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Synergy Wind Pty Ltd v Wellington SC  VCAT 2454 (21 December 2007)
Last Updated: 14 October 2008
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
|PLANNING AND ENVIRONMENT LIST
VCAT REFERENCE NO. P2691/2006
PERMIT APPLICATION NO. P73/2007
Application under section 77
of the Planning and Environment Act 1987
to review a decision to refuse
a permit. Wind Energy facility
(windfarm). Seven wind turbines. Farming zone. Noise amenity impact.
Landscape values. Landscape
amenity impact. Proximity to dwellings.
Wellington Shire Council
Sharon Dohnt and others; Gary McVean, Terry
Willmott, Geraldine Savahl, R Handley, Faye Vyner and John Danuser, D R Moffat,
Tucker, M Greenaway, P Forder, M Telling, A Jung, P Kimber, L Strobel
and T Burgoyne.
144 Ingles Road Devon North
Wellington Shire Council Offices, Sale and
Jeanette G Rickards, Presiding Member
Ian Potts, Member
DATE OF HEARING
August 2007 and 6
DATE OF ORDER
The decision of the Responsible Authority is set
aside. In permit application P73/2007 a permit is granted and directed to
for the land at 144 Ingles Road, Devon North.
The permit allows the use and development of a wind energy facility
comprising seven turbines each with a generating capacity of not
more than 2 MW
and associated infrastructure in accordance with the endorsed plans and subject
to the following conditions:
the use and or development starts, amended plans to the satisfaction of the
Responsible Authority must be submitted to and
approved by the Responsible
Authority. When approved, the plans will be endorsed and will then form part of
the permit. The plans
must be drawn to scale with dimensions and two copies
must be provided. The plans must be generally in accordance with the plans
submitted with the application but:
to show the exact locations of the turbines on the site so that no turbine is
closer than 500 metres to any dwelling existing
at the date of approval of this
permit other than the dwelling belonging to the owner of the site.
a detailed schedule of materials, colours and finishes of the wind generators
(inclusive of nacelles, blades and foundations)
and any other structure proposed
as part of the facility.
the turbines are re-positioned from the locations identified in the report
prepared by Marshall Day Acoustics dated 7 June 2007
(Appendix H - Summary of
revised acoustic report must be submitted that assesses the potential noise
levels at adjoining residents in accordance with the
method of New Zealand
Standard: ‘Acoustics - The Assessment and Measurement of Sound from
Wind Turbine Generators’ (NZS 6808:1998) for the revised location of
the turbines and demonstrates compliance with this standard.
revised shadow flicker assessment must be submitted demonstrating compliance
with the Policy and planning guidelines for development of wind energy
facilities in Victoria (Sustainable Energy Authority Victoria, May 2003 or
as amended at the time of assessment).
the satisfaction of the Responsible Authority.
Use and Layout Conditions
use and layout of the site and the size, design and location of the buildings
and works permitted must always accord with the
endorsed plan and must not be
altered or modified without the further written consent of the Responsible
tower access points and electrical equipment must be locked and made
inaccessible to the general public. Public safety warning
signs must be located
on all towers, and all spare parts and other equipment and materials associated
with the wind energy facility
must be located in screened, locked storage areas
that are inaccessible and not visible to the public, to the satisfaction of the
permit does not include permission for any buildings or works associated with
the re-powering of the wind energy facility. Such
works will require further
Wind Energy Facility Specifications
wind energy facility and turbines must not exceed the following parameters:
MM92 turbines in total (or equivalent type to the satisfaction of the
to be mounted on round steel towers no greater than 80 metres in height to the
hub of the turbine;
blades of no more than 48 metres in length;
with the consent of the Responsible Authority, all areas affected by
construction activities required for the wind energy facility,
roads and lay down areas, must be revegetated and rehabilitated to their
previous condition at the completion of
construction operations to the
satisfaction of the Responsible Authority.
must cease immediately upon the discovery of any Aboriginal cultural material
and Aboriginal Affairs Victoria must be notified
immediately of any such
any suspected human remains are found work must cease immediately and the
Victoria Police and State Coroner’s Office must
be notified immediately.
If there are reasonable grounds to suspect that the remains are
Aboriginal, the discovery should also be reported to Aboriginal Affairs
Traffic Management Plan
any building or works commence in association with the wind energy facility, the
following information must be submitted to
and approved by the Responsible
Traffic Management Plan, addressing the following issues:
and transport vehicle routes;
suitability of access roads for traffic needs;
and potential impacts upon traffic volumes on local roads;
access points to turbine sites from Bolgers Road;
provision of appropriate traffic management signs:
need for intersection upgrades to accommodate any additional traffic
and/or de-commissioning traffic requirements.
the commissioning of any stage of the wind energy facility, the following
information must be submitted to and approved by
the Responsible Authority in
consultation with the Department of Sustainability and Environment (DSE):
bird and bat management plan which includes:
post-commissioning bird and bat mortality monitoring program along with
scavenger trials to determine what impact the wind energy
facility is having on
bird and bat species.
mitigation plan for dealing with potential threats to bird and bat species that
may be identified through these studies.
results of the surveys and monitoring work must be reported to the DSE and the
Environment Management Pan
any works commence on the site, an Environment Management Plan (EMP) that covers
the construction, operation, re-powering and
decommissioning of the wind energy
facility must be prepared to the satisfaction of the Responsible Authority. The
EMP must address
the following issues:
construction and work site management plan which includes:
for access, noise and pollution management;
of all potential contaminants stored on site;
identification of all construction and operational processes which could
potentially lead to water contamination;
identification of appropriate storage, construction and operational methods to
control any contamination risks;
identification of any waste re-use, recycling and disposal procedures;
for the siting of any temporary structures required during construction
(including construction compound, workers huts, concrete
storage and laydown areas, etc.); procedure for their removal and reinstatement
of the land once they are no
track construction plans for all tracks and access points, to the satisfaction
of the responsible authority. Access must
only be taken from Bolgers Road;
sediment and erosion management plan which includes:
to ensure that silt from batters, cut-off drains, table drains and road works is
retained on the works site during and
after construction. All land disturbances
must be confined to the minimum practical and to the vicinity of the identified
to be removed must be stockpiled and separate horizons must be stockpiled
separately and not mixed. Stockpiles must be located
away from drainage lines
and covered/stabilised to limit wind erosion;
for the storage of fuels and chemicals in securely bunded areas well away from
waterways and native vegetation;
to contain any contaminated or turbid run-off during and after construction;
to suppress dust arising from construction-related activities. Appropriate
measures may include water sprays on roads
and stockpiles, stabilising surfaces,
temporary screening, modifying construction activities during heightened wind
periods and revegetation
of exposed areas as soon as possible;
to ensure that steep batters are treated in accordance with Environment
Protection Authority recommendations detailed in
Techniques for Pollution Control’ No. 275, 1991;
for waste water and discharge management;
for reinstatement of unnecessary tracks, hardstand areas and other areas
following completion of construction.
