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Hislop & Ors v Glenelg SC Hislop & Ors v Glenelg SC [1998] VICCAT 1138 (15 October 1998)

IN THE VICTORIAN CIVIL AND

ADMINISTRATIVE TRIBUNAL

ADMINISTRATIVE DIVISION

PLANNING LIST

TRIBUNAL APPLICATION NO. 1997/88762

PERMIT APPLICATION NO. 190/97/H

HEARD AT PORTLAND BETWEEN TUESDAY 13TH OCTOBER AND THURSDAY 15TH OCTOBER 1998

TRIBUNAL



Mrs Jane Monk, Presiding Member

Mr Howard Terrill, Member

PARTIES



Applicants for Review/Permit Objectors Anna Louise Hislop, Max Dolman, Phillip Oakley, Bruce Campbell, Andrew Delony

Responsible Authority Shire of Glenelg

Respondent/Permit Applicant Energy Equity Corporation

Other Aboriginal Affairs Victoria

NATURE OF PROCEEDING



Application under Section 82 of the Planning and Environment Act 1987 for review of a decision to grant a permit.

PROPOSAL



To use and develop the land for a wind farm - wind energy power station.

THE LAND

Address



Generally at Cape Bridgewater,

Glenelg

Title Description



The land comprises the following individually owned Crown allotments, most of which abut the Coastal Park Reserve:

CA31, Sect 1 pt CA 32, Sect 1 CA 30, CA40, CA41, CA42, Sect 1 pt CA 33, CA34, pt CA35, CA36, Sect 1 CA 2, 3, 6, 7, Sect 2 CA 1, 2, 3, 19, 15, 18, CA27, 27A, 28, PS 1720441B Vol 9931 Fol 403, P{arish of Tarragal

PLANNING SCHEME AND ZONING



The land is zoned Rural 2 under the Heywood Planning Scheme. Within this zone the use wind farm is an inominate, Section 2 use for which a planning permit is required.

GROUNDS OF APPLICATION



"1. Classification by National Trust

Cape Bridgewater landscape is classified by the National Trust. The 60 metre wind turbines alter the landscape dramatically and change the visual amenity therefore diminishing the qualities of the classified landscape.

2. Section 214 - Heywood Planning Scheme

Under Section 214 of the Heywood Planning Scheme the Responsible Authority must have regard to "the impact and visual effect of works upon the landscape" in relation to developments adjacent to Sites of Special Scientific Interest. The 30 wind turbines will have a major impact on the landscape as they are spread out over a large area and are 60 metres in height. The establishment of the turbines requires road works and large machinery to put the turbines in place. These works will create a network of access roads to each turbine which will alter the underdeveloped landscape considerably.

3. Rural 2 Zone

The proposed development site is zone RU2. The purpose of this zone is to:

- "protect the special landscape and environmental features of the Zone"

- "to facilitate the long term protection and maintenance of the existing coastal environment"

- "to consider for consent only those developments which are sensitive and compatible with the scientific landscape character"

The height of the turbines and the noise generated by the turning blades will impose greatly on the natural and serene environmental features of the zone. The height of the turbines is not compatible to the landscape scenery and visual quality of the area.

4. Victorian Coastal Strategy

The Hon. Marie Tehan, Minister for Conservation & Land Management, stated in the Victorian Coastal Strategy "there must be adequate protection and restoration of significant sites, areas and features of the coast be they natural, cultural, historic, visual or built". Appendix 6 of the Strategy shows that Portland boasts 17 natural, cultural, development, recreation and tourism values whilst Lorne, Ocean Grove, Melbourne & Portsea only boast 12. Portland and Port Fairy have the highest values of any other Victorian coastal town or city. The Glenelg Shire has three Capes which have the following industries based on them:

Cape Grant - Aluminium smelter

Cape Nelson - Feed lots for live sheep export trade

Cape Bridgewater - 14 Tourist accommodation houses and B & B's, kiosk and restaurant, various recreational activities.

The proposed development does not fit into the Strategy outline for the preservation of important coastal areas. Cape Bridgewater should be free of industry development to ensure that the tourism industry can continue to flourish, as it is, in the promotion of Cape Bridgewater as a coastal recreation area that is free of industry."

APPEARANCES



- Mr Bernie Wilder, Town Planner, represented the Responsible Authority.

- Mr Matthew Townsend of Counsel, instructed by the Public Interest Law Clearing House, appeared for the applicants for review. Mr Townsend called the following persons to give expert evidence:

. Mr Neville Goddard, Acoustic Engineer with Watson Moss Growcott Acoustics Pty Ltd

. Mr Dennis Williamson, Landscape Architect and consultant in scenic, recreation and tourism resource planning and design with Scenic Spectrums Pty Ltd.

He also called the following local persons to give evidence:

. Mr Andrew Fowler, resident of Crown Allotment 29, Blowholes Road, Cape Bridgewater.

. Mr Phillip Oakly, operator of three holiday accommodation houses in the Cape Bridgewater area.

. Ms Angela Von Tunk, Policewoman and resident of Cape Bridgewater township.

. Mr Hayne Meredith, Co-ordinator of Outdoor Education for Wesley College and a fifth generation resident of the Cape Bridgewater and Bridgewater Lakes area.

. Ms Alexina Chalmers, OAM, recently retired tourism operator and member of the Portland Historic Buildings Restoration Commission (HBRC).

. Mr Barrie Hayman, Chairman HBRC.

. Mr Brendan Jarrett, Farmer, Tourism Operator, Investor and land owner in Kentbruck, north of Bridgewater Lakes.

. Mr Paul Hutchinson of Victor Harbour, South Australia, aspiring wind farm developer.

- Mr Ian Pitt of Best Hooper Solicitors, appeared for the permit applicant company. He called the following expert and lay witnesses:

. Mr Michael Barlow, Town Planner with A.T. Cox Consulting.

. Mr Peter Fearnside, Acoustic Engineer and Director of Carr Marshall Day Consultants.

. Mr Neil Buckingham, retired former City Engineer and Manager Economic Development and Planning at Portland Council.

. Mr William Jenkins, resident of Bridgewater Lakes, farmer and fifth generation resident of the Bridgewater area.

- Mr Thomas Richards, Heritage Policy Manager, appeared on the final day for Aboriginal Affairs Victoria.

All persons, other than Mr Jenkins, tabled and spoke to written submissions, reports or statements. In the case of the expert witnesses called by Mr Pitt, the reports had been circulated to all parties prior to the hearing, in accordance with the Tribunal's directions of 27th August 1998. The reports of Messrs Goddard and Williamson were provided on the morning of the first hearing day, contrary to the Tribunal's directions for them to be circulated by Friday 9th October. The Tribunal was advised however that drafts of these had been circulated between Friday 9th and Monday 12th October.

Except for an aerial photograph and the two volume Tract Consultants Report of September 1977, which have been returned to A.T. Cox Consulting, the written reports, statements, submissions and other documents tendered in the course of the hearing have been attached to the Tribunal's file.

On the morning of the second hearing day, in the company of representatives of all parties and again on the final day, following the hearing, the Tribunal inspected Cape Bridgewater and adjacent areas in order to gain a better understanding of the matters in dispute and to inform itself as to the nature and likely impacts of the proposal. The Tribunal would like to thank the Shire of Glenelg for providing bus transport for the multi-party inspection on the second day.

Subsequent to the hearing and upon realising that page 72 of Volume Two of the Tract Consultants report (Coastal Appraisal -South West Planning Scheme - September 1977) was missing, the Registrar, at the request of the Tribunal, obtained a copy of that page from Tract Consultants.

REASONS

Background



This application for permit to use and develop land at Cape Bridgewater for the purpose of a wind power station was one of three lodged with the Shire of Glenelg on 31st of October 1997. The other two applications concerned land generally at Cape Nelson and generally at Bridgewater Lakes.

The Shire of Glenelg determined to refuse a permit for the Bridgewater Lakes application and to grant permits for the Cape Bridgewater and Cape Nelson proposals.

Appeals by the permit applicant in relation to the Bridgewater Lakes proposal and by objectors in relation to the two Capes were subsequently lodged. At a preliminary hearing conducted on the 24th of February, to which all parties were invited, the future conduct and exchange of documents were discussed. So too was a letter, received on 13th of February 1998, from Mr Kim McGough, Manager of the South-Western Region of the Department of Infrastructure. The letter advised that the Minister for Planning and Local Government had been asked to decide whether an Environment Effects Statement was required for the three proposals. Attached to the letter was copy of another letter, dated 5th of February 1998, to the Chief Executive Officer of the Shire of Glenelg and signed by the Minister for Planning and Local Government. The relevant parts of this letter are set out below:

"As you are aware the proposals have significant potential environmental, economic and social implications which ideally deserve thorough assessment before final decisions are made. An EES may have been an appropriate mechanism to achieve this. It is worth noting that less substantial wind farm projects in Western Australia and Tasmania have been approved subject to the formal EIA process resulting in stringent conditions.

