Tarwin Valley Coastal Guardians Inc. (TVCG Inc.) (No. A0042978C) C/- The Secretary
26th February, 2015
Ms Jeanette Radcliffe Committee Secretary Select Committee on Wind Turbines PO Box 6100 Parliament House Canberra ACT 2600
Dear Ms. Radcliffe,
Please accept this submission from Tarwin Valley Coastal Guardians Inc. (TVGC) to the Senate Select Committee on Wind Turbines.
In this submission, we detail some of our experiences of the planning and environment assessment, approval, compliance and enforcement processes for the Bald Hills Wind Energy Facility (BHWEF), Tarwin Lower in South Gippsland, Victoria during its pre- construction and construction, but not post-construction, stages. At the time of writing, the BHWEF had not commenced generation.
The timescale covered by this submission is 2004 to current.
Our submission is made in two parts: A and B.
The attached document is Part A (hereafter referred to as the “TVCG Part A Sub”). It was commissioned by TVCG Inc. and prepared by consulting researcher and advocate, Ms. Cheryl Wragg, in consultation with TVCG members. TVCG Part A Sub refers to statutory planning and related aspects of WEF regulation.
The TVCG Part B SubReport has already been submitted separately
The TVCG Part B SubReport was commissioned by TVCG in 2009 and refers to BHWEF statutory environmental assessment processes. It was prepared by evolutionary biologist, Dr. Lucas Bluff, in consultation with TVCG members.
Our submission refers to two distinct regulatory areas for wind energy facilities (WEF) – statutory planning, and the environment, and refers to the following Senate Select Committee ToRs:
• how effective the Clean Energy Regulator is in performing its legislative responsibilities and whether there is a need to broaden those responsibilities (ToR ‘b’); • the implementation of planning processes in relation to wind farms, including the level of information available to prospective wind farm hosts (ToR ‘d’ ); • the adequacy of monitoring and compliance governance of wind farms (ToR ‘e’ ); • the application and integrity of national wind farm guidelines (ToR ‘f’ ); • the effect that wind towers have on fauna and aerial operations around turbines, including firefighting and crop management (ToR ‘g’).
We define ‘fauna’ in (g) to include wildlife.
1
We would welcome the opportunity to present to the Senate Select Committee about our submission. We would greatly appreciate if the Committee was able to schedule public hearings in Melbourne to facilitate easier attendance by TVCG representatives.
If you have any questions about the contents of our submission please contact Cheryl Wragg
If the Senate Select Committee is organising presentations, please contact me about TVCG representation.
Yours sincerely,
Mr. Lindsay Overall Secretary TVCG Inc.
2
Tarwin Valley Coastal Guardians Inc. (TVCG Inc.)
TVCG Part A Submission to the Senate Select Committee on Wind Turbines
Prepared by Ms. Cheryl Wragg in consultation with TVCG members
Tarwin Valley Coastal Guardians Inc. (No. A0042978C) Mr. Lindsay Overall, Secretary Mr. Don Jelbart, President
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Index
1. About TVCG Inc……………………………………………………. 5 2. Site and surrounds of the BHWEF……………………………… 5 3. Details of the BHWEF……………………………………………… 6 4. Objections to the BHWEF…………………………………………. 6 5. 2004 Planning Panel’s Regulatory Approaches………………. 9 6. Victoria’s WEF statutory planning & regulation and comments about the Panel’s regulatory approaches ….………………….. 12 6.1 Victoria’s WEF statutory planning arrangements……. 12 6.2 Regulating Bat and Avifauna Impacts………………….. 14 6.3 Protection of Coastal landscape………………………... 14 6.4 Regulating Acoustic Emissions…………………………. 15 6.5 Regulating residential amenity of future dwellings at pre WEF amenity Standards……………………………....19 7. Sorting out permit breaches and regulatory failures the VCAT way……………………………………………………………………. 23 8. Monitoring and compliance governance of BHWEF during construction…………………………………………………………. 28 8.1 Cultural Heritage Management Plans…………………... 29 8.2 Unauthorised relocation of Turbines and Substation..30 8.3 Gullen WEF and a New South Wales – Victoria comparison…..……………………………………………… 32 8.4 Some BHWEF impacts on local flora and fauna…….. 33 9. A Commonwealth Wind Energy Regulator…………………….. 35
10. References…………………………………………………………... 37
11. Appendices………………………………………………………….. 38
Front Cover (p 3): (Unauthorised) BHWEF Civil Design Plans (As Built), northern sector, December 2013
4 1. About TVCG Inc.
TVCG Inc. was formed and incorporated in 2002 by residents of the Bald Hills/Tarwin Lower region in South Gippsland, Victoria. It is a voluntary, not-for-profit association focused on environmental conservation and protection of the lower Tarwin River valley and nearby coastline.
