knowledge that a wind farm necessarily involves the establishment of very high towers, with long blades attached at the top of them, in visually prominent locations. Mr Henry pointed out that the provisions of the Primary Production Zone which deal with visual amenity predate the Ministerial PAR of 24 July 2003 which inserted the Renewable Energy Facilities section into the Development Plan.

Assessment

Substation

48. The site for the 62m x 30m on-site substation adjacent to Toolangi Road is adjacent to an existing farm shed and storage, in an area which is already largely cleared of vegetation, presumably for purposes related to primary production. It will be partly screened by mature eucalypts from some vantage points. Ms Nolan, in her evidence, said that further screening could be provided, but she did not consider that it was necessary. We agree. The substation will have a significant visual impact in a confined locality around the site of the substation. We do not consider that the appearance of the substation will contravene the provisions of the Development Plan concerning visual amenity. In context, it will not cover a particularly large area, and nor will the structures be particularly visually intrusive. Service infrastructure on the scale of the substation is expected in most areas, including primary production areas (see PDC 29 Natural Resources section, Development Plan).

Turbines

49. The turbines will have a visual impact in a much larger locality than the substation. Mr Keates identified a “regional” locality roughly in a circle around the site, with a diameter of approximately 20kms. This area seems to us to be the locality within which any significant visual impact of the turbines will be experienced, though there will be areas within that locality which will experience no visual impact from the turbines. Obviously, the greatest impact will be within the “local” locality defined by Mr Keates which is drawn 1km from the turbines.
50. Both the regional and the local locality have a rural character. Agricultural land uses are evident. Through much of the locality, native vegetation is present only in sparse pockets. The topography around Mt Bryan provides interest to views and a backdrop from many vantage points. Much of the locality is visually attractive.
51. Mr Edwards and Mr Keates provided a detailed discussion of the likely visual impact of the turbines in their statements. The EDAW report in the application documents provides further information and assessment. Mr Ellis and Ms Nolan gave evidence of their opinions in relation to the impact of the proposed wind farm on visual amenity. We have taken all of that material into account. We consider that, in forming their views in relation to visual amenity, Mr Edwards and Mr Ellis placed insufficient weight upon the provisions of the Renewable Energy Facilities section of the Development Plan. We prefer the evidence of Mr Keates and Ms Nolan. Both Mr Ellis and Mr Edwards placed some weight on the statement in the EDAW report to the effect that the development of the proposed wind farm would result in the “encircling” of the Hallett township by wind farms. We understand that, from looking at a map (see Mr Edwards' statement, p.25), the establishment of the proposed wind farm would result in there being a wind farm west, south and east of Hallett. However, we agree with Mr Keates’ assessment that people present within the landscape will not have a visual sense of being “encircled” by wind farms. The distances involved, and the intervening vegetation and landforms need to be taken into account. Mr Keates said, in his statement, at p.47:

4.11.15. The idea of being surrounded by wind farms will not be evident when in the landscape. Clusters of wind turbines will be visible, but visually separated. Local landforms and vegetation screens and fragmented views will limit the ability to see large numbers of wind turbines within the same field of view, particularly when travelling along the Barrier Highway and other road corridors in the region.

4.11.16. While it is recognised that from elevated locations, particularly the summit of Mount Bryan, a greater number of turbines maybe visible, the location and separation of the existing and proposed developments ensure that the visual effect is experienced progressively, that is to say, as the panorama is viewed wind farms will come “into” and “out” of view.

52. We accept that evidence.
53. We note that measures are to be taken to reduce the visual impact of the turbines. Non-reflective paint is to be used. This will minimise glinting. The layout of the turbines has been planned to reduce the potential for shadow flicker. Night lighting is no longer part of this proposal.
54. Part of the desired character statement for the Township Zone in the Development Plan says, in relation to Hallett:

The scenic outlook of the town to the distant hills will be maintained, providing a pleasant experience for tourists and residents.

55. Appearing, as it does, in the Township Zone provisions, this extract relates more to development proposed within the Township Zone than outside of it. Opinions will differ as to the impact the turbines will have on the distant views, and on the less distant views that residents within the locality and walkers on the Heysen trail will have, and the extent to which the pleasantness of those views will be diminished. In our assessment, the establishment of 33 turbines will add a new element to the landscape, but it will not deprive the landscape of its scenic quality. The character of the landscape will retain an open, rural character (see the Desired Character Statement, Primary Production Zone). Reading the Development Plan as a whole, and bearing in mind the provisions of the Renewable Energy Facilities section, it seems to us that the modification of the appearance of the site is permissible in planning terms.

Turbine Pads and Access Roads

56. Mr Quinn made much of the appearance of the earthworks necessary to establish the turbines. In our opinion, the proposal minimises the disturbance and modification of the natural landform in compliance with Objective 9 of the Natural Resources section of the Development Plan. Viewers of the turbines from viewpoints throughout much of the regional locality will not be able to see the cleared pads on which the towers are standing. It will be necessary to get quite close to the turbines to see the ground around them. People walking near the turbines for recreation, for example, on the Heysen trail, which goes through the proposed wind farm site, will see the pads at the base of the turbines which they walk past. The Development Plan provides, in the Siting and Visibility section, PDC 1:

Development should be sited and designed to minimise its visual impact on:

(a) the natural, rural or heritage character of the area;

(b) areas of high visual or scenic value, particularly rural areas;

(c) views from public reserves, tourist routes and walking trails.