Given the advanced stage of the approvals process, with appeals before the AAT, the capacity of an EES to add value to the decision-making process is greatly diminished. Accordingly, I have decided that an EES is not required. However I consider the AAT should have regard to:

* archaeological significance of the proposed sites,

* bird utilisation of the sites, including migratory species and birds of prey, which may be particularly vulnerable to collisions with rotors,

* noise impact,

* possible impacts on native grassland values (Cape Bridgewater),

* impact of output transmission lines connecting the wind farm to the power grid.

Furthermore, due to the lack of Australian experience with such projects, consideration has necessarily been given to overseas data, although many overseas facilities might not be directly comparable to the Portland proposals. Therefore if one or more of the proposals is to proceed, it offers an opportunity to gather operational data which will be of great value in assessing any subsequent wind farm proposals. Given the pioneering nature and ramifications of this project, continuing monitoring will be very beneficial to assist in the pursuit of and development of alternate power generation.

If it is decided that one or more planning permits should be issued, I would suggest that conditions requiring preparation and implementation of a detailed monitoring program addressing noise, bird strikes, complaints and operational matters (eg idle times etc) should be pursued.

Copies of this letter will be made available to other interested parties as necessary.

I expect that the matters I have raised will be fully canvassed with the AAT in due course."

It was in response to this acknowledgement by the Minister, that the Tribunal would be fully canvassing issues relevant to an EES, that the permit applicants were directed to undertake further detailed studies as suggested by the Minister as well as a more detailed visual impact analysis of the proposed wind power stations.

Due to delays related primarily to the archaeological survey and the consequent relocation of some of the turbines in response to that survey, the hearing of the appeals was deferred until Tuesday the 13th of October. In the meantime requests were received from the permit applicant to withdraw its appeal in relation to the Bridgewater Lakes' site and to formally dismiss the application in relation to Cape Nelson so leaving only the Cape Bridgewater proposal as the subject for review commencing 13th of October 1998.

By facsimile transmission dated 11th of September 1998, Mirimbiak Nations Aboriginal Corporation, on behalf of their client Christine Saunders, advised that Ms Saunders wished to withdraw her application for review in respect of the Cape Bridgewater site. Similarly, by facsimile transmission dated 7th of October 1998, Mr Ian Pausacker, Conservation Manager for the National Trust of Australia (Victoria), advised that the Trust also withdrew its objection to the Cape Bridgewater proposal, noting in particular that "the developer has agreed to enter into a formal agreement with the National Trust regarding certain issues relating to the development, and has made a commitment to include these conditions in the draft permit for the development".

By letter dated 7th of October 1998 Mr Michael Barlow, Director of A.T. Cox Consulting, wrote to the Tribunal advising, on behalf of the permit applicant, and in response to the agreement with the National Trust, that "Energy Equity Corporation Limited is prepared to accept the imposition of conditions of permit requiring the relocation of Turbines 12, 13 and 25 away from the environs of the Cape Duquesne walking track and the western end of Blowholes Road, and the imposition of a bird and bat monitoring program".

Attached to this letter was a copy of a modified plan which the Tribunal was advised had been forwarded to the remaining parties to the appeal, namely Ms Hislop and her co-applicants for review. Not withstanding the National Trust's withdrawal, it was very apparent during the hearing and from the evidence called by Mr Townsend, that the Local Branch of the National Trust was not consulted in relation to the negotiations with the permit applicant and, more importantly about the Trust's decision to withdraw its appeal. The Tribunal has grave concerns about this modus operandi by the Trust. In our opinion it tends to undermine the weight to be given to decisions of the Trust. To the extent that it is relevant, we have had regard to the views expressed by the Local Branch, not withstanding the withdrawal of the Trust's application for review.

At the commencement of the hearing, and in an endeavour to narrow the issues in dispute Mr Pitt tabled a revised set of planning permit conditions (Exhibit No. P1) these conditions included detailed requirements for construction of access roads to minimise the potential for soil erosion, for the implementation of a bird and bat monitoring program, for the pre-testing and if necessary rectification of television reception for nearby dwellings, for the setting of noise levels based on a New Zealand standard and for the reinstatement of the land to a natural state in the event of the wind power station ceasing to operate. In addition, the conditions provided for the submission of final plans detailing the final location of each of the wind turbine pads and setting the following limits on their location and dimensions:

* a minimum setback of 100m for all structures from the Coastal Reserve

* a minimum separation distance of 200m between the towers

* the maximum tower hub height above supporting footings to not exceed 47m with a blade length (radius) not exceeding 25m.

Mr Wilder for the Shire of Glenelg had no objection to these revised conditions - notwithstanding that the Notice of Decision to Grant a Permit had limited the tower structures to a height not in excess of 40m and with a blade not exceeding 20m in length.

The hearing proceeded on the basis of the proponent being willing to abide by the conditions as outlined in Exhibit P1 as well as on the basis of the dimensions set out in the conditions.

Location



Before proceeding to set out a detailed description of Cape Bridgewater itself it is useful to repeat Mr Wilder's description of Portland itself and its key attributes:

"The land the subject of this appeal is located at Cape Bridgewater within Glenelg Shire approximately 20 kilometres south west of Portland. Portland is a provincial rural city having a population of about 10700 with zoned land and infrastructure in place to support a population of 25000. Portland is characterised by urban and industrial areas adjacent to a deep water port and extensive rural hinterland. Glenelg Shire has the following key attributes.

* Deep water port located at Portland providing export facilities for timber, woodchips, sheep, cattle, fish, aluminium and grain from northern Victoria.

* World class aluminium smelting plant located at Portland which is the State's major consumer of electrical energy.

* Portland is the termination point of a major electrical transmission line and high pressure gas line. These facilities provide energy requirements for existing and future major industrial developments for the State.

* Extensive transportation networks including state highways, rail and airport facilities.

* Extensive State and private forestry plantations providing woodchips, sawlogs and other forest products for export and the local market.

* Extensive fishing industry providing products for export and the local market.

* Extensive pastoral and horticultural activities for export and the local market.

* Extensive National Parks, State Parks and Coastal Reserves which service an increasing tourist market.

* Rich heritage and cultural connections with Aboriginal relics and places and European settlement.

* A positive commitment to promote economic development, proper environmental management and community well being."

Cape Bridgewater forms part of a promontory between Bridgewater and Discovery Bays. The promontory consists of two headlands, Cape Duquesne, which overlooks Discovery Bay to the west and Cape Bridgewater, which overlooks Bridgewater Bay to the east and beyond, to Cape Nelson. For the purposes of this application, and in accordance with local practice, we will refer to the whole of the promontory as Cape Bridgewater. The view of the Cape from Bridgewater Bay is dominated by the up to 130m high cliffs which, we were advised, are among the highest, if not the highest cliffs in Victoria. This cliff forms part of the western rim of a once large volcano that occupied the area of Bridgewater Bay and the cliffs are the crater wall to that volcano.

In the elbow of land between the Cape and Bridgewater Bay is the small settlement of Cape Bridgewater township. This settlement nestles mostly at the bottom of the promontory rising gently towards the ridge line. The township comprises predominantly holiday accommodation which, for the most part, is well designed and constitutes the only element of disturbance in what is otherwise a natural - albeit cleared for grazing - landscape.

Discovery Bay, to the west of Cape Bridgewater, is bordered on its coastal side by magnificent, sweeping dune country and, closer to the Cape, the dunes are broken by a series of inland lakes known as Bridgewater Lakes.

Apart from Stony Hill, which at 130m is the top of the crater to the cliff volcano, and two other rises, referred to by Mr Williamson as Peacock Hill and Seven Oaks Hill which achieve heights above sea level of about 90m, the eastern side of the Cape plateau has a height above sea level of about 50m. The encircling with the cliffs, other than those below Stony Hill are being around 40 to 50m high. The plateau to the Cape is generally cleared grazing land with occasional stands of Moonah woodland, which is the native vegetation found in the Cape's western section The land is gently undulating.

Cape Bridgewater is important not only for its scenic beauty but for its cultural and scientific significance. For example, to quote from page 9 of the September 1998 final report on archaeological matters, prepared by Biosis Research and Cultural Heritage Group: "Midden sites within the region are of considerable scientific significance to archaeologists, as the oldest dated coastal (as opposed to freshwater) midden sites in Victoria occur at Cape Bridgewater". One site adjacent to the Great South-West Walk and on the southern side of Cape Duquesne is referred to at page 5 of the Biosis report as having been "assessed as being of very high scientific and Aboriginal cultural significance" with radio carbon dates from the site suggesting occupation between approximately 1,500 and 9,000 years before the present.