development and use must be carried out in accordance with the approved
Environmental Management Plan to the satisfaction of the
Off-site Landscape and Visual Screening Plan
the development starts, a program of landscape mitigation works is to be offered
to the landowners of the ‘Stone’
and ‘Neist’ properties
(as identified in the Statement of evidence for visual impact prepared by
Stephen Schutt of Hansen
Partnership Pty Ltd, dated May 2007). As part of this
program an Off-site Landscape Plan must be prepared and submitted to the
of the Responsible Authority. When approved, the plan will be
endorsed by the Responsible Authority. The Off-site Landscaping Plan
submitted in stages to the satisfaction of the Responsible Authority (so that
not all stages are completed before the development
starts) and must include
(but may not be limited to) the following:
- (a) A provision
for landowners of the ‘Stone’ and ‘Neist’ properties to
have the opportunity to accept the
offer of visual screen planting at any time
up until six (6) months after the commissioning of the last wind generator;
- (b) The process
by which those landowners provided for in condition 12(a) will be informed of
this offer and the process by which
it can be accepted;
- (c) Details of
planting or other treatments that will be used to reduce the visual impact of
the wind turbines at the dwellings of
- (d) Details of
species proposed to be used for the landscaping including details of height and
size of species at maturity;
- (e) A timetable
for the implementation of the plan;
- (f) A
The use and development must be
carried out in accordance with the endorsed Off-site Landscape Plan to the
satisfaction of the Responsible
Noise Management and Commissioning Report
operation of the wind energy facility must comply with the New Zealand Standard:
‘Acoustics - The Assessment and Measurement of Sound from Wind Turbine
Generators’ (NZS 6808:1998) (the ‘New Zealand
Standard’) in relation to any dwelling existing at the date of
approval of this permit to the satisfaction of the Responsible Authority.
three months of the commencement of operation of any turbine(s) associated with
the wind energy facility hereby permitted,
an independent post-construction
noise monitoring program must be undertaken by the proponent in accordance with
the New Zealand Standard to the satisfaction of the Responsible
Authority. The program must monitor noise levels at any dwellings existing
within a one kilometre
radius of any wind turbine at the date of approval of
this permit and that is not in the same ownership as the subject land.
A report summarising the results of the program, and the data
collected, must be forwarded to the Responsible Authority within 30
days of the
end of the monitoring period. The results must be written in plain English and
formatted for reading by lay people.
Recommendations to address any non-compliance with the New Zealand
Standard must be included in the report and, on agreement by the Responsible
Authority measures to address non-compliance must be immediately
the satisfaction of the Responsible Authority.
Electromagnetic Interference Commissioning Report
permit holder must conduct a pre and post construction qualitative survey of
telecommunications receiver and transmitter stations
with line of sight across
the site including TV and radio reception for residences and facilities within
an area prescribed by a
one kilometre radius from each of the turbine locations
associated with the wind energy facility hereby permitted. If the qualitative
survey establishes any detrimental increase in interference to reception and/or
signals, the applicant shall implement mitigation
measures that return affected
reception and/or signals to pre-construction quality to the satisfaction of the
Shadow Flicker Management
permit holder must implement mitigation measures to the satisfaction of the
Responsible Authority to ensure that no dwelling experiences
degree of shadow flicker or undue blade glint. Shadow flicker experienced at
any dwelling in the surrounding area
must not exceed 30 hours per year as a
result of the operation of the wind energy facility hereby permitted.
Aviation Safety and Lighting
required by the Civil Aviation Safety Authority (CASA) aviation obstacle
lighting must be placed on the turbines to the satisfaction
of the CASA. To the
extent allowed by the CASA the lights must be shielded or designed so that the
light is only directed upwards
and does not shine at or below the horizontal
plane of the light fitting.
construction of the wind energy facility, CASA must be informed so that they can
determine the adequacy of the lighting
provisions to ensure that the safety of
air navigation is not compromised. Further action as to aviation lighting
arising from this
inspection and at the direction of CASA shall be implemented.
as provided for in this permit the turbines and towers must not otherwise be
artificially illuminated at night.
the final position of the wind turbines has been determined for the wind energy
facility hereby permitted and prior to their
construction, the developer must
supply the RAAF AIS with the height and position of the turbines. When
construction is complete,
‘as constructed’ details must also
be passed to the RAAF AIS.
project closure and/or decommissioning, the applicant must conduct the following
operations to the satisfaction of the Responsible
removal of all non-operational or downed equipment;
removal and clean-up of any residual spills;
clean-up and restoration of all storage, construction and other areas associated
with use, development and decommissioning of
the wind energy facility;
restoration of all tower pads, access roads and any other area affected by
project closure or decommissioning.
permit will expire if the development is not started within four years and
completed within six years of the date of this permit.
Responsible Authority may extend this period if a request is made in writing
before the permit expires or within three months
Jeanette G Rickards
Mr Paul Chiappi, of Counsel, instructed by Harlock Jackson Pty Ltd. Mr
Chiappi called as expert witnesses:
Ms Virginia Jackson, planner;
Mr Tim Marks, acoustic engineer; and
Mr Stephen Schutt, landscape architecture..
For Responsible Authority
Mr Tim Peggie, town planner of The Planning Group.
Ms Joanne Lardner, of Counsel by
direct brief. She called as expert witnesses:
Mr Patrick O’Neil, earth scientist;
Mr Graeme Harding, acoustic engineer; and
Mr Denis Williamson, landscape planner.
Mr Reakes and Ms Neist, respondents, spoke on their own behalf.
proposal to construct and operate a Wind Energy Facilities
(WEF) is an often
hotly contested matter, raising issues of noise and loss of landscape values by
those surrounding the proposed site.
This proposal is no different. In March
2006, the Wellington Shire Council (the Council) received an application for the
development of the subject site for a
application was for nine (9) wind generating turbines and associated
infrastructure. Subsequent to notification requirements
and provision of
the Council refused to issue a permit on the grounds that:
energy facility will impact unacceptably on local amenity in terms of:
noise emissions; and
the application for review of Council’s decision to refuse the permit, Ms
Donht and other local community members
submitted their objections to the issue
of a permit. The grounds were substantially centred around perceptions of
to their rural lifestyle. Issues relating to birds (wildlife),
bushfire risks and other matters were also raise, but not actively
arriving at our decision to grant a permit for this WEF, we have taken into
consideration the matters raised by the parties in
their submissions. As Ms
Lardner noted in her opening comments, objections to WEF’s often raise a
plethora of concerns. In
this instance, it was our findings that the concerns
centred largely on the impacts to the amenity of residents in a range of rural
lifestyle and farm dwellings located around the site. However we have found,
after considering all the relevant material submitted
or raised with us, that
the proposal is acceptable when having regard to the balance between the policy
weighting toward the establishment
of WEF’s and the local amenity issues.
arriving at this decision, and giving consideration to the policy support for
WEF’s (discussed later in these reasons) it
strikes us that one must
consider the opportunity for WEF’s like many other natural resources.
WEF’s utilise wind energy.
As is set out in the Policy and Planning
Guidelines for development of wind energy facilities in Victoria, this resource
to specific coastline and inland locations. Put another way, just
like quarries or mines, WEF’s cannot be located anywhere.
specific location requirements that must be met to gain the best wind supplies.
We have borne this in mind when considering
the matters before us and weighing
up the policy support for WEF’s, the opportunity that this site presents
and the concerns
raised by the Council and objector residents.
Some preliminary matters and the hearing
the commencement of the hearing Mr Chiappi applied to amend the permit
application by the substitution of amending plans as foreshadowed
given in accordance with the Tribunal's practice requirements. The amending
plans reduce the number of turbines in the
proposal from nine to seven with some
revision of the turbine #4 location. Other details of the proposal were
relocation of the transformer and changes to the access
opposed the amendment of the permit application in this way, although Mr Peggie
questioned the co-ordinates and elevation of
some turbine locations, a matter
which he took up in his submissions. The amended plans were substituted as the
plans the subject
of this application for review and the permit application.
application for the
joining of a number
parties to the proceedings was made by Ms Lardner. She submitted that a number
of the parties were objectors to the
original permit application and were now
responding to the amended
application was not opposed and the parties were joined.
parties at the hearing relied on written and oral submissions and numerous
photographs, plans and other documents were tendered.