57. PDCs 2 and 3 of the Siting and Visibility section of the Development Plan speak of the desirability of buildings being sited in unobtrusive locations. Again, these provisions must be read in conjunction with the Renewable Energy Facilities provisions, which seek the development of renewable energy facilities in such a way as to maximise the efficient generation and supply of electricity. In this context, the Development Plan is not seeking to prevent development of this kind, but is seeking to have it undertaken with consideration to visual amenity.
58. Mr Devenish, a civil engineer, gave evidence in AGL’s case. Mr Devenish undertook an evaluation of the access road layout for the proposed wind farm prepared for AGL by Sinclair Knight Merz, engineers (“SKM”). In the course of the life of the development application for the proposed wind farm, the proposed turbine layout and the proposed access road design have undergone modification in response to concerns about visual amenity and alterations to the landform. These factors were influential in the deletion of five turbines from the proposed wind farm.
59. This appeal relates to the development plan consent for the proposed wind farm. At this stage, it is appropriate to consider the access roads at a conceptual level, acknowledging that the detailed engineering work can only be performed at a more advanced design phase. We must, however, be satisfied that a detailed design which complies with the relevant provisions of the Development Plan is physically possible. Conditions can be imposed on the development plan consent to ensure that such a design will be adopted. We note that the Council has taken this approach.
60. Mr Devenish said, in the conclusion to his statement:

Based on the nature and context of the information available to me for assessment I have made all the enquiries which I believe are desirable and appropriate and that no matters of significance which I regard as relevant have, to my knowledge, been withheld from the court.

An assessment of the visual impact of Wind Turbine Generators (WTG’s), power stations, associated hardstands or any other infrastructure required for the purposes of operating or maintaining the Wind Farm has not been included as part of this assessment.

On the basis of my review of the Mount Bryan Wind Farm Conceptual Road Layout my opinion is that the roads as proposed by AGL have been sited so as to minimise the extent of excavation and fill to enable construction of the wind farm. The reviewed layout of the 15th February 2010 seeks to minimise the disturbance and modification to the natural landform.

The amount of cut and fill is directly related to the level of disturbance and modification of the natural terrain. Visual impact relates to the location, severity and prominence of any modifications to the natural landform. The roads have been proposed in a suitable arrangement with regard to horizontal and vertical geometry so as to minimise disturbance and modification for the following reasons:

• The conceptual layout follows the general industry requirements for access roads on wind farms;
• The roads have been conservatively designed in accordance with Austroads Guide to Road Design Part 3: Geometric Design for the design parameters relevant to unsealed Wind Farm roads (for typical conceptual layout only);
• Cut and fill has been minimised by having the proposed roads follow the natural contours of the land;
• The peak ridgeline has been followed wherever possible thereby minimising the visibility of access roads from vantage points and ground level (from properties or local roads);
• By following contour lines there is no need to modify the natural landform;
• The conceptual road layout does not propose extensive excavation of the peaks but rather the road alignments deviate around the steep peaks and follow natural contours on the sides of the ranges that match the minimum vertical grades required for transportation of Wind Farm equipment;
• Where possible the deviations have been positions on the less obtrusive side of the range so as to minimise modification and visual impact;
• Some infilling of gullies (sags) is evident from the proposed layout but given the inherent low lying location of such gullies the visual impact of any modifications is minimised; and
• Where cut and fill is required typical road cross sections have been suggested that would minimise scarring and impacts on visual amenity.

61. We accept Mr Devenish’s evidence. We note that there was no expert evidence to contradict it.
62. We are satisfied that the access roads can be established in sufficient compliance with the relevant provisions of the Development Plan in relation to visual amenity.
63. In court, Mr Devenish was asked whether effective drainage and erosion control design could be achieved for the access roads and turbine hardstand areas. Mr Devenish said that it could be achieved, and that a design phase of about 6 months, with several engineers working on the project, would be required. Again, there was no expert evidence to the contrary. We accept Mr Devenish’s evidence.

Noise

64. The Renewable Energy Facilities section of the Development Plan seeks the development of renewable energy facilities in appropriate locations and seeks to have those facilities sited, designed and operated in such a manner as to avoid or minimise adverse impacts on the local community (see Objectives 1 and 2, above). In particular, in relation to noise, PDC 2(e) of the Renewable Energy Facilities section of the Development Plan provides that wind farms should be sited, designed and operated in a manner which avoids or minimises nuisance to nearby property occupiers and road users, by not creating excessive noise.
65. The Objectives of the Interface between Land Uses section of the Development Plan seek:
    1. Development located and designed to prevent adverse impact and conflict between land uses.
    2. Protect community health and amenity and support the operation of all desired land uses.
66. PDCs 1(b), 2, 6 and 7 of the Interface between Land Uses section provide:
    1. Development should not detrimentally affect the amenity of the locality or cause unreasonable interference through any of the following:

...

(b) noise

...

2. Development should be designed and sited to minimise negative impact on existing and potential future land uses considered appropriate in the locality.
6. Development should be designed, constructed and sited to minimise negative impacts of noise and to avoid unreasonable interference.
7. Development should be consistent with the relevant provisions each of the following documents [sic]:

...

(c) the current Environment Protection (Noise) Policy.

67. In assessing noise impacts, we also bear in mind the provisions of the Primary Production Zone, and, in particular, the desired character statement for that Zone and for the town of Hallett in the Township Zone.
68. There was an argument as to which set of Wind Farms Environmental Noise Guidelines should be applied to the proposed wind farm with reference to PDC 7(c) of the Interface between Land Uses section of the Development Plan. The Environment Protection Authority (“the EPA”) issued a set of Wind Farms Environmental Noise Guidelines in 2003 (“the 2003 Guidelines”). A review of those guidelines then took place between 2005 and 2009, which resulted in the generation and publication by the EPA of the Wind Farms Environmental Noise Guidelines (interim) 2007 (“the interim 2007 Guidelines”) and the Wind Farms Environmental Noise Guidelines 2009 (“the 2009 Guidelines”). From time to time during that review, the EPA communicated with various expert acoustic engineers, including Mr Turnbull, in relation to the guidelines.
69. Environment Protection Policies come into existence by means of a procedure which is provided for in the Environment Protection Act 1993, Part 5. In accordance with that procedure, the Environment Protection (Noise) Policy 2007 (“the EP(N) Policy 2007”) came into operation on 31 March 2008. Clauses 17 and 34 of the EP(N) Policy 2007 say:

17. Application of Part

Except as otherwise specified, this Part does not apply to noise to which the provisions of Part 6, or guidelines under Part 7, apply.