Post European contact heritage significance is also attributable to the Cape Bridgewater area and its associated bays. Sealing and whaling is known to have occurred in the area. Indeed the caves below Cape Bridgewater are the breeding ground for a colony of up to 40 fur seals which is the only surviving mainland coast hauling ground for these seals. The Henty family arrived in the Portland area in 1834 and subsequently established the first permanent settlement in Victoria. They had interests in both whaling and grazing and Edward Henty began grazing stock on Cape Bridgewater in 1835.

The geological significance of the Cape is also well recognised - primarily for its volcanic attributes but also for limestone or calceric impacts. Along the Great South-West Walk, which follows the clifftops of the Cape, there are on view such features as blowholes, the "Green Pool", sea caves, dissolved carbonates emerging from the cliff face and manifesting as stalactites, as well as an extensive area at Cape Duquesne referred to as the "petrified forest". The petrified forest is an area where columlar and branching calcrete stryuctures, over 1m high, have formed from enlargement and subsequent infilling of hollows and pipes in the dune limestone. This has left a very barren, almost other worldly landscape, giving the impression of being composed of old gnarled fossilised tree trunks.

The Great South-West Walk is a major tourist attraction within the area known as the Discovery Bay Coastal Park which is managed by Parks Victoria. In its Draft Management Plan of 1998, Parks Victoria describes the walk as follows:

"The other major tourist attraction in the parks is the Great South-West Walk. This loop walk of 240km, stretching from Portland to Nelson via inland and coastal routes, offers a variety of short and medium length walks (and some short sections of disabled access track). A series of camps allow visitors to do the whole walk over 12 to 15 days. The walk attracts groups and individuals seeking a challenge - many school groups come to the area specifically to walk sections of it.

The whole walk is promoted internationally under the slogan "A walk on the wild side", at events such as the Berlin Tourist Fair. It is attracting increased international tourist attention and use from overseas walkers, who are coming to Victoria specifically to do the walk. A separate strategy has recently been prepared for the future of the walk (NPS 1996b)."

The Great South-West Walk hugs the coast of Cape Bridgewater and the Tribunal was advised that the Land Conservation Council's special investigation into "Historic Places of South-Western Victoria (1996)" recommends that the walk be nominated for the Register of the National Estate. That Council also recommended that the cliff path to Freshwater Springs at Cape Bridgewater be included as a notable place. There is a camp site on the walk at Freshwater Springs.

Cape Bridgewater has been recognised by many agencies and bodies as being an area of outstanding natural beauty. The Cape is not only part of the National Trust of Australia Regional Classification for the Portland coastline but also has its own separate classification being listed as a part of the "physical environment, both of natural and manmade which in the Trust's view are essential to the heritage of Australia and which must be preserved". Extracts from the Trust's landscape citation for Cape Bridgewater include the following:

"* The majestic east coast cliffs are the crater wall of the larger volcano and provide an excellent opportunity to study the internal structure of a volcano.

* The clifftop sediments are quanternary dune limestones. In contrast to the clifftops, the lava base offers considerable resistance to erosion. Waiveattack advances along non-uniform lines of weakness. The blowholes, for instance, have formed in weaker scoriaceous lava. The result of the processes mentioned is the creation of a jumbled, a rugged, and what would appear a ruined landscape. That is, however, the essence of its quality.

* The geological history of the area (volcanic and recent sedimentary) is the basis of a landscape of dramatic coastal forms and subtle hinterland moulding which established the area as one of high scenic values.

* Both this hinterland and the coastline are, however, of superb visual quality. The undulating rural land contrasts boldly with the clearly defined and rugged cliff faces. The coastline contains many geological features of great interest to the more adventurous visitor - the blowholes, petrified forest and the green pool, all are geological remnants of a volcanic age which, when combined with the constant hounding of the ocean, become dramatic features of this magnificent coastline."

The National Trust is not the only body to have identified the visual quality of the Cape. In the "Coastal Appraisal - South-Western Coastal Planning Scheme Report" for the then Town and Country Planning Board, prepared by Tract Consultants Pty Ltd and dated September 1977, Cape Bridgewater is described as:

"The Cape Bridgewater area consists of a basaltic headland overlain by sand dunes and possesses exceptional landscape qualities, especially when strong westerly winds force waves onto the solid cliffs. The unusual windswept vegetation on the clifftops, along with caves and blowholes, endow this section with enormous potential for sightseeing. Consequently any form of development which will detract from the visual character should be resisted."

Under the heading "Uniqueness Factor", against which all parts of the south-west coast were assessed, Cape Bridgewater region is described on page 7 of Volume Two of the report as:

"The region is of outstanding national and international significance which is reminiscent of the highly acclaimed Point Reyes National Park, north of San Fransico in the USA." (Tribunal's emphasis)

The Tribunal's reading of this report reveals no other place along the south-western coastline which, on the uniqueness rating, is given an international significance. In the landscape unit, visual quality rating matrix, set out at pages 72 to 74 of the report, Cape Bridgewater receives a rating of 59, beaten only by a rating of 63 for the Twelve Apostles and an equal rating of 59 with Tower Hill. In other words, on a rating of the whole of the south-west coast's visual quality, this Cape came second only to the Twelve Apostles, applying the elements used in Tract Consultants' 1977 rating.

More recently, the May 1997 draft Volcanic Region Tourism Development Strategy assesses Cape Bridgewater as being of national significance as an outstanding example of internal volcanic structure and due to the coastline having "a number of rare coastal features, including sea caves, blowholes, solution pipes, tufa terraces and the "fossil forest" of rhizo-concretions. It provides a clear example of clifftop dunes stranded well beyond any sand supply and good sections of the unconformity between the basalt and dune limestone".

Finally, it is perhaps useful to quote from the Landscape Setting Types for the Victorian Coast - May 1998, published as part of the Victorian Coastal Strategy the aim of which is to "provide a better understanding of the landscape character of the coast by identifying significant features and characteristics of various sections of the coast. The identified landscape character should be considered and respected in the development of proposals for structures at specific locations in order to achieve an integrated development which is sympathetic to the surrounding landscape." In its introduction at page 3, the report on landscape setting types states:

"While the entirety of the coast is visually significant, there are some areas that are particularly unique, such as Port Phillip heads, Twelve Apostles at Port Campbell, Gippsland Lakes, the three Capes at Portland, the Great Ocean Road and the wilderness coast near Mallacoota Inlet to mention a few. These areas are particularly vulnerable to change in which values could suffer if subjected to intensive or inappropriate development." (Tribunal's emphasis)

At page 7 the three Capes - Bridgewater Lakes to Portland - are described as follows:

"Description

This dramatic far western area is characterised by high cliffs (higher than 18 metres) and wild seas. It is a zone of hard rock cliffs and rock platforms. The smeltering works intrude into the landscape close to Portland. It is, in the large part, a dramatic environment where industrial, wild coastal and more urban landscapes collide in an exciting way, with unstable semi-vegetated dunes on the west and stable, vegetated dunes on the eastern side. The eastern section of the setting type is visually dominated by the aluminium smelter plant west of Portland. Deep, leached sandy soils give rise to the low stringybark woodlands and heathlands. The area contains minimal settlement and is highlighted by the Cape Nelson lighthouse.

This area is highly visible from a number of critical view points including the lighthouse, Point Danger, Lawrence Rocks and Bridgewater Bay Beach area. The Great South West Walk passes through this area and offers unsurpassed views of the Southern Ocean and surrounding landscape.

The area is of outstanding scenic quality and requires special landscape protection.

Special Characteristics

* Cliff face landscapes are particularly sensitive to development.

* Extractive industry is visually unattractive in its present form west of Portland, although remediation is possible.

* Aboriginal middens need to be respected.

* Holiday development is encroaching on the Bridgewater Bay area and requires landscape overlay controls to protect this significant scenic area."

Proposal



It is proposed to site 33, pole mounted, wind turbines across much of the western and southern parts of Cape Bridgewater on individually owned crown allotments, the majority of which abut the Coastal Park Reservation. The combined area of these individual allotments is approximately 420 hectares. It is intended that the applicant company, Energy Equity Corporation, would lease that part of the land on which each turbine and its infrastructure is to be located. The individual lot owners would also have an interest in the power station as a whole. Each tower would sit upon a foundation or pad having a maximum diameter of approximately 3.2m. Accordingly, the current farm and grazing use of the crown allotments, on which the towers are to be sited, could continue to occur.