All witnesses spoke to
written evidence, gave oral evidence and were made available for cross
examination. The various tendered
materials, save for the elaborate and
noteworthy three dimensional scaled diorama of the subject site and surrounds
have been retained
on the Tribunal’s file.
made an initial inspection of the site on the first day of the hearing. We
undertook a more detailed inspection of the site and
surrounds following the
final day of hearings in September. We also took the opportunity during this
latter inspection to visit
the Toora Wind Farm and surrounds to assist in our
deliberations on this matter.
the commencement of the hearing we informed the parties that the Tribunal had
provided the decision for the matter of Perry v Hepburn
SC, a decision
regarding an application for a two turbine WEF at Leonards Hill, near
Daylesford. As this was the first decision of
the Tribunal on the matter of
2002, and sought to
set out some important principles we afforded the parties an opportunity to
respond to this decision at the end of
the hearing. As appropriate we have also
drawn upon this decision in our deliberations on this matter.
Where is the wind farm to be located?
wind farm is proposed for a grazing property located at 144 Ingles road, Devon
North, some 8 kilometres west of Yarram and 16
kilometres to the north of Port
Albert. This property comprises four separate lots which together make up a
property of approximately
site lies at the foothills of the Strezlecki Ranges. It is an undulating site,
but can generally be thought of as one of a number
of low hills that are present
along the boundary of the coastal plain to the south and the higher Strezlecki
Ranges to the north.
Mr Peggie summarised the site conditions this
The site varies in elevation from 70 metres AHD in the south of
the site to approximately 170 AHD metres [sic] in the northern section
site. This increase in elevation is not uniform as the site varies in
undulation. In simple terms however the site is of
lower elevation in the
south, south-east and south-west and higher elevation in the north and
north-west with two main hills providing
the greatest topographical relief in
the central section of the site.
fall in relief to the east is due to the valley cut by Stony Creek. This
waterway forms (in part) the eastern, irregular boundary
of the site. The
south-west boundary of the site follows another, unnamed creek, which joins to
Stony Ck south of the site. The
southern site boundary is along Ingles Rd.
The western and north-western boundaries are to other private farmland, the
a gully line. The northern most boundary follows Bolgers Rd.
The various boundary lines, in following gully and creek lines, results
property being viewed as singular rise from various public and private realm
locations, most particularly from the south,
east and west. We can attest to
the views to be gained from the central high point of this property.
site is largely cleared for grazing purposes, with scattered trees and
windbreaks located across the site. The largest congregation
of trees are
around the lower, southern portions of the site, along Stony and the unnamed
creeks and a pine plantation in the north-west
of the site. Improvements to the
site include a farmhouse, various sheds and a number of dams, paddock fencing
and a number of internal
the south of the site, the topography falls and blends into the Yarram/Port
Albert coastal plain. The land use is a mix of open
farming (grazing) land and
state forest. To the immediate east, i.e. the immediate east of Stony Creek,
lies open farm land, variously
parcelled into lifestyle farm properties. The
topography here is generally lower than the subject site, but remains
Beyond these lies state forest and private bush properties on the
lower, plains area.
similar land use pattern extends to the north and west, with a mix of lifestyle
farm or rural properties on undulating land, of
elevations higher and lower than
the subject site. Generally as one progresses further north and west into the
the land elevation is higher than the subject site. The
Strezlecki State Park also lies to the north and west.
Peggie suggested to us that the site is located within the Devon North hamlet.
Mr Reakes and Ms Lardner submitted a similar sense
of belonging by local
residents to the Devon North community. We do not doubt such a sense of
belonging. However we find it a stretch
from a physical point of view to
suggest the degree of settlement is intense enough to be considered a hamlet.
The term hamlet more
rightly applies to that of Devon North, a settlement area
well removed to the north-east of the subject site. We acknowledge however
there exists a mix of farming and rural lifestyle use around the subject site
and their appears to be a strong community bound.
What is proposed?
proposes the construction of seven wind turbines of 2MW capacity each. These
turbines (under the amended plans) will be more
or less evenly distributed
around the upper portion of the site (the base elevations ranging from 107m AHD
to 150m AHD). Each turbine
is to have a hub
height of 80m and a
blade radius of not more than
48m. The combined
height from ground level to highest blade tip would therefore be 128m above
ground level. Turbine elevations will
range from 187m AHD to 230m AHD with the
top blade elevations ranging from 235m AHD to 278m AHD. Transformer kiosks are
to be located
at the base of each turbine tower (or possibly internal to the
tower). The turbines, towers and blades will be coloured off-white.
turbine towers will be linked by an unsealed access track collocated with
underground power transmission cable. This cable will
lead from Turbine #8 (the
southern most turbine) to the southern boundary of the site, where it will
connect to above ground power
lines and thence connect to a 66Kv line 5 km to
the south-east of the site along the Yarram-Morwell Rd. A transformer is to be
at this connection point to the 66Kv line.
temporary lay down / works area of 50m by 50m dimensions is proposed at the
northern end of the property, in proximity to Turbine
#1. The works area will
be accessed from Bolgers Rd. The aforementioned access track will lead from
this works area, eastward to
the proximate base of each tower, terminating at
Turbine #5. A vehicle parking area is provided close to the base of each tower.
What are the relevant planning scheme provisions and other applicable
subject site is located in a Farming Zone
(FZ). It is not
affected by any overlays. Applications for wind energy facilities are subject
to the particular provisions of clause
52.32 of the Wellington Planning Scheme.
purposes of the farming zone are:
To implement the State Planning
Policy Framework and the Local Planning Policy Framework, including the
Municipal Strategic Statement
and local planning policies.
To provide for the use of land for agriculture.
To encourage the retention of productive agricultural land.
To ensure that non-agricultural uses, particularly dwellings, do not
adversely affect the use of land for agriculture.
To encourage use and development of land based on comprehensive and
sustainable land management practices and infrastructure provision.
To protect and enhance natural resources and the biodiversity of the
energy facilities (i.e. wind farms) are a section 2, permit required
use. A permit is
also required for the building and
guidelines set out that the Responsible Authority, and now the Tribunal, must
consider a variety of general, agricultural,
environmental, dwelling, design and
The list is extensive and need not be repeated here in full. Particularly
relevant matters include:
The State Planning Policy Framework and the Local Planning Policy Framework,
including the Municipal Strategic Statement and local
Whether the site is suitable for the use or development and whether the
proposal is compatible with adjoining and nearby land uses.
Whether the use or development will support and enhance agricultural
Whether the use or development will permanently remove land from agricultural
The potential for the use or development to limit the operation and expansion
of adjoining and nearby agricultural uses.
The impact of the proposal on the natural physical features and resources of
the area, in particular on soil and water quality.
The impact of the use or development on the flora and fauna on the site and
Design and siting issues
The need to locate buildings in one area to avoid any adverse impacts on
surrounding agricultural uses and to minimise the loss of
The impact of the siting, design, height, bulk, colours and materials to be
used, on the natural environment, major roads, vistas
and water features and the
measures to be undertaken to minimise any adverse impacts.
The impact on the character and appearance of the area or features of
architectural, historic or scientific significance or of natural
The location and design of existing and proposed infrastructure including
roads, gas, water, drainage, telecommunications and sewerage
purpose of clause 52.32 is to ‘facilitate the establishment and expansion
of wind energy facilities, in appropriate locations,
with minimal impact on the
amenity of the area’. Applications for wind farms are required to submit
information on a number
of matters. This includes:
The location of
all dwellings within a 500 metre radius of the site.
