What does this decision mean for wind farm proponents / operators?
The decision provides clear determinations on issues that are commonly raised by objectors to wind farm proposals. The decision makes it clear that the more a proponent is on the front foot in addressing these issues, the smoother the approvals process should run. We recommend that proponents take a proactive approach in drafting permit approval conditions, early in the application process, to ensure that requirements are able to be met both practically and commercially.
On 7 March 2018, the Environment, Resources and Development Court of South Australia (the Court) approved the 375MW, 103 turbine Palmer Wind Farm Project (the Project).
Mid Murray Council's (Council) decision to approve the Project was appealed in March 2017 by a group of residents on a number of grounds, including impacts on flora and fauna and the health of the community.
The decision is notable because of the extensive range of issues that were considered by the Court in detail.
During the hearing, evidence was provided by experts in the fields of acoustics, psychoacoustics, landscape/visual, flora and fauna, aviation, fire, health and town planning.
In relation to noise, the expert evidence preferred by the Court, was that which took into account the Wind Farms Environmental Noise Guidelines 2009 (the Noise Guidelines). The Court found that the Project complied with the Noise Guidelines and that there was no evidence that the noise impacts from the wind farm would interfere unreasonably with other land uses.
Objectors raised concerns about the potential for adverse effects on health from infrasound. The Court accepted that some level of infrasound from wind turbines is to be expected, but that this is not greater than other non-natural or natural noise sources such as the breaking of waves. The Court relied on a recent study by Tobin, Brett and Colagiuri, on the effects of infrasound from windfarms, which indicates that low frequency noise or infrasound generated by wind farms is not a health concern.
Flora and fauna
Steps taken by the developer to modify the original proposal and minimise impacts on flora and fauna were considered by the Court to be adequate. Such steps included the implementation of buffer zones from any eagle and peregrine falcon nests.
Shadow flicker, blade glint, blade throw and ignition risk
The Court accepted expert evidence that the likelihood of injury or damage from blade throw was remote, and that blade glint is generally not an issue for modern turbines when the blades are coated with non-reflective paint. The expert evidence presented relied upon the Australian Draft National Wind Farm Development Guidelines published by the Environment Protection and Heritage Council in 2010 (the Draft Guidelines) with respect to shadow flicker. The Court accepted the evidence that the predicted annual shadow flicker of the Project was within the recommended limit of the Draft Guidelines. The Court found that the Project will not pose any greater ignition risk than other land uses in the Rural Zone and will minimise the ignition risk posed by the wind turbines.
The Court considered the impact of the Project on both aerial and ground based firefighting, especially near the turbines. The Court was satisfied with the expert evidence that aircraft can operate quite close to obstacles such as turbines, subject to visibility, and that whilst the turbines may change routes and tactics, it would not preclude aerial firefighting or create an unacceptable risk. The Court looked favourably on the fact that the developer had undertaken to shut down the wind farm if a fire occurred or was threatened, and to install water tanks.
Objectors raised concerns as to the impact of wind turbines on proposed flight paths, especially if located in the vicinity of an airport or flight school. The Court accepted that in certain cloudy conditions certain flights may be affected, however, there are alternative routes available and alternative times for flights, therefore the issue was not sufficient to counter the Project.
An expert in the field of Electronic Systems Engineering raised concerns as to whether the grid stability would be disrupted by the addition of a high capacity wind farm. The Court heard that, in South Australia, approval from the Essential Services Commission of South Australia, the Australian Energy Market Operator and the connecting Network Service Provider, is required before the commissioning of a generator, and agreed with the expert that this regulatory system sets performance standards so that the Project will not adversely impact power system security.
Heritage and dry stone walls
The Court highlighted that the Aboriginal Heritage Act 1988 imposes an ongoing obligation on developers and noted that whilst dry stone walls may not have any formally recognised heritage value, it will be viewed favourably if developers undertake to avoid impacts upon dry stone walls, and where unavoidable, to minimise and mitigate such impacts.
How we can help?
HWL Ebsworth has advised on over 50 renewable energy projects, involving all aspects such as planning and environment, development, connection, supply, construction and operation. Our market leading knowledge in this sector enables us to deliver value for clients beyond the provision of legal services, regardless of business type or any given project phase.
To discuss the Court's findings in this judgement, and how they will affect your business, please do not hesitate to contact us.
This article was written by James Lofting, Partner and Tushka Sridharan, Law Graduate.