Each tower would have a hub height of approximately 45m. The suggested conditions of permit tendered by Mr Pitt suggested that this hub height would not exceed 47m. The hub would support three blades with a diameter of between 40 and 50m giving a maximum height of 72m. In the course of the hearing a height of 69m was generally understood to be the likely height of these structures. Applying 3m separation between floors, 69m is equivalent in height to a 23 storey building. According to the technical specifications for the Vesta V44-600kw turbines, set out in the material accompanying the application, the 45m tower would have a bottom diameter of 3m and a top diameter at the turbine hub of 2m. It is intended that the towers have a light grey paint finish.

The Tribunal was advised that a separation of at least 200m (5 to 7 rotor diameters) is required between poles and that the rotor blade is designed to spin at approximately 28.5 rotations per minute. The rotors will commence to spin only once wind speeds reach a speed of 4m per second and have sustained such speeds for at least 15 minutes.

The generating capacity of the proposed turbines would be in the order of 0.75 megawats (mw) per turbine with the wind farm having an overall theoretical capacity of approximately 25mw. The turbines are designed to run at maximum average wind speeds of 8m/s.

The turbines would be linked by 3m wide access tracks which would provide a maintenance, monitoring and construction purpose. Electrical connections would be laid beneath these tracks thus obviating the need for above ground power lines. All connections would lead to a point on Peacocks Road, approximately 1.3km north-west of the Cape Bridgewater village, at which point above ground connection, comprising three or four 66 kV strands located on 15m high power poles, would link the power station to the State wide electricity supply grid via Amos Road and Bridgewater Road. The Tribunal was advised that once the turbines were in place the access roads would be used for occasional maintenance purposes only and that the performance of the various wind turbines would be remotely monitored from a residence and control systems office on the north side of Blowholes Road towards the centre of the Cape plateau.

A little over one-third of the turbines would be sited at about 100m of the Coastal Reserve and, as a result, between 200 and 400m from the Great South-West Walk track which extends through that reserve. The next line of turbines back from the coast would be at approximately 600m from the track or 250m from Blowholes Road. Beyond this a scattering of turbines would occur into the Cape plateau and generally to the north of Blowholes Road. Blowholes Road is the principal thoroughfare extending east-west across the Cape and linking Bridgewater township with the car park at Cape Duquesne. This car park provides access to the track, the petrified forest and the blowholes observation platform.

The Tribunal was advised that, operating at anticipated design speeds, this 33 turbine wind power station, given the size of the turbines, would be capable of generating sufficient power to supply electricity to approximately 12,500 typical Victorian households (based on 5,600kWh per household per annum). We note that this would be the approximate number of households projected for Portland based on current zoned land and infrastructure.

At page 12 of a report circulated prior to the hearing and prepared by Colin Crawford-Smith, on the wind farm's potential contribution to greenhouse gas emission reduction and the Commonwealth's renewable energy targets, it is suggested that using the Victorian energy generating pool the proposed use could reduce greenhouse gas emissions by a total of 81,200 tonnes, on average, every year. A typical Victorian household, using 5,600kWh of electricity per annum, will release about 6.4 tonnes of greenhouse emission (CO2) to the atmosphere every year - based on the average Victorian pool emission factor of 1.16kg/kWh.

The Tribunal was advised that there is no other wind power generating station in Victoria and none within Australia of the size or scale proposed here. The largest wind power station is at Esperance in Western Australia where, due to Esperance not being connected to the State grid, the wind turbines supplement a diesel generated power station. Wind power is generated at two locations at Esperance. The older wind farm is at Salmon Beach and was connected to the town grid in April 1987. It comprises six turbines with a tower height of 22m and a rotor diameter of 16m. When first established the farm was on the periphery of the town and away from any housing estates. However in recent times adjacent land has been developed for residential purposes with some dwellings located very close to certain of the six turbines.

The 10 Mile Lagoon wind farm was established in October 1993. It comprises nine, 31m high towers with 13.5m long rotors and is located approximately 16km from Esperance. According to Mr Barlow's evidence, 10 Mile Lagoon is considered to be one of the most efficient wind farms in the world given the continually high winds - averaging 7.5m per second - found at the site.

The Great Ocean Drive is a tourist road, 38km in length, which provides access to the coastline around Esperance and was described by Mr Barlow as a "spectacular scenic drive". The 10 Mile Lagoon turbines are set some 1km inland from the Great Ocean Drive. At page 25 of Mr Barlow's report reference is made to the environmental review conducted prior to the establishment of the 10 Mile Lagoon wind farm. At page 26 the following statement is made:

"The assessment of the potential visual impact looked at various tourist locations around the proposed wind turbines and determined that many of the popular view points were approximately 6 to 10km away from the subject area, and the visual sensitivity was therefore determined as being medium, ie. there were few areas along the tourist road where the wind farm would be visible in the foreground and again very few areas directly in front of the viewer as they were travelling around the tourist road."

Taken together the Esperance wind farms can meet up to 17 percent of the energy needs of the Esperence district. A difficulty of not being connected to the State grid is that the diesel power station must remain viable in order to cope with those periods when wind is not blowing. The subject proposal would inject power into the Victorian State grid, thus supplementing the overall Victorian supply. A similar approach has been adopted recently at Crookwell, in New South Wales, where eight turbines of the same dimensions as those proposed in the subject application, were established in 1998. These eight turbines are capable of generating up to five megawatts - a quarter of that sought at Cape Bridgewater.

Planning Controls and Policy Framework



Prior to setting out a detailed description of the existing and proposed planning controls affecting this land, and the statutory matters for consideration in respect of such a proposal, it is useful to draw attention to the fact that the emphasis of most existing and proposed controls, policies and strategies is on the preservation and enhancement of the scientific and natural landscape values of this section of coastline. Reference to the need to reduce greenhouse gas emissions and as a consequence, Victoria's dependence on fossil fuel generated power supplies, is less prominent. As may become clearer later, we have not taken this absence to imply that any less weight should be given to the very important objective of reducing such emissions. Rather, the issues in review are whether the proposed use will detract from the Cape's scientific and landscape values and, if so, whether this loss would be outweighed by the benefits which would accrue from such a renewable energy facility.

The area within which these wind turbines are to be located is affected by the Heywood Planning Scheme. The purpose of the local section of this Scheme is set out at Clause 103 and includes the following:

"* Develop the planning area for the foreseeable future predominantly for rural purposes and requiring therefore the maintenance in farming use of the majority of existing rural land and the protection and enhancement of rural amenity.

* Recognise and protect areas of scientific, historical or natural interest, areas of natural beauty or particular landscape value and other areas of importance.

* Recognise the need for opportunities for other complementary general uses including tourism and recreational use.

* Ensure efficient use of public utilities and the extension and improvement of public utility installations in an orderly and economically rational basis."

The Crown Allotments on which it is proposed to place these wind turbines are zoned Rural 2 under the Planning Scheme. The purpose of this zone is:

"* To encourage the continuation of existing land uses within the zone.

* To protect the special landscape and environmental features of the zone.

* To facilitate the long term protection and maintenance of the existing coastal environment ...

* To consider for consent only those developments and uses which are sensitive to and compatible with any landslip, erosion, steeply sloping or other special soil conditions and with the scenic landscape character, which occur throughout the zone.

* To prevent subdivisions, developments, uses and activities inconsistent or incompatible with the intent of the zone."

A wind power station or wind farm is an unspecified use in the table to the zone. As such a permit is required for the use and for any development associated with that use. The Coastal Reserve at both Cape Duquesne - where the blowholes and petrified forest are located - and Cape Bridgewater, the south easterly tip of the Bridgewater Promontory, have been identified in Schedule 4 of the Planning Scheme as Sites of Special Scientific Interest. (Notations G5 and G6). Clause 215 sets out controls for such sites. The purpose of this clause is

"To protect and preserve Sites of Special Scientific Interest within the planning area. In considering an application for a permit affecting land within or adjacent to such sites the responsible authority must, among other things have regard to:

* the effect of the proposed use on the integrity and long term conservation of any site of Special Scientific Interest;

* the impact and visual effect of buildings and works upon the landscape;

* any alternative means of locating proposed buildings and works so as to conserve and enhance the site of Special Scientific Interest; and

* consultation with persons or bodies skilled in the assessment and management of features of scientific interest."

Clause 105-1 of the scheme sets out matters which the Responsible Authority and therefore this Tribunal on review must consider before deciding on an application:

"* The purpose of this local section and of any zone, reserve or special control area in which the land is located

* The size and shape of the parcel of land to which the application relates, the siting of the proposed development and the area to be occupied by the development in relation to the size and shape of the land and adjoining land and the adjoining development. ...

* The effect of any State policy for planning and any State environment protection policy relevant to the application.

* The circumstances of the case and the public interest.

* The siting and design quality of all buildings and works and their suitability for the use proposed.

