Land and Environment Court of New South Wales CITATION : Glen Innes Landscape Guardians Incorporated -v- Minister for Planning & Glen Innes Windpower Pty Limited [2010] NSWLEC 1281 APPLICANT Glen Innes Landscape Guardians Incorporated PARTIES : FIRST RESPONDENT Minister for Planning SECOND RESPONDENT Glen Innes Windpower Pty Limited FILE NUMBER(S) : 10926 of 2009 CORAM: Moore SC KEY ISSUES: DESIGNATED DEVELOPMENT - DEVELOPMENT CONSENT :- Objector appeal; visual and noise impact of windfarm; interference with aerial application of agricultural soil improvemnts; allocation of community benefit funds LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd [2007] NSWLEC 59; (2007) 161 LGERA 1 King & anor v Minister for Planning; Parkesbourne-Mummel Landscape Guardians Inc v Minister for Planning; Gullen Range Wind Farm Pty Limited v Minister for Planning [2010] NSWLEC 1102 DATES OF HEARING: 9 and 10 August 2010 EX TEMPORE JUDGMENT DATE : 10 August 2010 APPLICANT Mr A Perkins, solicitor Colin Biggers & Paisley FIRST RESPONDENT Mr P Clay, barrister LEGAL REPRESENTATIVES: INSTRUCTED BY Department of Planning SECOND RESPONDENT Mr A Pickles. barrister INSTRUCTED BY Middletons JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE SC 10 August 2010 10926 of 2009 Glen Innes Landscape Guardians Incorporated -v- Minister for Planning & Glen Innes Windpower Pty Limited JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 SENIOR COMMISSIONER: The Waterloo Range runs in a generally north-south direction somewhat to the west of Glen Innes. The proponent had sought, as a project consent from the Minister for Planning, approval for the erection and connection to the state electricity grid of a wind farm whose turbines will predominantly be located along the main spine of the Waterloo Range with, now, three turbines to be located on an outlying element of the range to the east toward its southern end. 2 The proceedings were commenced by the Glen Innes Landscape Guardians (the Guardians), an incorporated association, objecting to the location of a number of the turbines, predominantly as I understand their objections, in the southern end of the proposed wind farm. 3 Following discussions between representatives of the Guardians, the proponent and the Department of Planning, a revised layout is being proposed for the wind farm, a copy of which has been tendered as exhibit 11 in the proceedings and is reproduced below. 4 This revised lay out includes minor relocations; alterations to a number of the turbines in the southern end; the deletion of one turbine; and the non-reinstatement of another turbine that had been deleted as part of the assessment process. 5 As a consequence, the proceedings have come before me to deal with as consent orders between the three parties. As part of that process, I am obliged not merely to consider the (now) non-opposition by the Guardians to the proposed wind farm but also to consider those outstanding objections to the wind farm from persons who are not members of the Guardians but who lodged objections to the original proposal. There are three of those to which I must turn my attention and with respect to which I must make an assessment of the objections. 6 I do that in the context of having spent a lengthy period of time with the legal representatives of the respondents and with Mr Putland, the representative of the Guardians, inspecting the vicinity of the wind farm and travelling to the location of one turbine in the centre of the wind farm lay out that afforded a significantly broad view to both the north and the south along the line of the Waterloo Range. 7 We commenced the inspection by stopping outside a property known as 'Carrington Park' on the Furracabad Road, that being a property whose owners have lodged an objection to the proposed wind farm – primarily on the basis of proximity and visual impact – as matters that are able to be taken into account by me in these proceedings (but also on the basis of what they anticipate to be the diminished value of their property) if the wind farm is to proceed. 8 I note with respect to the latter point that as discussed by the Preston CJ in Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd [2007] NSWLEC 59; (2007) 161 LGERA 1 at paras 150 to 160 and adopted subsequently by Fakes C and me in the recent proceedings involving the Gullen Range Wind Farm (see King & anor v Minister for Planning; Parkesbourne-Mummel Landscape Guardians Inc v Minister for Planning; Gullen Range Wind Farm Pty Limited v Minister for Planning [2010] NSWLEC 1102). Questions of diminution of value are not matters that I can lawfully take into account in these proceedings (whether or not they would occur, a matter about which I make no comment). 9 Carrington Park, on my reading of both the supplementary noise assessment and the noise contours contained in the attachments to it, together with the distance from the nearest turbines which will be 20B, 21B and 22B (ther\se will be some three or four kilometres to the south-west of Carrington Park) means that there is no prospect of adverse noise impact on that property nor is there any likelihood of shadow flicker (both as a consequence of distance and direction). 10 As part of the documents that have been provided, in the second volume of the Environmental Assessment, there is a photomontage of the view from a viewing point on the road somewhat to the south of Carrington Park but a point that was inspected by us in passing during the drive between stop points in the site inspection. Provided in the photomontage is a visual depiction, reproduced below, of what the turbines would look like in the landscape from that point. 11 Although referring to the original proposed layout rather than the revised layout, this shows the turbines on the horizon at such a distance where it would not be reasonable to assume that there was any unsatisfactory visual impact on Carrington Park. As a consequence, I am satisfied that there is no basis, with respect to that property, upon which I could (or should) order any alteration to the project. 12 The next objection comes from the owners of a property named Waterloo Station to the north-west of the northern end of the proposed wind farm. The visual impact assessment also includes a photomontage from the intersection of Ilparran Road and the highway (this intersection is in the vicinity of Waterloo Station). 13 Similarly, the conclusion to be drawn from that is that there is no visual impact assessment basis upon which to conclude there is any unsatisfactory impact on Waterloo. 14 A similar position applies with respect to the noise assessments and to shadow flicker, indeed the topography and location renders shadow flicker equally irrelevant as with Carrington Park, in addition to questions of distance. 