34. Wind Farms

(1) If a person operates a wind farm, the Wind Farms Environmental Noise Guidelines 2003 prepared by the Authority apply.

(2) In this clause-

wind farm means a group of wind turbine generators.

70. Mr Quinn argued that the proposed wind farm should be assessed by reference to the 2003 Guidelines or the interim 2007 Guidelines, and not the 2009 Guidelines. Mr Henry argued that the 2009 Guidelines should be used. Mr Henry relied on s 53 of the Development Act 1993. The Development Act 1993 provides, in s 53 (1), 2) and (3):

(1) Where an application is made for a development authorisation under this Act, the law to be applied in deciding the application and the law to be applied in resolving any issues arising from the decision in any proceedings (whether brought under this Act or not) is the law in force as at the time the application was made.

(2) The provisions of a Development Plan that are relevant to the consideration of an application for a development plan consent and to the resolution of issues arising in subsequent proceedings based on that application (whether brought under this Act or not) are the provisions of the relevant Development Plan as in force at the time the application was made.

(3) The provisions of the Building Rules that are relevant to the consideration of an application for a building rules consent and to the resolution of issues arising in subsequent proceedings base on that application (whether brought under this Act or not) are the provisions of the Building Rules as in force at the time the application was made.

71. We do not consider that either the EP(N) Policy 2007, nor the Guidelines referred to within it, constitute “law” within the meaning of s 53(1) of the Development Act 1993. The Development Act 1993, in s 53, deals specifically with the Development Plan and the Building Rules. It does not make specific provision in relation to Environmental Policies or Guidelines. The Environmental Policies and Guidelines which should therefore be applied in this matter are the Policies and Guidelines which were in operation at the date of the hearing. That still leaves the question of how to deal with the fact that the applicable Policy, being EP(N) Policy 2007 refers only to the 2003 Guidelines.
72. The Environment Protection Act 1993, in s 27, provides:

S 27 - Nature and contents of environment protection policies

...

(2) An environment protection policy may do one or more of the following according to its terms:

...

(c) set out requirements, standards, goals and guidelines:

...

73. The only way in which “guidelines” may operate is by being incorporated as part of an Environmental Policy. Mr Henry referred to the Acts Interpretation Act 1915, s 4 and s 14, which provide:

S 4 statutory instrument means –

(a) a regulation, rule, by-law or statute made under an Act; or

(ab) a proclamation, notice, order or other instrument made by the Governor or a Minister under an Act and published in the Gazette; or

(b) a code or standard made, approved or adopted under an Act; or

(c) any other instrument of a legislative character made or in force under an Act;

S 14B- Citation

...

(3) A reference in an Act to some other Act, or a Part or provision of some other Act (whether an Act of this State or of the Commonwealth or a place outside this State) will, unless the contrary intention appears, be construed –

(a) as a reference to that other Act, Part or provision as amended from time to time; and

(b) where the Act, Part or provision is substituted –

(i) by a subsequent Act – as a reference to that subsequent Act; or

(ii) by a subsequent Part of an Act – as a reference to that subsequent Part; or

(iii) by a subsequent provision of an Act – as a reference to that subsequent provision.

74. Mr Henry argued that the 2009 Guidelines were applicable pursuant to s 14B. We disagree. The Environment Protection Act 1993, in Part 5, provides for a fairly complex procedure for the authorisation of an Environmental Policy. We think it is clear that the guidelines, by themselves, are simply a document generated and published by the EPA. Unless and until those guidelines become part of an Environmental Policy by means of the authorisation of such a Policy under Part 5 of the Environment Protection Act 1993, those guidelines are not a statutory instrument (or part of a statutory instrument), and s 14B of the Acts Interpretation Act does not apply to them. Strictly speaking, therefore, PDC 7 of the Interface between Land Uses section of the Development Plan can only be referring to the EP(N) Policy 2007 and the 2003 Guidelines referred to in that Policy.
75. Having said that, it is important to bear in mind that both the Development Plan and the EP(N) Policy 2007 are policy documents and are not to be interpreted and applied as strictly as legislation. Whilst we have determined that the reference in the Development Plan is to the 2003 Guidelines, we will also consider the 2009 Guidelines on the basis that they represent a current school of thought upon the best way of assessing the noise impacts of a wind farm. We bear in mind that the assessment of noise impacts is not confined to compliance with any particular standard, but needs to address amenity. We note that Mr Turnbull and Professor Hansen, who are both expert acoustic engineers, considered that the 2009 Guidelines were the most appropriate Guidelines to use, (albeit that Professor Hansen had some reservations about aspects of those Guidelines). We also note that the only comprehensive predictions before us have been calculated by Mr Turnbull in a manner with which Professor Hansen, broadly, agreed (see the report of the meeting of acoustic experts annexed to Mr Turnbull’s statement). We do not consider that there is any basis for the application of the interim 2007 Guidelines. Neither expert acoustic engineer relied upon those Guidelines.
76. A discussion of acoustic measurements involves the use of technical terms. Professor Hansen usefully explained some of those terms in his report at p.5:

To minimise confusion, quantities used in this report are defined in this section. Quantities denoted “L” refer to sound pressure level in decibels (dB) and this is calculated by taking the logarithm to the base 10 of the root mean square (rms) sound pressure in Pascals (_Prms), multiplying it by 20 and adding 94, so that L = 20Log_10(Prms) + 94 dB. Subscripts on the quantity, “L” refer to how it is determined and what operations have been done on the raw data to produce the result. The subscript, “A” refers to the measurements being passed through an A-weighting filter that weights the sound approximately how the ear would perceive it; that is, it reduces the influence of low frequency noise as our ears do not hear that as easily. Almost all noise regulations are specified in terms of A-weighted sound pressure level, or dB(A). Thus L_A is the A-weighted sound pressure level. Additional subscripts refer to some statistics about how the sound level was determined. The subscript “eq” refers to the level, “L”, being calculated from the average of the squared sound pressures. The subscript “90” refers to the sound level that is exceeded 90% of the time. In other words, L_A90 refers to the loudest A-weighted noise level that occurs in the quietest 10% of the time and it ignores the noisiest 90% of each measurement period. This concept is illustrated graphically in the figures in Appendix 1 at the end of this report, where some conclusions that are pertinent to the current development proposal are also summarised. Similar definitions as for L_A90 also apply to L_A50 and L_A25. The subscript “10” or “10 min” refers to a measurement averaged over a 10 minute period. Thus _LA25,10 is the A-weighted sound pressure level that is exceeded 25% of the time in a 10 minute sampling period.

77. The significant difference, for the purposes of this appeal (given the acoustic evidence), between the 2003 Guidelines and the 2009 Guidelines, is the maximum predicted equivalent noise level for new wind farm development.
78. The 2003 Guidelines provide, in clause 2.2:

2.2 – Noise criteria – new wind farm development

The predicted equivalent noise level (_LAeq,10), adjusted for tonality in accordance with these guidelines, should not exceed:

• 35dB(A), or
• the background noise (_LA90,10) by more than 5dB(A),

whichever is the greater, at all relevant receivers for each integer wind speed from cut-in to rated power of the WTG.

The background noise should be as determined by the data collection and regression analysis procedure recommended under these guidelines (Section 3). It should be read from the resultant graph at the relevant integer wind speed.

79. The 2009 Guidelines provide, in clause 2.2:

2.2 – Noise criteria – new wind farm development

The predicted equivalent noise level (L_Aeq,10), adjusted for tonality in accordance with these guidelines, should not exceed:

• 35dB(A) at relevant receivers in localities which are primarily intended for rural living, or
• 40dB(A) at relevant receivers in localities in other zones, or
• the background noise (L_A90,10) by more than 5dB(A),

whichever is the greater, at all relevant receivers for wind speed from cut-in to rated power of the WTG and each integer wind speed in between.

The background noise should be as determined by the data collection and regression analysis procedure recommended under these guidelines (Section 3). It should be read from the resultant graph at the relevant integer wind speed.

Compliance with the noise criteria should also be demonstrated for the approved developments in the zone adjacent to the wind farm.

80. The 2009 Guidelines provide the following definition of “locality” and explanation of “rural living”:

Locality means an area to which a Development Plan applies (whether descried in the Plan as a locality, or as a zone or a precinct or otherwise) that is –

(a) made subject to a set of land use rules by provisions of the Plan; and

(b) not itself further divided by the Plan into areas that are made subject to separate sets of land use rules.

Rural living

A “rural living” zone is a rural-residential “lifestyle” area intended to have a relatively quiet amenity. The area should not be used for primary production other than to produce food, crops or keep animals for the occupiers’ own use, consumption and/or enjoyment. The noise amenity should be quieter than in an urban-residential area.

81. Both the 2003 Guidelines and the 2009 Guidelines say that they are not intended to apply to landowners who have entered into an agreement with a wind farm developer to site a turbine or turbines on their land, with a full understanding of the likely impacts. In relation to residences on land the subject of an agreement, generally the Guidelines will be sufficiently complied with if the noise level does not result in sleep disturbance.
82. Mr Quinn argued that the locality of the proposed wind farm was a rural living locality for the purposes of the 2009 Guidelines. We disagree. The Primary Production Zone is clearly intended for the economic and viable production of primary produce on a commercial basis. The Township of Hallett is a residential area, together with minor service and community facilities. There is no ‘rural living’, as that term is clearly described in the 2009 Guidelines (and understood for town planning purposes) within the locality.
83. Mr Turnbull gave evidence in AGL’s case. Mr Turnbull is an expert acoustic engineer with many years experience in the environmental noise assessment of wind farms. Mr Turnbull made his assessment with reference to the closest seven residences which have no agreement with AGL. They range in distance from 1591m to 2886m from the closest turbine. All are located within the Primary Production Zone. Mr Turnbull also made assessments in relation to three residences on parcels of land which are the subject of an agreement between the landowner and AGL to have a turbine or turbines sited on the land. Mr Turnbull referred to these properties as “financial landholder residences”, to indicate that the owner had a financial interest in the proposed wind farm. We will adopt that nomenclature in these reasons. These residences range in distance from 509 to 709m from the nearest turbine.
84. In relation to the financial landholder residences, Mr Turnbull took the reference in the Guidelines to sleep disturbance to be a reference to the World Health Organisation Guidelines, which recommend an indoor noise limit of 30 dB(A) which equates to an outdoor noise level of 45 dB(A) with windows open, or approximately 52dB(A) with windows closed.
85. Mr Turnbull undertook the exercise of predicting the noise from the wind farm. To do this, he took the sound power level produced by each of the proposed turbines and used a noise propagation model to predict the noise level. The sound power levels are levels which relate to the turbine alone; they exclude environmental noise. Mr Turnbull used the sound power levels for the Suzlon S88 turbine, with a hub height of 80m, a cut-in wind speed of 4m per second and rated power achieved at 14m per second. The Suzlon S88 is likely to be the turbine selected for the proposed wind farm. Mr Turnbull said that the manufacturer, Suzlon, advised him that the sound power level for a wind speed of 12 m/s was applicable at all higher wind speeds. The turbines are designed to turn no faster than they will turn at that wind speed. Suzlon guarantees that the turbines will be supplied free from tonality. No penalty need therefore be applied. The sound power levels were provided to Mr Turnbull by Suzlon. Mr Turnbull was comfortable relying upon that information. In his calculation of predicted noise levels, Mr Turnbull included the proposed sub-station.
86. Mr Turnbull used two different noise propagation models. He used a basic model, which takes into account attenuation associated with geometric spreading (over distance) and atmospheric absorption, but does not include attenuation associated with ground absorption or topography. Mr Turnbull therefore was of the view that the basic model would give rise to an overestimation of the predicted noise levels. At para 26 of his statement, Mr Turnbull said:

The predicted noise levels (dB(A)) with the basic model are summarised below:

Non-financial landholder residences:

The table indicates that the noise from the windfarm is predicted (with a conservative model) to be no greater than 40 dB(A) at all non-financial landholder residences, therefore achieving the requirements of the Guidelines.

Financial landholder residences:

The table indicates that the noise from the windfarm is predicted (with a conservative model) to be no greater than 46 dB(A) at all financial landholder residences. This level achieves the World Health Organisation Guidelines for sleep disturbance with windows closed.

87. Mr Turnbull’s reference to “the Guidelines” is a reference to the 2009 Guidelines.
88. The second model used by Mr Turnbull to predict noise levels was the CONCAWE model. Professor Hansen agreed that the use of this model was appropriate. The CONCAWE model is based on conditions where it is night, there is no cloud, the air temperature is 10˚C, the relative humidity is 80%, and the wind direction provides the highest predicted noise level. Mr Turnbull chose the model where the ground had finite acoustic impedance; in other words, it was hard ground. At para 30 of his statement, Mr Turnbull said:

The predicted noise levels (dB(A)) with the CONCAWE model are summarised below and are shown in Appendix C for an easterly wind speed of 11m/s:

Non-financial landholder residences:

The table indicates that the noise from the wind farm is predicted to be less than 40 dB(A) at all non-financial landholder residences, and therefore achieves the requirement of the Guidelines.

Financial landholder residences:

The table indicates that the noise from the windfarm is predicted with the CONCAWE model to be no greater than 45 dB(A) at all financial landholder residences. This level achieves the World Health Organisation Guidelines for sleep disturbance with windows open or closed.

89. Mr Turnbull also referred to the ISO9613 model of noise propagation. He said that it usually yielded a result approximately 2dB(A) lower than the CONCAWE model. He also said that it had been shown to be accurate for the prediction of noise levels from wind farms. In other words, Mr Turnbull was confident that both of his predictions, using the base model and the CONCAWE model, were a conservative, or over estimation of the likely noise levels of the proposed wind farm.
90. Mr Turnbull did not take background noise levels on the ground at the receptor locations because he was satisfied on the basis of the application of the propagation models that the lower level referred to in the 2009 Guidelines would be achieved. Mr Turnbull was also satisfied that the proposed wind farm would be sited to avoid adverse noise impacts to nearby property owners and occupiers.
91. Professor Hansen gave evidence in the appellants’ case. Professor Hansen is highly qualified and an expert acoustic engineer, but he has very little experience with wind farms. Professor Hansen’s brief from the appellants was basically to provide a critique of Mr Turnbull’s evidence and other information about the acoustic properties of the proposed wind farm. He was not, therefore, in a position to put a prediction of his own up against Mr Turnbull’s. Professor Hansen was concerned that, at higher wind speeds, the turbines may exceed Mr Turnbull’s predictions. Part of the basis for this was a desire for proof beyond the manufacturer’s assurance that the noise level would not increase at wind speeds over 12 m/s. No factual basis was provided for Professor Hansen’s concern. Mr Knill’s explanation of the manufacturer’s assurance was provided in his statement at para 42:

Turbines are designed to limit their output to a maximum level of electrical power. This maximum power is called the rated power of the turbine. Where we refer to a ‘2.1MW’ turbine, that is a reference to the rated power of the turbine. Output is a function of the speed of the wind turning the blades. Wind speed often exceeds the wind speed at which rated power is reached. If rated power is exceeded at higher wind speeds, this would have the effect of damaging the turbines and shortening their operating life. To avoid this, the blades are feathered (pitched) automatically so that rated power is not exceeded. For this reason, the speed of rotation of the blades does not significantly increase after rated power is reached. For modern turbines, rated power output is usually reached at wind speeds of about 10 to 12 m/sec (36 to 43km/h) at hub height.