TVCG’s Statement of Purposes is:
• To promote the protection and conservation of the natural environment of the Tarwin Valley region on public and private lands including its coastline, parks, conservation and reserve areas, remnant vegetation and waterways;
• To lobby all levels of government to resource the extension of conservation areas and to maintain and protect existing designated conservation and reserve areas;
• To encourage local residents and visitors to value the natural environment of the Tarwin Valley region;
• To form alliances with other conservation organisations and/or community based groups to progress matters compatible with the purposes of this Association;
• From time to time to adopt and employ such other strategies which may enhance or progress the protection and conservation of the natural environment of the Tarwin Valley region .
Most TVCG members are local farmers and landowners with a strong environmental and conservation ethic pre-dating the formation of the association. Our members established Friends of the Cape Liptrap Peninsula including the Bald Hills and Kings Flat Reserves . Many of us are also active and committed members of our local LandCare group.
2. Site and surrounds of the BHWEF
Section 1 of the TVCG Part B SubReport provides a detailed description of the environmental context of the BHWEF.
Residents and local landowners are strongly attuned to the natural beauty and conservation values of our ‘Prom Territory’ neighbourhood and consider we are fortunate to be its custodians and carers. While bush clearing was a pre-requisite of land ownership imposed by the late 1940s Victorian government, Shire of Woorayl, and Rural Development Bank, our families left intact significant tracts of remnant vegetation. These continue to provide habitat for flora and fauna. Over the decades we have preserved these by using sensitive farming practices, supplementing these with plantings and looking after our area’s dedicated conservation reserves. The 2004 Planning Panel described some of our efforts thus: ‘astonishing quantities of native plantings had taken place’. 1
The ridge, upon which the northern section of BHWEF now stands, rises above the larger Tullaree wetland. Historically, this area is rich in biodiversity. Despite drainage works, the wetland still fills up in winter providing important habitat for many faunal species. These include species deemed to be matters of national environmental significance under the Commonwealth’s Environment Protection and Biodiversity Conservation (EPBC) Act,
1 2004 Bald Hills Wind Farm Project EES, EES Supplement and Called In Permits Report, 24 June 2004 p 212 5 including migratory birds. The southern section of the BHWEF is one kilometre or so from the coastline and directly abuts the Cape Liptrap national park.
Taken together with its close proximity to the coastline, the area provided a rich food source for Gunnai-Kurnai and Bunurong peoples. Not surprisingly, the 1763 hectares used for the BHWEF are scattered with aboriginal archaeology including human grave sites.
There are twenty three residential properties at or within two kilometres of the BHWEF, and between eight -eleven 2 other properties directly adjoining the BHWEF entitled to house sites, by right of Victorian and South Gippsland Shire planning schemes. Five of the twenty three residential properties belong to landowners participating as ‘stakeholders’ in the BHWEF development. Two ‘stakeholder’ property owners currently live in situ.
3. Details of the BHWEF
The BHWEF comprises 52 RePower MM 92 turbines. The hub height of each tower is 80 metres with a rotor tip height of 124.75 metres. Each turbine consists of a tower and a 3-bladed rotor (92.5 metres diameter) standing on a reinforced concrete foundation. The tower is made of welded steel segments. Each turbine nacelle, rotor, and hub weighs 96.5 tonnes 3. The turbines are rated to generate 2.05 MW. All turbine componentry is fully imported.
The BHWEF Planning Permit was first issued referring to the use of Repower MM 82 turbines which are smaller and shorter than the MM92 model. In 2009, the Minister for Planning approved a secondary consent application by the developer to change the turbine model.
BHWEF is not the first WEF in Gippsland4 however, to date, it is the largest.
Services to the BHWEF include more than twenty seven kilometres of internal roads, a laydown area for each turbine, a substation measuring 100 metres by 50 metres, an underground electrical cabling system, a 30+ kilometre transmission line to Leongatha South grid connection, a ‘met mast’, and various temporary buildings and services associated with construction. The main entrance is accessed from Buffalo-Waratah Road, Tarwin Lower.
This $400million project has a very considerable construction footprint. The large reinforced concrete turbine foundations and all services had to be built on site. In addition, the site was extensively ‘groomed’ involving the removal of hilltops and in one case, a whole hill, large cuttings excavated to accommodate internal roads, and onsite quarrying for construction materials. The construction programme was accompanied by large volumes of heavy vehicle and over dimensional vehicle movements into and from the site.
4. Objections to the BHWEF
The high regard with which most local residents hold the neighbourhood environment was expressed in the number and depth of objections to the BHWEF planning permit application made during the 2004 Planning and Environmental Panel assessments. In addition to environmental, visual landscape and residential amenity degradation, and acoustic emission
2 BHWEF assessed and determined the number of eligible farm tenement properties to be seven. The correct number is eight and may be as high as eleven. 3 Totalling more than 5018 tonnes of rotating machinery and equipment perched 80 metres above ground. 4 Toora WEF: 12 turbines, commenced operating in 2001, and; Wonthaggi WEF: 6 turbines, commenced operating in 2005. 6 impacts, local residents objected to local tourism and land values being adversely affected; the destruction of cultural heritage; damage to local road networks: and, the creation of social divisions in the local community.