Photomontages or other visual simulations illustrating the development from
key vantage points.
An assessment of the noise impact of the proposal based on the New Zealand
Standard NZ6808:1998, Acoustics – The Assessment
and Measurement of Sound
from Wind Turbine Generators.
An assessment of other potential amenity impacts such as blade glint, shadow
flicker, electromagnetic interference.
decision guidelines call for consideration of:
The views of the
Sustainable Energy Association of Victoria about the contribution of the
proposal to reducing greenhouse gas emissions.
The effect of the proposal on the surrounding area in terms of noise, blade
glint, shadow flicker and electromagnetic interference.
The impact of the development on significant views, including visual
corridors and sightlines.
The impact of the facility on the natural environment and natural
The impact of the facility on cultural heritage.
The views of the Civil Aviation Safety Authority if within a 30 kilometre
radius of an airfield.
The Policy and Planning Guidelines for Development of Wind Energy Facilities
in Victoria, 2003.
general decision guidelines of clause 65 also apply.
to consider under the State and Local Planning Policy Frameworks were set out by
Mr Peggie and Ms Jackson. They referred
us to state environmental policy,
particularly renewable energy, business, tourism, agriculture and
The Municipal Strategic Statement (MSS) provides an overview of the shire and
its strategic planning setting. This includes matters
environment and economic
agreed that there was little by way of local policy relevant to this case other
than the small rural lots
is made under clauses 15.14 and 52.32 to the ‘Policy and Planning
Guidelines for Development of Wind Energy Facilities
in Victoria’ (the WEF
have taken these provisions, policies and guidelines into consideration in
arriving at our decision.
WHAT IS THE BASIS OF THE TRIBUNAL’S DECISION?
his submission, Mr Peggie submitted that the Council does not contest that the
proposed WEF meets ‘Government Policy, Aircraft
Safety and Flora and
Fauna’. He submits that Council’s grounds relating to visual and
other amenity impacts to the surrounds
are where the proposal fails to comply
with the WEF Guidelines. The objectors relied substantially on similar grounds,
raised matters of shadow flicker, construction traffic access, impacts
to farm activities and geotechnical stability issues.
reviewed the various application materials, submissions and expert evidence, we
see no reason to disagree with the Council
that apart from the matters outlined
there is no need to dwell on additional matters not under contest. We accept
that the site
does not present unacceptable risks to sensitive flora or fauna,
heritage sites or aircraft safety. This is a matter that largely
turns on a
contest between the rural lifestyle use of the surrounding land and a proposed
rural land use envisaged as a potential
and legitimate use under the farming
Should the WEF land use give way to residential rural lifestyle uses?
making our decision we have considered, on the one hand, a number of rural
lifestyle properties, some of which are clearly not
associated with farming or
agricultural production, that by artefact, are located in a farming zone. On
the other hand, we have
a proposal for land use and development that is
envisaged under the zoning and has significant weight of government policy, that
on balance of other matters support it.
Lardner particularly emphasised the rural hamlet nature of Devon North, its
strong sense of community and the inappropriateness
of this WEF in such close
vicinity to this community.
can do nothing else but accept that there are a number of dwellings located
within a 1 to 3km radius of the site (9 and 53 respectively
were cited by Ms
Lardner). It is necessary and appropriate to deal with the legitimate concerns
of potential impacts to these existing
dwellings. This we have done elsewhere
in these reasons. However, it was submitted that Devon North is an area with
an increase in rural residential development in view of the
constraints on nearby Yarram. The corollary to this position, as put
objectors, appears to be that this WEF proposal therefore has no place in such
do not agree. Recent strategic planning identified that there is little demand
for rural residential blocks at Devon North and
land closer to Yarram has, under
Amendment C24 Part 1, be rezoned to Low Density Residential. Land identified
at Devon North under
Amendment C24 Part 2 was refused rezoning to Rural Living
by the Minister on 7 July 2007. Mr Peggie provided advice that Council
intend to ‘revisit this amendment or to investigate any additional land
for rezoning to rural living in the Devon North
area in the near
in this matter, we make a physical distinction between the immediate surrounds
of the subject site and the Devon North hamlet
that is located to the west and
the one contemplated for expansion under Amendment C24 Part 2. This settlement
area is zoned Rural
Living Zone (Schedule 2) and has an express purpose to
‘provide for residential use in a rural
The subject site is in a farming zone (a rural use zone at the time of the
application). There is no express purpose to provide
for residential use in
this zone. Such use is considered to be ancillary to that of agricultural use
of the land.
Indeed one of the purposes of the zone is to ‘ensure that non-agricultural
uses, particularly dwellings, do not adversely affect the use of land for
therefore have a situation where there is no further contemplation of expanding
rural lifestyle development in the Devon North
area. Further, there is strong
local policy to avoid small lot subdivision solely for the purpose of rural
is consistent with state
policy and the
legitimate use of this land is for those purposes and developments contemplated
under the zone. This may include dwellings and
WEF’s as appropriate.
Both are section 2 uses, requiring a permit. Rural lifestyle dwellings do not
enjoy any particular
advantage or priority over other section 2 uses. Indeed,
there is policy and planning controls to prevent such
on the other hand, have strong policy support and their use is specifically
contemplated in the farming, rural conservation
zone and public conservation and
dismiss the implication that the rural lifestyle use of the surrounding land
enjoys planning priority or should be contemplated
as a land use with a future
legitimacy or primacy over the WEF purely on the basis of land use with no
consideration as to the merits
of those matters required under the relevant
Is the proposal justified on greenhouse gas abatement grounds?
52.32 calls for consideration of, amongst other matters, the calculation of
greenhouse benefits. The WEF Guidelines indicate
weight should be given to the contribution to Government policy objectives in
relation to the development
Lardner sought to question the contribution of the WEF to Victoria’s
greenhouse reductions due to its small capacity in comparison
facilities already approved or operating in Victoria. She suggests that failing
to obtain the views of Sustainable Energy
Association of Victoria (SEAV) is a
significant failing of this proposal.
the submission of Mr Chiappi we understand that there has been some difficulty
in obtaining the views of the SEAV due, apparently
from the failure of Council
to request such advice. The Council officer’s report instead relied upon
a Sustainability Victoria
report to draw the
conclusion that ‘there is a verifiable benefit, in environmental terms, to
the broader community in allowing the
development use of a wind farm’.
Chiappi submits that this WEF is expected to displace 51,000 tonnes of
greenhouse gas each year. This value is based on the turbines
mode with an
factor of 35%
adopted in the WEF guidelines as typical for WEF’s in
further details were provided as to whether the 35% capacity factor could be
achieved, other than the assurance from Mr Chiappi
that the applicant has wind
monitoring data indicating an average wind speed of greater than 7 m/s and
assesses the operation as
find ourselves in a similar situation to the
...[W]e have no data to suggest that the projected benefits
are over-stated, accurate or under-stated. Further, no scientific data
be available about the operation of other wind farms to enable us to draw a
sound and informed conclusion as to whether
projected benefits and outputs are
likely to be achieved.
The same point has emerged in other wind farm cases wherein independent
panels have suggested more reporting would be helpful to
address questions and
anxiety as to the contribution wind farms are making to greenhouse gas
abatement. We concur with that recommendation.
can only add to this recommendation. The assessment of WEF facilities places
great weight upon the greenhouse gas and sustainability
benefits. While giving
consideration to such policy weighting, it is nevertheless the role of an expert
tribunal, such as this,
to balance and weigh other considerations. The WEF
industry will potentially do itself an injustice if insufficient evidence is
presented in the trade off of noise, landscape and other amenity impacts for
longer term, justifiable sustainable outcomes for the
wider Victorian and
withstanding our concerns as to the lack of ‘hard data’ we were not
taken to any substantive evidence to challenge
the greenhouse gas benefits.