92. We accept Mr Knill and Mr Turnbull’s evidence on this point.
93. Professor Hansen was also concerned that Suzlon’s sound power measurements may be inaccurate, and may not take into account the directivity effects of the noise in the direction of the residences. Professor Hansen was concerned that there would be times when there was a high wind speed at the turbine but little or no wind at the receptor residence, and that the predictions did not cover this kind of situation. Professor Hansen could envisage a number of situations where the assumptions built into the predictive calculation would not hold true, which might give rise to a higher level of noise.
94. Professor Hansen would have liked to have seen a full set of background noise levels taken. He would also have liked to have seen more detailed compliance checking from the Hallett 2 wind farm, and a comparison of those figures against the predictions for that wind farm. The figures Professor Hansen had concerning Hallett 2, which were gathered by Vipac, showed noise levels in excess of the predicted noise levels generated by the turbines. However, it was possible that the discrepancy was attributable to environmental noise, which was excluded in the predictions, but included in the measurements.
95. Professor Hansen agreed, in cross examination, that, if his criticisms of the predictive process undertaken by Mr Turnbull were accepted, that would result in a situation where there would be no basis upon which to predict whether the proposed wind farm would result in annoyance because of excessive noise. In summary, his view was that there should be more study done to establish to a higher level of certainty what the sound power levels of turbines would be, and more rigorous compliance testing of other wind farms.
96. Fundamentally, Professor Hansen’s evidence was a critique of the Guidelines and the current standard procedures for predicting noise levels for wind farms. The usefulness of Professor Hansen’s evidence in our assessment of whether the proposed wind farm would create excessive noise is limited. Mr Turnbull has undertaken the exercise, in accordance with recognised acoustic engineering practice, of predicting the noise levels of the proposed wind farm at the appropriate receptor locations. His results show that the proposed wind farm is within the 2009 Guideline level, and close to the 2003 Guideline level, on what is, in his opinion, a conservative approach. Mr Turnbull was firmly of the view that the proposed wind farm would not create a nuisance by means of excessive noise. He believed that the design and siting of the wind farm would be such that adverse noise impacts and nuisance would be avoided.
97. The appellants tendered affidavits from Ms Bailey-Hill, Mr Eldridge, Ms Johnson, Ms Mayne, Ms Moran, Ms Debra Quinn, Ms Eileen Quinn, Ms Rosemary Quinn, Ms Simpson, Mr Graham Thomas, Ms Robyn Thomas, Ms Laura Wedding and Mr Paul Wedding, all of whom live in the locality of the Hallett 2 wind farm, between 1.5kms and 6.96kms from the nearest turbine. Mr Wedding and Mr Thomas gave evidence in Court. All of these witnesses gave evidence of their experience of the noise of the Hallett 2 wind farm, which has been operational since about June 2009. All find it annoying from time to time, to a greater or lesser extent. Opinions about which meteorological conditions prevailed, at the times when the wind farm was most annoying, varied. Many of the residents described the noise of the wind farm at their homes as a whooshing or whirring. It was also described as being like a jet overhead, which never passes, or a semi trailer approaching. It was also described as a roar, a hum, a shrill mechanical noise, a grinding, a low pitched buzzing and a choppy noise. The sustained nature of the noise was annoying to many of the deponents. All of the deponents reported that they are experiencing sleep disturbance and tiredness. Several also complain of headaches and feelings of stress, and two complain of problems with their ears. The deponents attribute their symptoms to the noise of the wind farm. Several of the deponents report that their children have begun bed wetting since the wind farm began operating. We accept that these witnesses honestly reported their experience in their affidavits, and, in the case of Mr Wedding and Mr Thomas, in their evidence.
98. Mr and Mrs Badman and Mr Thornton gave evidence in AGL’s case. They all live in Mt Bryan, and their evidence was that they experience no annoyance from the Hallett 2 wind farm. Mr Gebhardt and Mr McInnes also gave evidence in AGL’s case. Both of those witnesses have turbines on their properties, and neither is annoyed by turbine noise. Ms Sinclair, a resident of Edithburgh, also gave evidence in AGL’s case. Ms Sinclair lives 2.3 kms from the nearest turbine, which forms part of the 55 turbine Wattle Point Wind Farm. Ms Sinclair’s evidence was that she experiences no adverse effect from the wind farm. Mr Walters lives on a farm west of the Hallett 1 wind farm. His house is 1.8 kms from the nearest turbine. His evidence was that he cannot hear turbine noise from inside his house, and rarely hears it outside. He never finds it annoying.
99. All of the anecdotal evidence about noise related to existing wind farms. Ms Mayne, who lives 6.96 kms away from the Hallett 2 wind farm, will be about 3 kms from the proposed wind farm, and she expressed a concern about that. It seems from the residents’ evidence that the perception of the noise from turbines, and the response to that noise, varies greatly. It is clear, from the evidence of both Mr Turnbull and Professor Hansen, that the geographical relationship between the turbines and a residence has an influence over the extent to which turbine noise will be perceived at that residence. The type and orientation of the residence will affect whether noise is perceptible indoors. Both distance and the terrain between a turbine and a residence will influence the extent to which the sound travels. Meteorological conditions will also play a part. We are therefore quite unable to draw any firm inferences from the anecdotal evidence before us concerning the Hallett 1 and Hallett 2 wind farms as to what the likely effect of the proposed wind farm might be on the receptor residences identified by Mr Turnbull. In relation to the health and well being problems reported by the deponents to the affidavits tendered in AGL’s case, no scientific or medical evidence was adduced in the appellants’ case to support the attribution of those effects to the Hallett 2 wind farm. It would be necessary for appropriately qualified people to conduct a thorough investigation of a much larger section of the community near a wind farm (or several wind farms) before reliable conclusions could be drawn.
100. A report of a scientific advisory panel comprised of medical doctors, audiologists and acoustic professionals from the United States of America, Canada, Denmark and the United Kingdom, prepared for the American Wind Association and the Canadian Wind Energy Association was tendered in AGL’s case. The conclusions of that report were as follows:
     1. Sound from wind turbines does not pose a risk of hearing loss or any other adverse health effect in humans.
     2. Sub audible, low frequency sound and infrasound from wind turbines do not present a risk to human health.
     3. Some people may be annoyed at the presence of sound from wind turbines. Annoyance is not a pathological entity.
     4. A major cause of concern about wind turbine sound is its fluctuating nature. Some may find this sound annoying, a reaction that depends primarily on personal characteristics as opposed to the intensity of the sound level.
101. In the report, three studies in the Netherlands and in Sweden were referred to. The report related that the study in the Netherlands had concluded that wind turbine sound is easily perceived and, compared with sound from other sources, is annoying to a small percentage of people (5 percent at 35 to 40 dB(A)). The report said that two previous Swedish studies had found that about 5 percent of respondents to a survey were annoyed at noise levels between 35 to 40 dB(A) and 18 per cent at 40 to 45 dB(A).
102. It is our task in this matter to assess the proposed wind farm by reference to the relevant provisions of the Development Plan and general planning principles. The relevant provisions of the Development Plan, as we have discussed above, clearly seek the development of renewable energy facilities such as wind farms in areas where the generation of electricity can be maximised. Those provisions also seek to have wind farms located in such a way as to avoid or minimise nuisance from excessive noise. Compliance with EP(N) Policy 2007 is sought. In setting those policies, the framers of the Development Plan must have known that, even in a sparsely populated rural area such as the locality of the proposed wind farm, there will be residents who will be able to hear the turbines, and a small percentage of those residents are likely to be annoyed.