A total of 1422 5 submissions and public comments, mostly objecting to the development, were made to the EES and Planning Panel. In addition to those of local residents, objections were also made by government, and environmental and heritage organisations including the Australian Conservation Foundation, Westernport Bird Observers Club, Bird Observers Club of Australia, Victorian National Parks Association, South Gippsland Conservation Society, National Trust of Australia, Gippsland Coastal Board, Latrobe Valley Field Naturalists, Australian Plants Society Victoria, Kilcunda-Powlett River Foreshore Committee, Parks Victoria West Gippsland Division, Tarwin Landcare Group, Inverloch Ratepayers and Residents Association, Tarwin Valley Coastal Guardians and South Gippsland Shire Council (SGSC). Some of these objections identified significant deficiencies in the Victorian regulatory framework as discussed in Section 6 (below).
TVCG’s comprehensive submissions into the 2004 Planning Panel process presented expert evidence from seven specialists including Dr. Fritz van den Berg, a Netherlands based acoustic scientist, and local acoustic engineer, James Fowler 6.
TVCG’s active objections did not end with the approval of the permit. We have continued to advocate against BHWEF for twelve years, taking a whole of range of actions including:
• 2009 - Commissioned Dr. Lucas Bluff to prepare a report on the environmental assessment process for BHWEF;
• 2010 - applied to VCAT challenging the 2009 secondary consent approval granted by the Planning Minister. This had allowed the turbine height to be increased from 115 to 135 metres and the rotor diameter up to 100 metres;
• 2012 - objected at a VCAT hearing, brought on by the developer to compel the Planning Minister to endorse the BHWEF development plans;
• Actively lobbied every Victorian Planning Minister and Federal Environmental Minister asking them to stop the project and identifying tangible reasons why;
• Engaged in media activities to publicise BHWEF breaches of process and permit conditions (ongoing);
• Lobbied Federal MPs and Senators to bring problems with the BHWEF project to the attention of the Federal parliament;
• Raised complaints with the Federal Department of Environment, and the State Department of Planning (in its various configurations) regarding process and permit breaches;
• Petitioned SGSC requesting its diligence in policing permit conditions and compliance matters;
• Since construction of the BHWEF commenced in late 2013, closely scrutinised the developer’s degree of adherence to prescribed planning permit conditions;
5 This includes submissions to the 2003 EES panel. 6 Acoustic engineer with Graeme E. Harding and Associates. 7
• Reported apparent permit breaches to the range of relevant regulatory authorities with responsibility for policing permit conditions.
Because of our enduring commitment to conserve and protect our neighbourhood, over the last twelve years TVCG and our members have carried a heavy load. This burden has been imposed on us by the inappropriateness of this WEF and the failure of Victoria’s planning and environmental regulators to do their job. It is difficult to estimate accurately the total costs we have incurred from their failure, many hundreds of thousands of dollars in cash and time.
The Victorian Environmental Defender’s Office (EDO) refused to provide us with probono legal assistance. At our last attempt, the EDO advised us their policy supported all WEF developments.
We note that the EDO has a representative on the Management Committee of the Victorian Wind Alliance 7, a WEF industry lobby.
Since 2002, we have tested the assertions by legal counsel for the developer to the 2004 Planning Panel who argued that:
“Fear often leads people to fail to appreciate the true nature of the proposal or to pessimistically assess its prospects of success. There is a natural human tendency to exaggerate difficulties and problems that may occur in the future. We submit that this is particularly the case where the information about the impacts is of a technical nature and difficult for lay people to comprehend and where there has been a strong community campaign which has provided unreliable information about wind farms”. (Planning Panel Report p 265)
As we now know, in 2004 we were not being pessimistic nor did we exaggerate the difficulties and problems of this project. If anything, we underestimated the problems, particularly the Victorian government’s inertia to address systemic WEF regulatory dysfunction and failure.
7 http://www.vicwind.org.au/meet_us#committee 8 5. The 2004 Planning Panel’s Regulatory Approaches
The 2004 BHWEF Planning Panel Report runs to some 317 pages plus appendices. Our submission concentrates on those matters brought before the 2004 Planning Panel and the Panel’s responses, relevant to the Senate Select Committee’s ToRs.
Senators and other readers may wish to refer to the Panel’s Recommendations, appearing as Appendix A to this submission. We have not included the Planning Permit to constrain our submission to a reasonable size. Referring to Panel recommendations and the permit is not an essential requisite. Wherever we discuss particular recommendations and permit conditions, they are produced in the body of the submission for the reader’s convenience.