Rather there was an expression of concern about trends toward smaller
WEF’s and the wider impact
to communities. On this point we concur with
Mr Chiappi, that each proposal must stand or fall on its merits and more broadly
contention of smaller WEF’s producing more widespread impacts to local
communities does not necessarily follow.
regard to the longer term sustainable energy and greenhouse gas abatement
targets of the State Government, the ‘probabilities
weigh in favour of this proposal. Accordingly, the proposal addresses state
policies set out under clause 15.14
and the WEF Guidelines and the requirements
of clause 52.32.
Will there be unreasonable landscape impacts?
Schutt and Mr Williamson undertook landscape impact assessments on behalf of the
applicant and objectors respectively. Both relied
on previous Planning Panel
hearings and their interpretation of the WEF Guidelines to substantiate their
Indeed, there appears to be a variety of techniques that
have been applied in attempting to quantify landscape amenity impacts.
was stated in Perry:
The perception of landscape quality and
visual impact can be highly subjective in terms of the public and private
We concur and note the various technical attempts at quantification do not
advance the science further, as all appear reliant on some
form of eventual
subjective assessment of landscape quality.
do not intend to weigh up the merits of either of the approaches presented by Mr
Schutt or Mr
Instead, we have sought to consider the matter of landscape impacts in terms of
guiding principles as considered and summarised
....consideration of the impact of the proposal on
significant views, including visual corridors and sightlines, must have regard
- the existing
landscape values and features, including the extent to which the landscape is
altered and influenced by human interventions;
goals in the Planning Scheme to ensure appropriate landscape/visual amenity
outcomes, including protection of rural landscape
character and visual amenity,
and in particular, protection of features of natural scenic beauty and
- the level of
protection and values identified by the Scheme provisions and that is informed
by the Overlays (or lack of Overlays)
- the extent or
proportion of view that would be affected and the importance and value of that
view in the context of other aspects
- the fact that
wind energy facilities must be located where the wind resource is available so,
inevitably, there will usually be some
visual impact as also occurs with
broadcast towers and mobile phone towers.
Putting aside atmospheric
conditions and materials/colours for the turbines, the extent to which wind
turbines would be visible in
the public and private realms is influenced by the
• the distance between the viewing point and the wind turbines;
elements such as the topography and/or tree cover that, where positioned between
the viewing point and a turbine, provide
a masking effect;
- the ability to
enhance landscaping on the review site or abutting properties through additional
Visual impact will also be influenced by whether the
viewer is stationary (such as in a dwelling) or moving (such as in a motor
These questions and findings underline three important principles in an
assessment of impacts on dwellings (and, we think, the public
realm as referred
• visibility does not equate to an unreasonable visual impact.
• visual impact can be horizontal or vertical in its dimensions.
• visual impact can be mitigated by landscaping and
in Perry, we have also taken into consideration the fact that the WEF
Guidelines acknowledge that there will be some ‘degree of impact
landscape’ and that ‘consideration of the visual impact of a
proposal should be weighted having regard to the
Government’s Policy in
support of renewable energy
It is significant to our decision that the WEF Guideline also calls for
consideration of the:
...planning scheme objectives for the
landscape, including whether the land is subjected to an Environmental
Vegetation Protection Overlay or a Significant
this instance, while there is an acknowledgement of the overall scenic beauty of
landscapes in the Shire, there is no specific
mention of the Devon North
locality or the subject site in policy. The site is not the subject of any
overlay controls. Nor is
it in a rural conservation zone. Its zoning points to
a functioning rural landscape within which one can expect and do find
elements, such as cleared land, buildings, fences, tracks, pine
plantations, roads, sheds and other evidence of development and human
It is a modified landscape.
site’s broader locality contains land within Public Conservation and
Resource Zones (PCRZ). These include the state forest
to the south-west and
south-east and bushland along the waterways. However, even in PCRZ’s, a
WEF is a permitted use subject
to it not being in ‘land reserved under the
National Parks Act 1975’ and meeting the requirements of clause
52.23. In this
instance, the areas of PCRZ land are not noted for any landscape significance
nor are they land reserved as national parks.
In planning terms, the
consideration of landscape impacts is no less or more for these landscape
elements than they are for other
any event, the potential impacts from the WEF to the surrounding PCRZ land does
not arise from any development in it, but rather
from the way the WEF towers may
impinge on views that incorporate the forested areas. While we find that some
such views will incorporate
one or more turbine towers, the extent of this
impact is mitigated by other available views to forest or bushland landscapes or
distance views of the coastal plains.
these matters into account, and having viewed the subject site and surrounds we
make the following findings in respect to the
landscape context and the
potential impacts on the public and private realm views.
many other wind farm proposals, the impact to the landscape from a public realm
perspective was not hotly contested, although
it is one inherently contained in
the grounds raised by the respondents and is to be considered under the WEF
are two perspectives relevant to this matter. One is views from more distant
public realms and the other is views closer to
the site from such vantage points
a distance (greater than five kilometres), the subject hill is visible
predominantly from south, i.e. from the coastal plain.
Even then, views are
limited to where line of sight can be gained along the valley of Stony Creek,
due to the shielding of other
hills to the east and west and vegetation. The
view of the site in this context is that it is one of many low hills bordering
higher Strezlecki Ranges. The more local prominence of the hill is somewhat
diminished by the distance and broader context gained
in these more distant
public realm views.
hill is not located along or close to any major roads or tourist routes. It is
visible from various vantage points along Yarram-Morwell
Rd, but only at a
distance and within the context of a much wider landscape vista as set out
to the site, glimpses can be had from Bolger and Ingles Rd. However, there is
little opportunity for sustained views of the
site within one kilometre due to
screening by landform and vegetation.
impact of locating the seven turbines on this hill is not one we consider to be
significant given this site context and the balance
to be achieved between
locating WEF’s in locations suitable to catch the wind resource (i.e. open
or elevated landscapes) and
the overall contribution of the site to landscape
values. We are confident that while visible, there will be little adverse
to the landscape values when viewed from the public realm.
a public realm perspective, we find the proposal to be acceptable.
hotly contested are the impacts to private realm vista’s. We undertook an
extensive assessment of the potential impacts
of the proposal from the
respondents’ properties around the subject site. We also took advantage
of accessing the site to
enable reverse viewing from the site to various
locations of interest. In doing so, we were assisted by reference to the
and photomontages of Messrs Schutt and Williamson.
table at the appendix to these reasons summarises our findings with respect to
the impacts of the proposal to views obtained from
the various properties.
Peggie and Ms Lardner contend that many of the properties, particularly the 14
within one kilometre of the site have direct views
into the site, and those
closest to the site will have the form of the towers dominating these
agree that many residents have views of the site and the turbine towers will be
visible. However, for many of these properties,
these views are not the
principal views obtained from their dwellings or surrounding open space. In
these cases, the view to the
site is one of many available from the properties.
We do not consider that as such the visibility of some or all of the towers in
one view shed or along one view line constitutes such an adverse impact as to
warrant refusal of the WEF.
properties we consider to be most potentially affected are the existing
dwellings on the Stone and Neist properties. We acknowledge
that the Greenway,
Dohnt and Danuser properties are in proximity and have open views to the site,
but there are no existing dwellings
on these properties. We consider that the
siting, orientation and screening of the WEF can be accommodated when and if any
proposal is advanced for these properties.