* Effect on the visual amenity and landscape or streetscape of the area. ...

* Any matters required to be considered under this Scheme."

(Tribunal's emphasis)

Clause 105-2.5 of the Scheme requires notice to be given to the Regional Manager, Department of Conservation and Environment, of any application for development within 1km of, among other things any National, State, Regional or Coastal Park. Mr Wilder advised that such notice was given. By letter dated 17 November 1997 the now renamed Department of Natural Resources and Environment advised that the material had "been forwarded to the relevant Departmental functions for comment". This Department has responsibility for parks and for the Victorian Coastal Strategy. By letter dated 19 November 1997 Mr Nicholas Wimbush, Executive Officer of the Western Coastal Board -one of three regional coastal boards that support the Victorian Coastal Council which has responsibility for the Victorian Coastal Strategy - advised in relation to the three sites then under consideration:

"There was considerable discussion about the project centred around the obvious benefits of renewable energy production and the need to support this industry. However, the landscape values of the sites being considered make the issue more complex.

It appears that visual impact on the landscape is the major issue associated with the proposed windfarm(s). The visual impact of the farms at any of the three locations will be significant given the size of the towers, the degree of impact being dependant on a number of factors including tower location, viewer location and the sensitivity of the viewer.

The Board feels that the visual impact of the three locations should be further investigated to give a better comparison between the sites and to enable a clearer comparison between the existing landscape and the altered landscape. One particular area of concern relates to the impact on the Great South West Walk of the Cape Bridgewater site. The impact of the windfarm o this walk should be evaluated in terms of its potential for tourism growth.

The Board is also interested in the issue of alternative sites in the region. Was a detailed investigation of other sites, both inland and coastal undertaken? The Board is not pretending to be expert on these issues but hopes alternatives were canvassed.

The other issue discussed was that of consistency with the soon to be released Victorian Coastal Strategy. On face value it can be argued that the windfarm is major development outside of an activity node and thus should not be supported. However, given the environmental benefits of the technology and other community benefits, the issue is not as simple as this. Consequently the Board will be referring the windfarm proposal to the Victorian Coastal Council for their consideration." (Tribunal's emphasis)

No further submissions from the Department were received. However, in separate letters to the Applicants for Review, and dated 30th July 1998 and 24 September 1998 respectively, Ms Dianne James, Chairman of the Victorian Coastal Council and Ms Michonne Van Rees, Acting Executive Director - Parks and Flora and Fauna - the latter replying on behalf of the Hon. Marie Tehan MP, Minister for Conservation and Land Management - made the following observations in respect of the proposed wind form, (omitting formal parts):

D. James



"The Victorian Coastal Strategy encourages the identification of significant features on the coast and responsible decision making to minimise adverse impacts on these features or values. Council has expressed support for the development of alternative energy systems which offer broad environmental benefit, such as wind powered generators, however the design and siting of such facilities needs to take into account the potential impact on coastal values.

Council is aware that a number of planning appeals have been initiated against the decision of the Shire Council to issue a planning permit for the proposed development. Council is confident that the Administrative Appeals Tribunal will take into account the principles and directions established in the Victorian Coastal Strategy and other relevant considerations such as the Siting and Design Guidelines and Landscape Units reports recently published by the Victorian Coastal Council, which I am sure will be raised with the Tribunal by parties to the appeal.

Council will be watching with some interest to see the outcome of the current process."

M. Van Rees



"I am replying on behalf of the Minister.

The Victorian Coastal Strategy (VCS) encourages the identification of significant features on the coast and responsible decision making to minimise adverse impacts on these features or values. As you indicate in your letter, the far south west coast does have significant natural, cultural and landscape values and these are recognised in the VCS and supporting Landscape and Siting Guidelines which have been developed for the coast. The VCS also supports the development of ecologically sustainable alternative energy systems but these obviously need to be sited having regard to a range of potential impacts including visual, noise, flora and fauna etc.

The VCS has been endorsed by the State Government and it is to be expected that serious consideration will be given to the Strategy by the Victorian Civil and Administrative Appeals Tribunal in any appeals relevant to issue, and by the Shire in concluding their planning scheme. These mechanisms are some of the ways that effect can be given to some aspects of the VCS and I am confident that the appeals process will provide opportunity for all relevant issues to be considered." (Tribunal's emphasis)

The Tribunal is disappointed that these departments or organisations, despite their obvious interests in relation to the impact of this proposal, chose to adopt such a "wait and see" approach to the Tribunal's deliberations. In our view it would have been appropriate for the Department or Coastal Council to have been represented at the hearing and to have expressed an opinion on the issues under review.

Section 60 of the Planning and Environment Act sets out matters which the Responsible Authority, and therefore this Tribunal on review, must or may consider. The Responsible Authority must consider "any significant effects which the Responsible Authority considers the use or development may have on the environment or which the Responsible Authority considers the environment may have on the use or development". If the circumstances appear to so require the Responsible Authority may consider:

"(i) Any significant social and economic effects of the use or development for which the application is made; and

(ii) Any strategic plan, policy statement, code or guideline which has been adopted by a Minister, Government department, public authority or municipal council; and

(iia) Any amendment to the planning scheme which has been adopted by a planning authority; and

(iii) Any other relevant matter."

In addition to the matters set out at Section 60, Section 84B of the Planning and Environment Act sets out matters which the Tribunal in particular must take into account. These include the following:

"(a) Must take into account any relevant planning scheme;

(b) Must have regard to the objectives of planning in Victoria ...

(f) Must (where appropriate) have regard to any amendment to a planning scheme which has been adopted by the planning authority but not, as at the date on which the application for review is determined, approved by the Minister."

The invitation at Sections 84(B) and 60 of the Act, to have regard to any planning scheme amendment adopted by a planning authority and to have regard to any policy statement, code or guideline adopted by a Minister or Government department introduces, as relevant matters for consideration in the subject proposal, the draft Glenelg Planning Scheme as well as the now adopted Victorian Coastal Strategy and supporting guidelines. The invitation to consider "any other relevant matter" would, we suggest, enable consideration to be given also to Australia's commitment, under the Kyoto Protocol signed in April 1998, to limit greenhouse gas emissions growth to 8% above 1990 levels by 2008-2012. It is relevant also that the Commonwealth Government has indicated that the energy sector is a major focus for such reduction methods.

The Glenelg Planning Scheme, which would supersede the existing Heywood Planning Scheme, and which adopts the Victoria Planning Provisions (VPP) format has passed its panel assessment stage, has been adopted by the Council and is now awaiting Ministerial approval. The originally exhibited controls for Cape Bridgewater were the Rural Zone with an Environmental Significance Overlay. In view of its consideration of submissions the Panel recommended that the Cape be rezoned Environmental Rural with a Significant Landscape Overlay. The Council, in adopting the Scheme, incorporated the Panel's recommendations.

In making its recommendation for more environmentally sensitive controls, the Panel had stated:

"The purpose of the Environmental Rural Zone is to give effect to the environmental outcome specified in the Schedule to this Zone. In the case of this area, that outcome would need to be carefully described to recognise the full extent of significance of the area, which includes its environmental significance, landscape, vegetation and soil structure. However, the purpose of the Environmental Rural Zone is also to encourage development and use of land which is in accordance with sound management and land capability practices and takes into account the environmental sensitivity and the biodiversity of the locality."

The Panel concluded its comments on the change in zoning by noting:

"Thus, in this locality, whilst the land is agricultural land and can continue to be used for this purpose, nevertheless this use and other use and development must be carefully managed to ensure that the very special qualities of the area are not jeopardised." (Tribunal's emphasis)

The purpose of the Environmental Rural Zone includes:

"To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To give effect to the environmental outcome specified in the schedule to this zone.

To conserve and permanently maintain flora and fauna species, soil and water quality and areas of historic, archaeological and scientific interest and areas of natural scenic beauty or importance so that the viability of natural eco-systems and the natural and historic environment is enhanced.

To encourage development and the use of the land which is in accordance with sound management and land capability practices, and which takes into account the environmental sensitivity and the bio-diversity of the locality.

To ensure that subdivision promotes effective land management practices and infrastructure provision." (Tribunal's emphasis)

The purpose of the Significant Landscape Overlay control includes:

"To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To identify significant landscapes.

To conserve and enhance the character of significant landscapes."

The matters which the Responsible Authority is required to consider, having regard to the purpose and objectives of the Significant Landscape Overlay control include:

"* The statement of the nature and key elements of the landscape and the landscape character objective contained in a schedule to this overlay.

* The conservation and enhancement of the landscape values of the area.

* The impact of the proposed buildings and works on the landscape due to height, bulk, colour, general appearance or the need to remove vegetation.

* The extent to which the buildings and works are designed to enhance or promote the landscape character objectives of the area.