Summary and Conclusion

103. We have assessed the proposed wind farm against the relevant provisions of the Development Plan. The appellants’ appeal was based on the effect of the proposed wind farm on the visual amenity of the area (including the effect on users of the Heysen trail) and the impact the noise of the turbines may have on people within the locality.
104. AGL submitted a lengthy Environmental Statement with its development application, which provided information with respect to the environmental and ecological assessment of the proposed wind farm, aboriginal heritage, aviation and socio-economic impacts, among others. It is relevant to note in the overall assessment of the proposal that the appellants challenged the proposed wind farm only on the basis of visual amenity and noise, with a passing expression of concern about erosion. There is no challenge to the compliance of the proposed wind farm with those provisions of the Development Plan which related to the preservation of native flora and fauna. There is no assertion that the proposed wind farm will interfere with the use of land for purposes intended by the Objectives of the Primary Production Zone. There is no assertion that the proposed wind farm may result in bird or bat strike, interfere with radio or television signals or cause shadow, flickering, reflection or blade glint.
105. In relation to visual amenity, we prefer the assessment of Mr Keats to that of Mr Edwards and Mr Ellis. Some modification of the landscape must occur for the objectives of the Renewable Energy Facilities section of the Development Plan to be achieved. The uncontested evidence of Mr White was that the site of the proposed wind farm is a very good site in terms of the efficient generation of electricity. The site is therefore an appropriate location (Objective 1, Renewable Energy Facilities section). The Development Plan recognises that there may be negative impacts on the visual amenity of an area and seeks the avoidance or minimisation of that negative impact. We consider that the amended siting plan minimises that negative impact to the extent that it is possible given the nature of the proposed development. The landscape will remain an open, scenic, rural landscape. Views of the landscape will not be obstructed by the turbines, but they will form a new element in the landscape, as they must in order to achieve Objective 1 of the Renewable Energy Facilities section of the Development Plan.
106. In relation to noise, we accept the evidence of Mr Turnbull that the proposed wind farm will comply sufficiently with the relevant standards. Professor Hansen criticised those standards. He wished for more rigorous methods for noise prediction and compliance testing. Those are largely matters for those bodies which generate the policies and standards, and for the framers of the policy documents which adopt them. Generally, it is our task to apply the policies and standards as they exist.
107. It is implicit in the Development Plan that the establishment of a wind farm will result in the introduction of a new noise source in the locality of that wind farm. That is unavoidable with the present state of the technology. The establishment of wind farms is, nevertheless, sought. The Development Plan seeks the avoidance or minimisation of nuisance from excessive noise. The levels ascertained by Mr Turnbull are not excessive in terms of volume. There was no evidence to suggest that a different siting layout, or any other measures, would reduce the noise from the proposed wind farm.
108. In our planning assessment, the proposed wind farm is acceptable. The decision of the Council to grant development plan consent will be confirmed, subject to some minor variations to the conditions imposed.
109. There will be an order in the following terms:
     1. Development plan consent is granted to the application by AGL Energy Limited to erect up to 33 wind turbines (final location to be within 100 metres of the indicated locations on the Mt Bryan Wind Farm Site Layout dated 15 February 2010) and associated structures and site works in Development Application number 422/165/08, subject to the following conditions:
        
        
        1. The development must be substantially commenced within two (2) years of the date of the determination of the appeal and any work authorised or required by this Order must be substantially completed within five (5) years of the date of determination of the appeal.
           
           
        2. The development shall be undertaken in accordance with:
           
           

2.1 the Mt Bryan Wind Farm Site Layout dated 15 February 2010; and

2.2 the Site Layout Plans dated 19 April 2010 contained in Exhibit B13 of this matter,

except as varied by the conditions prescribed herein.

3. The site, buildings and materials to be utilised in the construction of the development shall be of a high quality and shall be maintained at all times to the satisfaction of the Council.
   
   
4. The applicant shall provide Council with engineering details for the construction and maintenance of all internal access roads (not forming part of the public road network) prior to the commencement of construction works. Such engineering detail will document the width, length and slope of the roads, as well as the construction method, materials and drainage systems to be utilised.
   
   
5. The applicant shall provide engineering design details for the hardstand areas as proposed for each of the turbine sites prior to the commencement of construction works.
   
   
6. The applicant shall engage an accredited road safety auditor to undertake a safety audit of the gazetted roads to the subject land. This safety audit shall be provided to Council, and agreed to by Council, prior to the commencement of construction works.
   
   
7. The applicant shall provide Council with all engineering design details for required improvements to the gazetted roads providing access to the development prior to construction works, for approval by Council’s Manager Technical Services.
   
   
8. Any temporary concrete batching plant associated with the construction of the development shall be sited in a location appropriate to Council, and shall be removed from the site upon completion of the construction works. The site of the concrete batching plant shall be remediated to its original condition upon removal. The establishment and operation of any concrete batching plant shall be in accordance with the Environment Protection Authority’s Environmental Guidelines for the Concrete Batching Industry.
   
   
9. Following construction, all site work areas, including access roads, not required for ongoing maintenance shall be rehabilitated including replanting with crops or other suitable soil binding species and by nurturing such plantings to the reasonable satisfaction of Council.
   
   
10. The applicant shall undertake a flora survey in Spring prior to construction, particularly in those areas associated with Eucalyptus odorata, to highlight understorey species not found during Autumn, with the report to be provided to the Regional Council of Goyder and the Department of Environment and Heritage.
    