Stone property is approximately 600m from the nearest tower (No #9). Views
toward this tower and surrounding towers (particularly
#3, #4 and #8) will be
gained from the rear outdoor living area. However this is not the only
landscape view available from this
area, with views in the arc from the
north-northeast through to the south-east (as available from the rear yard) not
Neist dwelling has views into the site from their rear open space and some
living area windows, although at 1.2km from the nearest
tower, the views toward
the WEF will be less impacted compared to the Stone property. Similar to the
Stone property, however, other
views from this property will remain unaffected.
inspected these properties we concur with Mr Schutt’s evidence that
vegetation screens, in the form of windrows of trees,
can be utilised to filter
the views of the turbines. We do not agree that such screening would enclose
these dwellings in an unacceptable
manner, as was put by Mr Williamson. We
consider that the degree of tree planting can be managed in the particular
it is required such that it is adequately setback from dwellings
to maintain open vistas and avoid the ‘closed in feeling’
this as being no different to existing windrow landscape elements we observed on
these and other properties.
acknowledge that the proposed towers of the WEF will be visible, more so from
some dwelling locations than for others. However
having regard to the
principles to be applied to the assessment of landscape impact we have set out
above and the site contexts we
observed, we do not find that the impact to be so
adverse as to warrant refusal of the application. Some management of the
can be achieved for those that are closest to the site.
Will there be unacceptable noise impacts to nearby dwellings?
WEF Guidelines highlight that noise emissions can arise from the mechanical
noise of turbine generators, the movement of the turbine
blades through the air
and from construction noise. The latter is of a short term nature and can be
regulated so at to not adversely
impact neighbours. The main concern raised by
the objectors and referred to by the Council is that of the longer term noise
from the turbine operations, i.e. the ‘swishing’ blade
number of objectors raised the matter of a buzzing noise that they could hear
when they visited the Toora Wind Farm. It was the
uncontested evidence of Mr
Marks that such noise is not from the turbine transformers but from the main
grid substation. It was
his evidence that such higher pitched noise quickly
attenuates with distance and is not one of concern. We also note that in this
instance, the main substation is at the site of the 66Kv connection and is not
located on the subject site.
assessment and impact of noise is perhaps the most contentious matter for
WEF’s. There appears to be much misconception
and misunderstanding of the
potential impacts from noise.
 We do not intend to deal with what
can only be described as ‘red herrings’, unsubstantiated materials
Instead we focus our reasons on the fact that the WEF
guidelines and application requirements of clause 52.32 require an assessment
noise impacts in accordance with the New Zealand Standard NZ6808:1998 Acoustics
– The Assessment and Measurement of Sound
From Wind Turbine Generators
(the NZ6808:1998 standard). The WEF guidelines require compliance with the
noise levels recommended
‘for dwellings’ in this standard. These
recommended levels are that the sound levels must be below the limit of:
- 40 dBA; or
- 5 dBA above
for whichever is the higher.
Harding raised a number of issues with the approach adopted in the NZ6808:1998
standard. We understand that he may not necessarily
agree with the approach set
out in this standard. Nevertheless it is the WEF Guideline and not the Tribunal
that has set out this
requirement for use and compliance with this standard. In
any case, in addition to the assessment compliant with the NZ6808:1998
Mr Marks also presented an assessment using a less conservative approach. Both
assessments indicate that the sound levels
emanating from the wind turbines will
be below the guideline limits and therefore are acceptable.
latter point is important. As was noted in
is not intended that compliance with the NZ6808:1998 standard or the guidelines
will result in the turbines being inaudible.
What compliance will result in
will be a lessening of noise such that it should not be a nuisance.
Harding questioned whether the Marshall Day assessment had been compliant with
the NZ6808:1998 standard, particularly that only
selected locations had been
monitored for background noise. The scope of the NZ6808:1998 standard includes
with the measurement of sound from WTG’s in
the presence of wind...’ at selected locations ‘at or within the
affected residential property boundary, and near the location of
representative positions for other residential locations within
the vicinity of
a WTG..’. 
We find that the measurement of background noise and the assessment of potential
noise levels at selected dwellings by Marshall
Day consultants and presented by
Mr Marks is consistent with the standard. In reference to the WEF Guidelines
and clause 52.23 we
are satisfied that the correct approach has been taken to
assess the matter of noise impacts.
we accept Mr Marks’ evidence that the assessment under the NZ6808:1998
standard is conservative, in that all the sound
levels from all the turbines
were added together and do not take account of ground attenuation or landform
screening. The reality,
as pointed out by Mr Harding, was that there would be
screening effects from landforms and effects from varying wind direction that
will modify the sound levels from each turbine depending on the location of each
summary of wind directions monitored for the
that the dominant wind directions (for 60-70% of the period from 1 July 2005 to
1 July 2006) are in an arc of WNW to SSW.
Having regard to this fact, we deduce
that those dwellings lying in the lee of these wind directions (i.e. to the NNE
to ESE) are
those that will most often be exposed to wind turbine generated
noise. These include the Stoner, Lynch and Danusar/Vyner dwellings,
dwellings in the Marshall Day assessment selected as being representative for
these areas. It is the evidence of Mr Marks
that the sound levels at these
locations will be within acceptable limits. Despite Mr Hardings’
protestations about the inadequacies
of the NZ6808:1998 standard, his own
calculations also indicate that the noise levels at these locations will also be
below the acceptable
limits set under the WEF
the absence of evidence to the contrary, we find that the assessment of noise
impacts has been undertaken in an appropriate manner
and that there is no basis
for refusal in relation to acoustic/ noise impacts.
Will there be other potential impacts to nearby dwellings?
decision guidelines at clause 52.32 require consideration of a range of mattes
in addition to noise and landscape impacts. Mr
Reakes raised concerns in his
submission not only in relation to noise and impacts to landscape, but also
shadow flicker. Ms Niest
raised additional concerns in respect to the use of
her land for horse and stud bull breeding and horse riding. Other matters to
consider include blade glint, electromagnetic interference, aircraft safety,
heritage and flora and fauna values. Apart from the
use of aviation safety
lighting, these latter matters were not raised as serious concerns or grounds
for refusal of a permit.
flicker is the affect created by the casting of shadows from the turbine blades
under exposure to sunlight. Mr Reakes raised
this issue in relation to the
health of his family and the risk of exposure to his dwelling. The assessment
of shadow flicker was
included in the permit application
materials.  The
prediction of possible shadow flicker hours per year indicated that those
properties to the east of the site were likely to
be most affected. For the
Reakes dwelling the predicted amount of shadow flicker is within the accepted
maximum limit (the predicted
exposure being 21 hours per year compared to the
maximum limit of 30 hours per year). We note that while this prediction is
to be the mean annual impact for the real case
calculations are inherently conservative due to assumptions that the turbine
rotor plane is always perpendicular to the sun’s
azimuth and continuous
operation of the turbines.
find that there is no unacceptable impact from shadow flicker from this
Aviation safety lights (night sky amenity impacts)?
was some concern raised in the matter of landscape impacts to the likely need
for a minimum of red aviation hazard lights to
be mounted on the three turbine
nacelles. The opinion was expressed that this would be an unwelcome intrusion
into the night sky
visibility of such lights is paramount for aviation safety. It was Mr
Williamson suggestion that the impact could be mitigated
by the lights being
shrouded so as only to be visible from the horizontal plane or higher, i.e. not
be visible from those on the
ground. We note that in correspondence filed with
Civil Aviation Safety Authority (CASA) also acknowledges that some shielding or
lighting design to prevent light escape below
the horizon may be contemplated to
reduce environmental concerns.
have framed permit conditions accordingly to require such lighting where
Stud cattle, horses and other agricultural use impacts
Neist raised her concerns that the WEF would have an adverse impact on the stud
animal and horse riding operations undertaken on
were not presented with any factual case histories of wind farms affecting farm
animals. We do not consider that the sensitivity
of breed horses in a
showground settings as put to us by Ms Neist is a comparable situation. In a
show ground setting there are
a variety of sights, sounds and other distractions
to influence an animal. This is not to mention the increased tension arising
from the competitive environment and presence of other horses. This is a strong
contrast to the potential influences of a wind farm
located over a kilometre
from open grazing paddocks.
if there were concerns as to the impact on farm animals, it would be surprising
that the subject site owner would offer his
property while still maintaining the
grazing of cattle and other animals.
find there are no grounds to disallow this proposal on this basis.