15 I note with respect to Waterloo, as the substation for the proposed wind farm is in the vicinity of Turbine 1 at the northern end, that the proponent has agreed to a condition of consent that will have substation located to the south of the ridgeline in the vicinity, thus removing any likelihood of any significant visual impact (and, possibly, any visibility whatsoever) of the substation from anywhere in the vicinity of Waterloo. 16 The final objector matter that requires consideration is the concerns that were expressed by the aerial agricultural application contractors who lay fertiliser and other property improvement substances along the ridge tops in the vicinity of the wind farm. 17 I had the benefit, during the course of an informal hearing at Glen Innes Court House, of hearing from Mr Boundy who is the manager of a firm called "Super Air" who made a submission to the public process concerning the potential impact on his company and its pilots, of the location of the turbines. 18 Although there were two written submissions provided as part of the assessment process, Mr Boundy's evidence (which is uncontradicted in the proceedings), was more detailed than that which was contained in the written submissions. There were, as a consequence of his evidence, two agreed changes to condition 2.53 of the proposed project conditions: o one to change the description of the nature of the activities covered by that compensatory provision; and o the other to include a dispute resolution process. 19 Neither of those changes are controversial and do not require to be detailed but will be incorporated in the revised conditions of consent that flow from these proceedings. 20 The final matter that arose was how to deal with the triggering of the compensatory elements of condition 2.53 as a consequence of the nature of the aerial operations. 21 Mr Boundy's evidence was that, if flying toward the turbines - that is doing depositional grid patterns that would probably be in an east-west flight path direction, up to two and a half to three kilometres could be required for a fully laden aerial application plane to turn to make a pass in the opposite direction. The possibilities are either to retain the present provision which refers to surrounding properties or to incorporate a condition as I proposed to the parties during the course of the discussions yesterday that set a limit, a boundary defined limit, relative to the wind farm. 22 I am satisfied, on the basis of the evidence given by Mr Boundy (which was quite detailed and persuasive), that it would be appropriate to require that the operation of that condition would be attracted by any property whose boundary was within 2.5 km of the wind farm - this allowing a sufficient distance, based on Mr Boundy's evidence, for turning of planes and flying back to make passes in the opposite direction when utilising an east-west flight pattern. 23 The sole remaining matter, apart from some definitional changes that have been agreed to by the parties to provide greater consistency and predictability, is the question of what should be the form of condition relating to a community enhancement program. 24 In condition 4.7 of the revised conditions of consent, there was an agreement between the representatives of the proponent and the representatives of the Guardians that a sentence stating that fifty per cent of the annual contribution will be allocated to projects identified in the program that benefit properties within five kilometres of the project and the other fifty per cent allocated elsewhere within the local government area. 25 It would seem to me that if such a sentence is to be incorporated, it should say "is to be allocated" rather than "will be allocated", that is merely a grammatical change. The substance however, is dealt with by objections from the Glen Innes Seven Local Council (the council) as the council objects to the allocation of a proportion of the contribution to projects benefiting properties within five kilometres of the project. 26 An alternative condition has been discussed this morning that is based, in general terms, on the condition that came out of the Gullen Range proceedings. The condition, Exhibit 3 in the proceedings, has, by agreement, been modified to incorporate the Guardians as a group that are specifically to be consulted as part of any community consultation process in the development of the community enhancement program. 27 The sole remaining matter that arises as to whether there should be an attribution of portion of the funds. It was the evidence of Mr Price, giving the council's evidence, that some elements of the possible projects that would be funded might provide benefits but fall outside the five kilometre radius but still nonetheless provide a benefit to properties that were within that area. His specific example was a road that might partially fall within and partially fall without such an area. 28 In the Gullen Range proceedings, the nature of the community enhancement program was much more specific and targeted at local properties that, at least arguably, bear a greater visual disability (although, nonetheless, an acceptable visual disability) as a consequence of the project. 29 It seems to me, in the case of the present condition, in the absence of the detail that was provided for specific property benefits in the Gullen Range proceedings, it is nonetheless appropriate to have an attribution proposed as part of the condition. I do not consider that it is unreasonable that the sentence, in slightly grammatically corrected form that was agreed between the proponent and the Guardians, should not be re-incorporated in the revised 4.7 that is Exhibit 3. 30 In reaching that conclusion, I indicate that, if there were to be a proposal for an upgrading of a road that was partially within and partially without the area (as Mr Price discussed in his evidence), there would be no reason why partial funding could not be allocated from one fifty per cent and partial from the other fifty per cent. That is a matter for negotiation in the process of development of the fund. 31 I am therefore satisfied that condition 4.7, as proposed in Exhibit 3, should be adopted with the incorporation of the corrected sentence from 4.7 containing the fifty/fifty allocation of funding for these purposes. 32 The consequences of that are that the formal orders will uphold the appeal by the Guardians, However, as there are consequential amendments to the project approval that need to be undertaken, the project will be given approval subject to revised conditions of project approval and the project definition elements at the commencement will be dealt with by a map that will be settled between the proponent and the Director General as being appropriate to provide that definition of the project. The exhibits, other than Exhibits 11, 12 and 13, will be returned. Tim Moore Senior Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.