    
11. The applicant shall undertake fauna surveys prior to any construction works to identify any low density populations of Pygmy Blue tongue lizards and Flinders worm lizards, which shall be forwarded to the Regional Council of Goyder and the Department of Environment and Heritage.
    
    

CFS Requirements

12. Access

• Heavy vehicle access will be necessary during the assembly and erection phases. Access roads on the project site will be required to a minimum width of 5 metres.
• Access roads are to be all weather construction and surfaces.
• Access road gradients shall not exceed 16o slope.
• Crossovers on any water course shall be constructed to support a minimum 15 tonne vehicle.
• Access road curves shall have an inside radii of 9 metres minimum.
• Dead end access roads shall have a 25 metre diameter all weather turnaround, or a “Y or T” shaped turnaround area with each leg being no less than 17 metres long.
• During the period 1st November to the following 30th April (Fire Danger Season), a 10 metre wide fuel managed zone on either side of all access roads upon the project land shall be mechanically slashed to a finished height of 100mm. This may need to be completed more than once in any one Fire Danger Season, due to the weather conditions and vegetation regrowth.
  
  

13. Tower sites are to be cleared of all flammable vegetation for an area of 40 metres by 40 metres during the construction phase, and maintained post construction phase during subsequent/each Fire Danger Season, to the same dimensions of 40 metres by 40 metres.
    
    
14. Fire Fighting Equipment
    
    
    • During any Fire Danger Season whilst the wind farm is being constructed, the following fire fighting equipment is to be readily available at all times at the site, and mounted on an appropriate 4 x 4 vehicle.
    • 2000 litres of fire fighting water.
    • One 5hp fire fighting pump.
    • 2 x 30 metre and 19 mm fire hose reels with spray/jet nozzles.
    • 4 x fire fighting knapsacks.
    • 4 x rake/hoes.
    • 4 x long handled shovels.
    • 2 x 9 litre stored water pressurised extinguishers.
    • 2 x 9 kg dry powder extinguishers.
15. During the construction phase and ongoing maintenance processes into the future, the local emergency services be provided with:
    • Tower identification mapping.
    • Security gate numbers and key sets.
    • Wind Farm Company all-hours emergency contact telephone numbers.

EPA Requirements

16. Noise levels from the Wind Farm at the noise sensitive receivers around the Wind Farm development are to meet requirements of the Wind Farms: Environmental Noise Guidelines 2009.
    
    
17. An independent acoustical consultancy (other than the company who prepared the predictive acoustical report) must be appointed to monitor noise levels at four localities at least: Houses 40, 41, 44 and 46 (as shown on the map in the acoustic report, Sonus Pty, 26 March, 2009). Monitoring should be executed in accordance with the EPA Wind Farms: Environmental Noise Guidelines 2009 where all of the noise sources associated with the wind farm are in operating mode. The results of the monitoring and confirmation of compliance should be submitted to the EPA no later than 2 months from the date of the wind turbine farm commissioning.
    
    
18. In case the post-construction noise monitoring report reveals exceedance of the specified noise criteria, noise monitoring of other relevant noise sensitive receivers must be arranged. The measures to assure compliance with the specified noise criteria must be undertaken by the proponent for all of the localities where the noise criteria incompliance is revealed. Agreement with the land owners of the noise affected premises can be considered as an option in accordance with the Wind Farms: Environmental Noise Guidelines 2009.
    
    

NOTE: These measured noise levels should be adjusted in accordance with the Wind Farm Environmental Noise Guidelines 2009, by the inclusion of a penalty for the tonal characteristic. Post-construction measurement of noise levels shall be carried out by a specialist noise consultant.

19. Any variations to the assessed wind turbine layout beyond 100m from indicated locations on the Mt Bryan Wind Farm Site Layout dated 15 February 2010, or turbine model that occurs during the detailed design or construction phase of the project must be assessed by a specialist noise consultant against the guideline published by the EPA. Confirmation of compliance with the EPA guidelines must be submitted to the planning authority to the satisfaction of the planning authority and the EPA prior to any construction of the affected turbines taking place. Note: For the purposes of these conditions a specialist noise consultant is taken to be one eligible for membership of both the Institution of Engineers Australia and the Australian Acoustical Society.
    
    
20. There shall be no on site burial of waste materials.
    
    
21. Following construction all site work areas, including access roads not required for ongoing maintenance, must be rehabilitated including by replanting with crops or other suitable soil binding species and by nurturing plantings at all times to the reasonable satisfaction of Council.
    
    
22. Fuel, chemicals, lubricants and other dangerous/hazardous materials likely to cause environmental harm must be contained on site in an appropriately designed containment facility. Bunding must be in accordance with the standards as outlined in the EPA Guidelines for Bunding and Spill Management 2004. Note: Volumes of such chemicals comprising small pallet bunds will be considered to be in compliance with the Guidelines.
    
    
23. All solid wastes generated during construction must be appropriately contained (covered bin) on site in a manner that prevents contamination of water resources and be removed from the site for disposal to an approved licensed waste facility.
    
    
24. Waste from portable toilets must be removed by a licensed contractor to a licensed facility.
    
    
25. Upon cessation of the use hereby approved the owner/operator must remove the wind turbines and other above ground infrastructure from the subject land within two (2) years, and all pad areas and access roads shall be reinstated and the land restored to the reasonable satisfaction of the Regional Council of Goyder.
    
    

SAMDBNRM Requirements

26. Measures to prevent pollution (including sediment) from entering existing waterways during the construction of the proposed development shall be undertaken in accordance with the Environment Protection Authority’s Handbook for Pollution Avoidance on Commercial and Residential Building Sites.

[1] [1999] SASC 234 at para 18

[2] [2007] NSWLEC 59