Is the site geotechnically suitable?
O’Neill gave expert evidence that the proposed trench for underground
cabling presented a potential risk of land instability.
we address this contention, it is appropriate to deal with the fact that under
cross-examination Mr O’Neill conceded
that he was the brother of one of
the objectors and that he had grown up in the area. The latter is less of a
however the fact that Mr O’Neill did not disclose what
can only amount to a possible conflict of interest to this Tribunal
disquieting and not in accordance with the tenor of Tribunal Practice Note for
Expert Witnesses, specifically the expert’s
duty to the
Tribunal.  That
Mr O’Neill is related to one of the objectors does not necessarily
disqualify him from providing his expert evidence.
However that he choose not
to disclose this information may well lead to a perception of bias and a
lessening of weight given to
his evidence. Such an outcome is consistent with
that addressed in Drewgod Pty Ltd and Knox
unlike the Drewgood matter, Mr O’Neill also conceded that his level
of expertise in some of the concerns he raised was limited. His answers under
cross-examination indicate his knowledge to have been gained as ‘a project
manager’ or from broad experience in projects
rather than as an engineer
who undertook detailed remedial design of the very issues he raised.
must be remembered that this Tribunal is an expert one. From time to time
Tribunal members will draw on their expertise to reflect
on the expert evidence
presented to them. We have done so in this matter and specific to Mr
O’Neill’s evidence we find
that his evidence is to be given the
weight accorded to the depth of his investigations, i.e. he has done no more
than a desk top
review of the site’s geological conditions and highlighted
possible matters to be dealt with in a more detailed site specific
He conceded as much under cross examination to Mr Chiappi and the questioning of
find that the matters raised by Mr O’Neill are not of such gravity as to
warrant the refusal of a permit. It is the view
of this Tribunal that many of
the issues he raised can be assessed and remedied by standard engineering means,
a fact that he was
reluctant to acknowledge.
Adequacy of access for construction
Lardner raised the matter of construction traffic access to the site via
Bolger’s Rd as being unsuitable and possibly presenting
a high degree of
conflict and traffic management issues. At the same time, the basis of her
argument was, in part, that logging
trucks utilised the same road network.
objectors cannot have it both ways, and we fail to see how a road network
capable of handling logging trucks cannot accommodate
the limited volume and
short term nature of traffic associated with the construction of the site. We
do not consider this ground
as one that should be seriously
CONCLUSION AND PERMIT CONDITIONS
follows from the above that we find the Council’s grounds for not issuing
the permit are not sustained. Nor do we consider
that the grounds of objection
from the local residents to be sufficient to warrant the refusal of a permit.
shall direct that a permit issue for the construction of the WEF, comprising the
seven proposed turbines and associated infrastructure.
In doing so, we have had
regard to the submissions on permit conditions and the matters set out in our
reasons. Additionally we
have considered issues of:
- Micro-siting of
towers resulting in tower locations different to those assessed, the possible
influences on noise and shadow flicker
and the need for ongoing monitoring and
responses as appropriate to these matters.
- The process by
which mitigation landscaping works can be undertaken on the Neist and Stone
properties to address visual amenity issues
set out in our reasons.
- Pre- and post
construction monitoring of electromagnetic interference with
- Bird and bat
- Wildfire risks
arising from the use and development of the WEF. In this respect we were not
convinced of the need for any special
requirements, noting that there is no
evidence of particular issues nor a wildfire management overlay applicable to
have prepared permit conditions accordingly.
Jeanette G Rickards
APPENDIX A TO P2691/2006
TABLE OF SITE INSPECTION ASSESSMENT OF LANDSCAPE AND VIEW LINE IMPACTS
Stone (Ingles Rd)
The nearest turbine, #9 is approximately 600m to the north-west. The
northern view shed of this property and dwelling will obtain
views of the
subject site and turbines #9, #3, #4 and possibly #8. Windrow planting of trees
along the northern boundary will filter
Greenway (Ingles Rd)
There is no dwelling present on this site. A dwelling location has been
indicated in the south-west corner of the property. At this
likely view would be toward the hill as well as down the creek valley. A future
house can be oriented to reduce visibility
of the turbines.
Greenway (Yarram-Morwell Rd)
The subject site lies approximately 2 km to the south-east of the nearest
turbine (#8). The site forms a small arc of distant views.
The dwelling is
generally located to take in coastal views to the south.
The dwelling is located approximately 1.8km to the east of the nearest
turbine (#9). The dwelling is bounded to the west by Mays
Bush State Forest
reserve. The subject site and hill are screened from view by this bushland and
its lower lying setting.
( Old Whitelaws Track)
The dwelling is located approximately 1.2km from the nearest turbine (#9).
Turbines #3, #9 and #8 would be visible with perhaps the
blade of #4. No
overshadowing or blade flicker affects will impact the dwelling.
The views of the turbines can be ameliorated by planting of tree screens
along the calving paddock fence line.
Neist Dairy (Bolgers Rd)
The dairy building has been converted to visitor accommodation. The views
from building windows are orientated southward, down the
valley, or northward up
the valley. Turbine #9, the nearest tower, is located approximately 1.2km to
the southwest. Turbines #3
and#9 are visible within oblique views to the west.
The upper tower or blades of turbines #4 and #8 may being visible within these
oblique views. The major views down the valley remain unaffected.
Hay (Old Whitelaws Track)
Views from this property are principally orientated to the south and east
over Yarram. The subject site is well screened by trees.
Moffatt (Old Whitelaws Track)
This dwelling is well screened from the subject land (and views of the
turbines) by trees. Parts of turbines #3, #9 and #4 may be
visible from less
sensitive parts of property, but not in principal view lines. The nearest
turbine, #9 is located 1.8km to southwest.
Savahl (Old Whitelaws Track)
This dwelling is located on the top of an exposed ridge line that gains a
wide arc of views to the south, including to the south-west
toward the subject
site, as well as to the coast and Toora Wind Farm. Principal orientation of the
living area windows is to views
to the south (where the subject site is on the
periphery of the principle view line). Side windows provide views to east and
The dwelling is located 1.9km to nearest turbines #3 and #9. The view of
the turbines forms only a small portion of the available
view shed and is
peripheral to the principle view line.
McVean (Old Whitelaws Track)
There is no dwelling located on this property. This lot lies behind the
rise of the Savahl property and is screened from views of
the subject site.
Principal views are towards the east and west.
Danuser/Vyner (Old Whitelaws Track)
The subject site is not visible from this property.
Danuser/Vyner (Bolgers Rd)
There is no property present on this property. A proposed dwelling site on
the flank of the hill has been indicated at 690m from
turbine #9. Potentially
turbines #3, #4 and #9 would be visible along with part of #8. Design and
landscaping would be available
to mitigate views of the turbines if a dwelling
were to proceed.