* The impact of buildings and works on significant views.

* Any other matters specified in a schedule to this overlay." (Tribunal's emphasis)

The State Planning Policy Framework of the VPP, which forms part of the new Scheme, includes a Coastal Planning Policy (Clause 15.08), the objective of which is:

"In coastal areas, to assist the protection and maintenance of significant environmental features and sustainable use of natural coastal resources."

The policy requires that land use and development planning be co-ordinated with the requirements of the Coastal Management Act 1995. The Victorian Coastal Strategy was adopted in November 1997. It was prepared by the Victorian Coastal Council appointed under the Coastal Management Act, as the peak body for strategic planning and management of the Victorian coast and to provide advice on coastal issues to the Minister for Conservation and Land Management. The strategy seeks to improve the environmental health of the coast, to protect significant environmental features, to provide clear direction for future use of the coast and to identify suitable development areas and opportunities along the coast. These are described as the principles for coast and marine management under the headings: Sustain, Protect, Direct and Develop.

It is quite apparent that the Victorian Coastal Strategy has not considered wind powered generation as a possible development opportunity along Victoria's coastline. As a result, no sites have been identified for this use. Rather the emphasis has been on identifying activity nodes within which future development is to be confined so enabling areas outside those odes to be conserved. As stated earlier the three Capes near Portland are identified in the Landscape Setting Types Guidelines which accompany the strategy and are listed in the introduction to that document as being among those features of the Victorian coastline which are "particularly unique".

A future initiative, described at Part 2.2 of the strategy, is to establish a Sensitive Sites Register to protect against inappropriate development. The strategy states that this register is to "take account of existing information and data bases" and be augmented for:

"* sensitive historic, geo-morphological, environmental and cultural areas,

* unstable areas subject to marine erosion, inundation and landslips,

* areas of high visual integrity,

* wilderness and remote areas."

The Municipal Strategic Statement (MSS), which forms part of the Local Planning Policy Framework of the new Glenelg Scheme, suggests that land use planning and development in the Shire will be dominated by a number of elements (Clause 21.05), including:

"The profile of Portland, the surrounding area and the whole Shire with assets such as:

* Natural resources, particularly ground water, geo-thermal energy, wind energy and gas and oil potential. No other regional area in Victoria possesses such a variety of energy resources.

* Spectacular, wild and natural coastal scenery and landscapes."

(Tribunal's emphasis)

The environment policy (Clause 21.09-4) of the MSS seeks to retain landscape values of the coastal and rural areas. The tourism policy (Clause 21.09-2) of the MSS seeks to:

"* Further promote the rugged coastline and environment as an alternative destination - this theme to be linked in with the Great South-West Walk.

* Promote the natural environment as a key theme for the Shire."

(Tribunal's emphasis)

The coast is recognised in the MSS as a major asset and a specific objective for the coast (Clause 21.10-4) recognises it as a major resource with objectives for maintaining recreation and tourist assets.

The draft Planning Scheme also contains a specific local policy on coastal areas (Clause 22.02-4) which includes the following objectives:

"* To protect the natural and cultural values of the coast.

* To use and develop the coast in a sustainable manner.

* To share responsibility for the integrated management and protection of the Coastal Zone."

Issues



The issues for determination in this review were many and varied. However, the principal issue is that of the visual impact and whether the benefits of such a "green energy" facility could be said to outweigh the visual impact. As will become clear we have been unable to find that at this particular location the benefits would outweigh the considerable visual impacts of the proposal. It follows therefore that the proposal must fail due to its inability to clear this not inconsiderable, first hurdle.

Before setting out our findings in relation to the visual impact we think it appropriate to deal briefly with the other issues in review.

Noise



Noise emitted by the turbines was clearly the second most disputed issue in review. Indeed, apart from visual impact it was the only matter on which expert evidence was called by the objectors.

Put briefly, two types of noise emissions are in contention with this technology - mechanical noise and aerodynamic noise. There was clear evidence, particularly in relation to earlier wind farming ventures in the USA and Great Britain, that mechanical noise had been a problem in the past. We were satisfied from the evidence from all expert witnesses, including Mr Hutchinson, that this has been all but eliminated and is no longer a matter for concern.

The other noise emission is that of the wind passing over the blades which results in a "whooshing" sound. This sound will occur only when the blades are moving and therefore only when the wind is blowing. It is generally agreed that at high wind speeds the background or ambient sound of the wind will mask the whooshing sound of the rotors. The principal issues about which Messrs Goddard and Fearnside were not in agreement revolved around the "character" of the whooshing at wind levels high enough to turn the rotors but not high enough to produce a background level which masked the whooshing sound.

The permit applicant had indicated a willingness to be held, by way of a planning permit condition, to the noise levels set in New Zealand Standard NZ56808:1998 - The Assessment and Management of Sound From Wind Turbine Generators. This very recently adopted noise standard is one which the relevant Australian authorities have been involved in the preparation of. At Section 5.3, the standard recognises that "sound from a WTG (wind turbine generator) that has special audible characteristics (clearly audible tones, impulses, or modulations of sound levels) is more likely to arouse adverse community response at lower levels than sound without such characteristics". The standard suggests that a 5dB(A) penalty should be applied to adjust for "special audible characteristic", where these exist. The British ETSU Report (Exhibit P27) on the Assessment and Rating of Noise From Wind Farms also recognises the need for such penalties (see page 67).

The tests undertaken by Mr Fearnside of the two wind turbines on King Island demonstrated, to his satisfaction, that wind noise masked any turbine noise, including tonal or other characteristics. Whilst we found much of Mr Fearnside's evidence to be persuasive we are aware that the King Island turbines are different - both in output and dimensions - to those proposed here. Accordingly we could not be certain from his evidence that special audible characteristics could be ruled out for the proposed turbines. There could be a prospect therefore that at the two dwellings on Lots 29 and part 25, located closest to the turbines and where Mr Fearnside anticipated sound levels of 2dB(A) below the New Zealand standard, the standard may not be complied with if a 5dB(A) penalty is imposed. Nonetheless we are confident that this issue could have been addressed by different siting or indeed elimination of turbine locations.

Electro-Magnetic Interference



A report by Design Power New Zealand Limited was circulated prior to the hearing. The report's principal finding was that interference with television reception might occur at houses within a few hundred metres of the turbines but that remedial measures were possible. In view of the permit applicant's agreement to be bound by a condition requiring remedial measures, should pre- and post-testing show impacts, we are confident that EMI impacts are not a reason for rejecting this application.

Ground Vibration



A further Design Power report was commissioned on the issue of ground vibration and was also circulated prior to the hearing. The Tribunal understands that some concerns were expressed in relation to vibration having impacts upon caves and the fossilised forest features within the area.

The report found that vibration from turbines would be of similar magnitude to that caused by natural events such as wind blowing on the ground and surrounding trees. We are confident therefore that this is not an issue of relevance here.

Track and Pad Construction



The evidence of Mr Buckingham, former City Engineer for Portland, was that soil erosion and dune blowouts would not occur if a simple crushed limestone over ground, track construction was adopted. He saw little need for track excavation and felt confident, given the low use of the tracks following construction, that these would soon attain a grassed over, non-intrusive visual appearance.

Whilst acknowledging the concern of objectors that in particular areas - notably where dunes are located - care would need to be taken, we are confident that the impacts of track and pad construction are issues which could be appropriately dealt with by way of permit conditions.

Fauna and Flora Impacts



The Biosis Research Pty Ltd report on Flora and Fauna Values, acknowledges that it "does not fully assess impacts of the proposed development since no detailed flora or fauna surveys were undertaken". The report nevertheless concludes that the only potential threat from this proposed facility could be bird and bat strikes. Raptors (eagles, falcons etc) are suggested to be the most likely victims as the lack of any nearby wetland habitat reduces the chances of large water birds being within the area. The report concludes however that the likely levels of mortality would be low compared with mortality from other sources such as overhead power lines. The report recommends, nevertheless, that a monitoring program to assess the impact on birds and bats should be instituted. This, it would appear, is more to aid in future research into wind farm practice than to prevent bird or bat deaths at the subject site.

The permit applicant was prepared to abide by a condition requiring the monitoring of bird and bat strikes. We are generally of the view that impacts on endangered fauna are unlikely to be so significant at this location as to outweigh the benefits of a wind farm. We think however that a survey to determine whether the Cape plays host to any particular pairs or groups of endangered species should have been undertaken in order to enable consideration to be given to the relocation of such individuals.

Archaeological Impacts



The archaeological assessment resulted in changes being made to the siting of a number of the turbines in order to avoid zones found in the report to be likely to have high aboriginal archaeological sensitivity. The report also recommended how future detailed surveys should be conducted once turbine sites and access tracks were more firmly understood. In view of the recommendations for future survey work, Mr Pitt advised that the permit applicant would abide by the following permit conditions:

"1.1 Prior to each excavation for the development, the area top be disturbed will be subject to a surface survey to locate, record and assess aboriginal sites, places and objects.

1.2 If no relics are found and the are to be disturbed has poor ground surface visibility, a sub-surface survey shall be undertaken.

1.3 Areas to be surveyed shall include all land likely to be affected by the development, (including all associated construction works, such as new access roads, underground cable routes, buildings and services).

1.4 The person undertaking the development shall undertake and fund the said surveys and any consequential archaeological investigations and/or site protection works.

1.5 All archaeological work will be undertaken by a qualified archaeologist in conjunction with a representative of the Kerrup-Jmara Elders Aboriginal Corporation.

All to be to the satisfaction of the Responsible Authority.

2. Prior to the disturbance of any identified aboriginal site, place or object, the applicant must obtain written consent to disturb from the Kerrup-Jmara Elders Aboriginal Corporation as required under Part 11A of the (Commonwealth) Aboriginal and Torres Strait Islander Heritage Protection Act 1984."

Ms Christine Saunders, an original appellant, had been represented by the Mirrimbiak Nations Aboriginal Corporation, a Commonwealth agency responsible for the pursuit of native title claims on behalf of aboriginal people in Victoria. In his submission to the Tribunal, Mr Thomas Richards, for Aboriginal Affairs Victoria, was concerned to point out that in so far as aboriginal heritage protection legislation is concerned, native title claimant organisations are not the relevant body with responsibility for local aboriginal heritage protection matters. The relevant community organisation for the Cape Bridgewater area is the Kerrup-Jmara Elders Aboriginal Corporation.

In accordance with accepted practice for undertaking aboriginal archaeological investigations, the Kerrup-Jmara Elders Aboriginal Corporation was contacted prior to the archaeological investigation of the wind farm sites and a representative was present during the field work. A copy of the draft report was also forwarded to the Corporation for comment and consultation between the consultant and the Corporation was on-going.

Mr Richards noted that in Mr Barlow's written submission confusion existed between the identify of the various aboriginal associations. Mr Richards was concerned that the Tribunal be made aware of these differences. He expressed concern also that negotiations between the proponent and the Mirrimbiak Nations Aboriginal Corporation, acting for Ms Christine Saunders, may have resulted in protocols being developed which set less rigorous heritage management standards than were recommended in the Biosis Investigation and supported by the Kerrup-Jmara Elders. Appended to Mr Richards' submission was a set of permit conditions which he suggested better reflected the recommendations of the archaeological investigation report:

"1. The use authorised by this permit shall not commence, and no works may be undertaken, until the following requirements have been met to the satisfaction of Aboriginal Affairs Victoria and the Responsible Authority:

(a) The applicant is to fund an impact assessment survey to locate, record and assess Aboriginal sites, places and objects on the proposed wind farm. This survey will be in two stages, the first being a surface survey of all land likely to be affected by the development, including land which may be disturbed by associated construction works such as new access roads, underground cable routes, buildings and services. The second stage will comprise a subsurface survey of all areas identified as having poor ground surface visibility in the first stage; and

(b) The applicant is to undertake and fund any additional archaeological investigations and/or site protection works which may be recommended as a result of the above-mentioned impact assessment survey, subject to the endorsement of such recommendations by Aboriginal Affairs Victoria; and

(c) All archaeological work will be undertaken by a qualified archaeologist in conjunction with a representative of the Kerrup-Jmara Elders Aboriginal Corporation; and

2. Prior to the disturbance of any identified Aboriginal site, place or object, the applicant is to seek and obtain written consent to disturb from the Kerrup-Jmara Elders Aboriginal Corporation as required under Part IIA of the (Commonwealth) Aboriginal and Torres Strait Islander Heritage Protection Act 1984."

The Tribunal appreciates the efforts of Aboriginal Affairs Victoria in clarifying the various relevant groups and agencies. We find however that the conditions agreed to by the permit applicant are in essence little different to those suggested by Aboriginal Affairs Victoria. The principal variation lies in the inclusion of Aboriginal Affairs as an additional agency to be "satisfied" about the nature of the future impact assessment surveys and for it to have a power of veto over additional archaeological investigations and on-site protection works. The Tribunal accepts the lead agency role of Aboriginal Affairs Victoria in these matters and agrees that it should be so included in any permit conditions.

Visual Impact



The principal issue for review centred upon the appropriate weight to be given to the benefits which would accrue from such a renewable energy facility compared with the disbenefits in terms of the visual impact on the significant landscape values of Cape Bridgewater.

As with many natural resources, wind can be harnessed for power only where the wind resource is available. To this extent it can be suggested that wind power stations have similarities with other resource based activities such as mining and extractive industry.

Cape Bridgewater benefits not only from the high quality of its wind resource but also its relative accessibility for construction and maintenance purposes and its proximity to the State electricity grid. It is, it seems, an ideal location for a wind power station. Indeed in Mr Pitt's submission it is the only location in Victoria where the exploitation of wind energy can compete with Victoria's relatively low cost, brown coal generated power stations.

In quarrying and mining cases which have come before this Tribunal and its predecessors, the Tribunal has often acknowledged that the nature of such natural resources is that they can be exploited only where they exist on the ground. Unlike most other industries they cannot be moved to less scenic or more appropriate locations. Accordingly, if those locations are in areas of natural beauty, then short of refusing such proposals, particular effort must be made to screen or so conduct the activity in order that it has a reduced visual impact.

In the case of a wind power station it is not practicable or possible to screen the turbines. By their very nature they need to be exposed. However, visual impact minimisation strategies may be possible, including the following:

* Extreme isolation whereby the number of persons affected is very limited - invariably however this would preclude grid connection and road accessibility.

* Use of topography, for example by siting the turbines such that foreground features obscure views from most vantage points. Mr Barlow's photographs of Ten Mile Lagoon at Esperance, taken from the Tourist Road on the coastal side of that wind farm, demonstrated this.

* Where the turbines are sited within an already disturbed environment, especially one comprising large structures such as petrochemical plants, smelters etc. - in other words, in the same way that very large advertising sign "spectaculars" can be said to be suitable in precincts comprising large built form elements.

Another approach to the siting of such structures is for them to complement the landscape or make their own visual and perhaps even dramatic statement. It is apparent that much effort has gone into the design of these structures in an endeavour to obtain an uncluttered appearance. Examples which come to mind of strong simple structures in the landscape include the approximately 30m high light towers along the median of Melbourne's Eastern Freeway. Compared with the light fittings on the more recently constructed extensions to that Freeway, the earlier light towers make a strong and we suggest attractive visual statement visible for long distances and which seemingly trace or give visual form to the alignment of the Freeway - even when the road surface is not visible. Similarly, large man made structures can give focus to a landscape - examples include bridges, viaducts, astronomical telescopes and lighthouses.

The visual impact assessment by Mr Barlow adopted more of the second approach outlined above which we might refer to as the "show it don't hide it approach". He stressed the clean lines of these structures and the possibility that they may strengthen the visual experience of the Cape by adding a further dramatic element. He suggested also that within the central plateau area of the Cape, as viewed from Blowholes Road, the Cape's significant coastal landscape values were not apparent. He suggested that if wind farms are to form part of Victoria's rural landscapes of the future, the community must come to accept their existence in such non-spectacular, rural locations.

Having regard to the novelty and seemingly wide community support for wind energy, it was Mr Barlow's opinion also that these 33 or so turbines might prove to be an added tourist attraction and as a consequence, provide economic benefits for local tourism operators. He cited how in Esperance, the two wind farms now hold a firm place in the list of local tourist attractions. Mr Barlow noted also how, when viewed from Bridgewater Bay and in particular from the beaches adjacent to the township, all but the upper blades of one or two of the turbines would be obscured from view by the higher foreground of Stoney Hill and Peacocks Hill.

We accept Mr Barlow's evidence in relation to the visual impact of the turbines when seen from the Bridgewater Bay side of the Cape. In our opinion the extent of visual intrusion from this location would not be so significant as to detract from the Cape's landscape qualities. The greatest extent of turbines visible from this side would be on a line with the township where, it can be said, there is already an element of disturbance in the landscape.

We also accept that if wind farms are to have a role in reducing fossil fuel dependence then, as with high voltage power transmission lines, society will need to accept or at least tolerate their visual impact within rural areas. In this regard we accept that the upper plateau of the Cape is no more special than many typically rural areas. We agree also that at least in their initial stages wind farms are likely to draw visitors interested in understanding this relatively new technology.