Telling (Mowats Rd)
This dwelling is located approximately 1.7km north-east of Turbine #9 and
#3. Views to these turbines and possibly the upper portions
of the other
turbines are screened to a large degree by shedding and vegetation on this
property. Principal views gained from inside
the dwelling are not toward the
site, although oblique views are possible from the living room.
Lynch (Bolgers Rd)
The nearest turbine, #9 is 770m from the dwelling. The dwelling is set low
in the landscape, adjacent Stony Ck, with limited view
sheds due to the steep
rise of the land to the west of the property. Views of turbines #3, #4 and
upper portions or blades of #1,
#9 and #8 are likely to be seen from various
vantage points around the open space areas of the property. Some clearer views
be gained from the entry driveway. Views to the subject site, and
turbines, are filtered by existing vegetation and buildings.
Reakes (Bolgers Rd)
Similar to the Lynch property, this dwelling is set low in the Stony Ck
valley. It has a limited veiwshed, oriented down the creek
valley. The nearest
turbine, #9 is located 850m to the southwest. Views from the dwelling are
limited and not likely to be impacted.
Various locations in the open space
provide vegetation filtered views of the upper portions of turbines #3 and #9,
part views of #4, #8 and #6. Additional vegetation may reduce
these views without adverse amenity impact.
Heibert (Bolgers Rd)
The dwelling on this property has its principal living area views to the
east, with upper rooms oriented to the north. Some windows
and a portion of the
main glazing look to the south. Turbine #1 will be visible from the rear yard
(looking to south-west). Turbines
#3 and #4 will be visible from main deck and
east facing window, however a windrow of recently planted eucalyptus trees will
filter this view.
Harrington (Bolgers Rd)
The principal orientation of the dwelling in this property is to the north,
a viewshed unaffected by this proposal. Part of turbines
##1, #3 and #4 may be
visible from outside spaces., but the subject site remains largely screened by
vegetation and the landform.
Tucker (Bolgers Rd)
The dwelling and main outdoor areas of this property have a northern aspect
that remains unaffected by the turbines.
Dohnt (Bolgers Rd)
There is currently no dwelling located on this site. The easterly view
shed of this property takes in the subject land, with all
turbines or parts
thereof being visible from this property . However the principal view shed from
the current shed location or dwelling
location (subject to a notice of decision)
is toward the south and the coast. The locations of turbines #5, #6and #8 are
to these views. Use of vegetation and orientation of the new
dwelling can be used to filter views further and reduce the impacts.
Forder (Bolgers Rd)
The dwelling on this property has no windows facing toward the subject
site. A deck on the southern side of the dwelling is principally
toward the southern and eastern view sheds. The later includes oblique views of
the subject site. The nearest turbine,
#1 at 500m (approx) is on the periphery
of this view. Turbines #5 and #6 lie at 750 and 1km from this dwelling. Some
may filter the peripheral views without unduly impacting the
principal views to the coast.
Burgoyne (Bolgers Rd)
Similar to the Forder property, this dwelling is not oriented to take in
views of the site. The nearest turbine, #1 at 600m (approx)
is on the periphery
of the principal view line to the south and south-east (i.e. toward the
coastline). Turbines #5, #6 and #8 lie
along the periphery of the principle
line of view, but being at distance have less impact.
Strobel (Bolgers Rd)
The subject site is not visible from this location.
Jung (Bolgers Rd)
The dwelling on this property is principally oriented to the east. An
elevated deck affords views to the south and the subject site
at a distance of
almost 900m. Other views are available from this deck.
Stewart (Bolgers Rd)
Views from this dwelling to the subject site are well screened by roadside
vegetation. Those glimpses of the site that are possible
through the vegetation
are diminished by the distance of approximately 1.2km to the site. The
principal vista’s from the open
space around the dwelling are down the
valley (in a southerly direction) and remain largely unaffected. Views from
within the dwelling are not affected.
 More commonly
termed wind farms.
 Applications for
WEF’s with a generating capacity 30MW or less are submitted to the local
Responsible Authority. Proposals
for more than 30MW or more submitted to the
Minister for Planning: Amendment Clause 61.01 of the Wellington Planning Scheme.
 These details
were set out at section 3 of Mr Peggies submission.
 In accordance
with section 60 of the Victorian Civil and Administrative Act 1998.
 The parties as
advised to us were Margaret Greenaway, Pauline Kimber, Geraldine Savahl, David
Moffat, Deborah Tucker, Paul Forder,
Anna Jung, Lorraine Strobel, Michael
Telling, R Handley and Tracey Burgoyne.
  VCAT
 Ibid at
 The hub height
is a combination of the tower and turbine nacelle.
 The original
application was for a turbine blade radius of 46.25 metres, however Mr Chiappi
sought a condition to allow an increase
to not more than 48m due to potential
future changes in available turbine technology.
 Clause 35.07
of the Wellington Planning Scheme.
 Found at
 Clauses 15,
15.14, 17.02, 17.04, 17.05 and 18 respectively.
21.01, 21.04, 21.05 and 21.06.
 Clause 22.02.
Energy Authority Victoria, May 2003.
advice dated 1 August 2007.
 Clause 35.03.
 See for
example under the decision guidelines the requirement to consider whether the
dwelling is reasonably required for the operation
of the agricultural activity
conducted on the land.
 Clause 35.07.
 Clause 22.02.
 Clause 21.04
(Settlement) recognises the importance of legitimate rural living areas and the
need to discourage rural living activity
in agricultural areas.
 See also
Perry v Hepburn SC  VCAT 2122 at paragraphs  to .
 In other
zones the use of land for WEF’s is innominate.
 At page 23.
 Report to
Sustainability - Victoria Assessment of Greenhouse Gas Abatement from Wind Farms
in Victoria, McLennan Magasanik Associates Pty Ltd, July 2006.
 At the noise
reduced mode, each turbine has a rated power generation capacity of 1.825MW or
91.25% of the full 2MW capacity.
Sustainability Victoria defines the capacity factor as the value of the annual
MWh / 8760hrs x max MW.generation.
 Appendix 1 of
the WEF Guidelines.
 Perry v
Hepburn SC  VCAT 2122.
  VCAT
2122 at paragraph .
 We note the
recent publication of the Windfarms and Landscape Values National Assessment
Framework by Australian Wind Energy Association and Australian Council of
National Trusts (27 June 2007) also highlights that while establishing
framework it does not provide ‘a set of detailed prescribed methods, tools
or techniques’. The latter are expected
to develop over time by
  VCAT
2122 at paragraphs  to .
Guidelines at page 24.
 This included
matters relating to wind shear effects, infra-sound (low frequency sound),
intermittent effects and sensitivity of
  VCAT
2122 at paragraph .
 See sections
1.3 and 4.5.1 of the NZ6808:1998 standard.
 Presented in
correspondence of 26 August 2006 from Dr Litterman Consulting.
 Mr Harding
submitted that this would not be the case if tonal penalties were added to his
estimates of total noise levels. However,
we accept the evidence of Mr Marks
that there are no tonal penalties to be added for these wind generator turbines.
Flicker Forecast (report No SWP-2007-04-16-SYN) by DLC Dr Litterman Consulting
dated 16 April 2007.
 As above, in
section 5, page 9 of 31.
Aviation Safety Authority dated 5 September 2005.
 As set out in
section 2 of PNVCAT 2 – Expert Evidence (1 September 1999 and as amended 2
  VCAT
933 at  to .