However, notwithstanding their uncluttered aerodynamic lines we do not accept that these turbines will in any way enhance the visual experience of the Cape when viewed from the Coastal Walk in particular or from further west along Discovery Bay.

In our opinion the number of turbines, their cluttered arrangement and their extremely large size (larger than any at Esperance and King Island, as well as the European examples seen by the Tribunal) is such that the wind farm would have a disturbing visual impact on the significant landscape values of the Cape. Put simply it would be impossible to avoid seeing them for most of the Cape Walk and they would distort the Cape's visual appearance.

A few turbines, perhaps six or eight, especially ones having dimensions similar to those witnessed by Mr Barlow at Salmon Beach, might be able to sit somewhere in this landscape and provide an added "feature" in the already wide range of experiences available. Such a modest number might serve in some way to provide tangible evidence of the Cape's high wind regime, so reinforcing an aspect of its natural attributes. However, 33 would in our opinion dominate and thereby detract significantly from the experience of walking and viewing this Cape.

The cross-section analysis of visibility undertaken by Mr Williamson was, we think, persuasive. It clearly demonstrated the extent of visual intrusion which various of the turbines would have when viewed from points along the Coastal Walk. We do not accept Mr Barlow's opinion that the walker's eye is drawn out to sea and that the land side of the walk is less of a significant feature or outlook to preserve. In the Ten Mile Lagoon case, where the Tourist Road is on the coastal side of the wind farm and with higher topography in the foreground it may be that the eye is drawn more towards the coast. However, in undertaking the Cape Bridgewater walk we found the changes in direction to be such that both sides of the pathway were important in reinforcing the visual experience. Only rarely would the immediate foreground dunes conceal the broader views of these 69m high structures.

We were persuaded by the documentary evidence, our own inspection and the Local Planning Policy Framework of the Glenelg Scheme that the Great South West Walk is an important and significant facility for Victorians and visitors to Victoria and that it represents a important local initiative, the integrity of which should be preserved and enhanced. Furthermore, as was stressed by so many of Mr Townsend's witnesses, the Cape Bridgewater section of the walk represents a high point and one where the special emphasis is on a wild and natural beauty which for the most part, is uninterrupted by man-made intrusions.

Unlike the coastal tourist road at Esperance, the visitor moves slowly along the Great South West Walk, taking in its complicated array of natural features in more detail than as a car passenger. We have noted also that the environmental impact assessment for Ten Mile Lagoon recognised the need for turbines to be kept out of coastal views from significant vantage points. The twists and turns of the coastal walk preclude such a separation.

Viewed from Discovery Bay, albeit at distances in excess of 5km from the Cape, the turbines would appear taller than the cliffs surrounding the Cape and it is these cliffs which at present constitute the dominant feature. Unlike from Bridgewater Bay the turbines would not be screened by a higher foreground or be set against an already disturbed landscape. Furthermore, views from this side can often be at a higher level than the Cape so that more of the turbines are visible. Accordingly, from this side, the natural landscape values of the Cape would be significantly altered. Unlike a lighthouse which, as a single structure can focus the eye on the tip of a cape, providing a visual counterpoint to the landscape, these wind turbines would have a cluttered effect which would distort rather than complement the lines of the promontory.

Having found that this wind power station would have significant visual impacts we must still decide whether the environmental benefits of wind generated power warrant the putting aside of the existing and proposed planning schemes' clear direction to protect and enhance the Cape's landscape values. Could the "sacrifice" of the landscape values of this Cape be justified? Having very carefully considered this matter we have reached the conclusion based on the evidence presented, that it could not be.

Mr Pitt contended that this was the only Victorian site for a commercially viable wind farm. He drew our attention however to a 1991 study for the then Renewable Energy Authority of Victoria and the State Electricity Commission of Victoria, entitled "Victorian Coastal Wind Atlas". The study identifies several candidate sites along the western and central Victorian coastline. It also acknowledges, at page 31, that the coastal hinterland of the western and central coast "will play an important role in large scale wind development in the State". Being a coastal atlas, the coastal hinterland is not analysed in depth. At page 30 the following conclusions are made:

"The regionally representative wind statistics have been used to estimate the potential for large scale wind farm developments in the coastal region. This analysis was done in two steps.

Firstly, reapplication of the WAsP model at selected candidate sites within 10 kilometres of each coastal station. The chosen sites were favourably located on well exposed hills and ridges and represented possible sites for demonstration megawatt scale wind farms.

Secondly, in order to demonstrate the broader potential for large scale wind developments, the decrease of the wind resource moving inland from the coast line was analysed.

The results of this two step analysis indicated that several candidate sites demonstrated 30 metre mean wind speeds of 8 m/s or greater with an installation capacity of a few tens of megawatts. Flat coastal sites within 3 kilometre of the coastline had an estimated 30 metre wind regime in the range 7.3 to 7.7 m/s with an installation capacity of the order of several tens of megawatts. Finally the large coastal hinterland (3 - 50 km inland) while having a lower hub height wind resource (6.5 - 7.0 m/s) due to its larger area has an estimated installation capacity of a few hundred megawatts.

The preliminary analysis of data across the rest of the state showed a general decrease in the wind resource moving away from the western and central coasts with Class 1, 30 metre wind speeds as low as 4 m/s in the central areas of the state." (Tribunal's emphasis)

While we accept that certain of the candidate coastal sites, for example Port Campbell, and Cape Liptrap are likely to have locational constraints by also being sites of high natural beauty, we were not provided with siting or visual impact details to compare them. No evidence was led either in relation to coastal hinterland locations. One the face of it there appears to be some considerable scope for wind energy generation in these areas.

The views expressed in a letter from Brampton and Jaqueline Page, addressed to the Tribunal and forming part of the bundle of documents in Appendix 2 to Mr Townsend's submission, sum up this issue in a considered manner and we agree with them:

"While not happy with the idea of a wind farm in our immediate neighbourhood, we did not initially object. We felt that the larger picture of clean energy was more important. We did not wish to have a selfish outlook. We have however spent considerable time reflecting over the issues and on consideration, would like to put several points to the Tribunal.

Firstly, if wind farm technology is so marginal that it can only be cost effective at Cape Bridgewater and not at alternate sites along the coast and inland where average wind speeds are between 0.1 - 1m per second slower, then this is technology that will never have an impact of significance, and the price Victorians are being asked to pay is too high. But if as we suspect wind farms can be cost effective at slightly slower wind speeds, all be it a little less profitable, then this is technology that we should embrace because of its wide application. Wind farms could and should then be sited in areas of lesser significance.

Secondly, we believe this wind farm will have a detrimental effect on far more people than ourselves, even those who do not yet know of Cape Bridgewater. We have lived here for 12 years and in recent times have witnessed an absolutely dramatic rise in the numbers of visitors to this area. People have come from near and far in order to enjoy a small, unspoiled and intrinsically beautiful part of Victoria. Cape Bridgewater is considered the high point of the "Great South West Walk" and the jewel in Glenelg Shires' crown. Cape Bridgewater has stunning beaches, cliffs, volcanic rock formations, sand dunes, rolling hills and lakes all in a compact radius.

In closing we would like to see this small but very significant piece of Victoria's coastline protected in its current form for all to enjoy into the future and wind farm technology promoted in areas of lesser significance." (Tribunal's emphasis)

If this is not the only location in Victoria where a wind power station could be developed is it appropriate for a site with such widely recognised landscape and scientific values to be the one selected? The objectors contended that the standard or precedent set by approving this proposal would mean that almost any site, however significant, was a valid candidate. In other words if in visual significance terms the Cape is rated more highly than most parts of the Victorian coastline, then a permit for this site would imply that the benefits of a wind farm should always outweigh the benefits of preserving areas of significant landscape value.

The subject site may not lie within or abutting a world heritage or even a national park site. It does however exhibit very special attributes and the evidence has demonstrated that, in comparative terms, these are highly significant for Victoria. The evidence pointed also to the social and economic benefits for the region which have been occurring as persons of enterprise have sought to take advantage of the Cape's natural and scenic attributes. This has been of relatively recent origin due no doubt to the relative remoteness of the location. Just as with a wind farm, these endeavours have locational requirements which are met at the Cape. Despite its remoteness it is close enough to a population centre and sufficiently well serviced with roads and other infrastructure to facilitate viable tourism opportunities, without being so remote as to preclude all but wilderness area visitors. Accordingly, whilst it is very difficult to put a dollar value, on the social, environmental and economic benefits of maintaining the scenic and scientific values of this Cape, we find on balance that these benefits outweigh the benefits of a wind power station at this site.

ORDER



The decision of the Responsible Authority is set aside and it is directed that no permit issue.

DATED

JANE MONK

PRESIDING MEMBER

HOWARD TERRILL

MEMBER

JM:RB

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