Our submission and its treatment of the Panel’s investigations and outcomes are confined to:
• specific matters subject to regulation; • the range of regulatory approaches taken by the Panel; • the regulatory systems with responsibility for the BHWEF, and; • the effectiveness or otherwise of regulatory approaches and regulatory systems.
It is not possible to talking sensibly about BHWEF regulation without providing some details about the Planning Panel’s deliberations and the Planning Permit that ensued. Our intention is not to overwhelm the reader with detail but, rather, to provide enough information to reveal the mechanics of WEF regulation, as well as our experience of where and why WEF regulation is failing.
Within the planning assessment and regulatory process, to date the 2004 Planning Panel stands as the single most detailed investigation to have scrutinised the BHWEF project. Quality submissions brought forward by a large number of objectors, including TVCG, revealed the complexity of impacts arising from the BHWEF project in particular, and WEFs more broadly.
The Panel sifted through the various impacts, sorting them into those matters to be regulated from those that were not. The Panel also identified and made recommendations to the Minister about its discovery of various systemic regulatory deficiencies requiring attention to improve regulation, compliance and enforcement.
BHWEF Planning Permit TRA/03/002 has 14 pages listing some 39 major conditions and some 67 sub-conditions. These conditions aim to translate the major considerations and recommendations of the 2004 Planning Panel Report into a statutory form. The relationship of the planning permit to its Planning Panel Report is akin to that between a piece of legislation and its second reading speech. Just as a second reading speech can explain legislators’ intentions so, too, a Planning Panel Report sheds light on the context, logic and intention of the conditions appearing in the planning permit.
The journey from Panel Recommendations into Permit Conditions is not a direct transposition but, rather, an interpretative process used by statutory planners to create a regulatory instrument – the Planning Permit.
For reasons of brevity and concision we have identified five major types of regulatory approach taken by the Planning Panel in response to the matters brought before it. Within each category, we have listed the topics for regulatory action, the related Panel recommendation numbers and the related planning permit condition numbers. By way of example, we have included Category 6 referring to a matter the Panel acknowledged to be more correctly dealt with at law rather than by regulation. 9 Category 1 - The matter considered by the panel was BHWEF environmental impact regarding matters of national environmental significance – protection of bats and avifauna.
The Panel found the proponent’s supporting information to be of insufficient quality to establish the level of environmental impact, as required by State and Commonwealth environmental legislation. The Panel made specific recommendations for the proponent to review their supporting information to the satisfaction of the Minister. The Panel recommended planning permit approval conditional on the completion of the review, subject to the Minister’s satisfaction.
Panel Recommendations: 10, 11 and 12. Permit Condition: 17.
Category 2 - The matter considered by the Panel was BHWEF impact on coastal landscapes. The Panel identified and accepted that this matter would be better managed using a well informed, soundly structured and consistent State wide planning and environmental regulatory framework. Because the Victorian government had not yet devised that framework but did have planning policy ‘on the books’ supporting WEF development 8, the Panel itself investigated the particular matter and found the impacts were acceptable.
However, the Panel also found that there would be high visual impact in and around areas with closer proximity to the BHWEF. The Panel made specific recommendations to reduce the local visual impact and protect the local visual amenity of residents.
The recommended approaches were: relocation of the Bald Hills Wetland Reserve bird hide; explore development of a wind energy and reserve interpretative facility; a roadside and wind break management plan to address pine tree loss and landscape management on specified roads; proponent contribution/s to onfarm landscape enhancement programs such as Landcare, and; screening and planting around residential dwellings and properties.
Panel Recommendations: 1, 2, 3, 4, 5, 21 and, 22. Related Planning Permit Conditions : 5, 6, 7 and 30.
Category 3 - The matter considered by the Panel was acoustic emission regulation.
The Panel found this matter needed to be regulated and recommended some regulatory approaches. However, it also found the acoustic emission area warranted regulatory caution due to a history of systemic problems and regulatory deficiencies. The Panel recommended the Victorian government enhance regulatory arrangements and improve the regulatory system for acoustic emissions.
Panel Recommendations: 13, 14, 15, 16, 17, 18, 19 and, 20. Permit Conditions: 18, 19, 20, 21, 22, 23, 24 and 25.
Category 4 - The matter considered by the Panel was BHWEF impact on the residential amenity of future houses on agricultural tenements larger than 40 hectares.
The Panel found that existing provisions at that time for WEF development in Victoria’s Planning Scheme (VPS) and related Victorian Planning Policy- Wind Energy Facilities (VPP-WEF) did not indicate whether future houses on Rural Zoned land adjoining WEF
8 Planning Policy Guidelines – WEF, 2002, revised 2012 10 proposals should be taken into account by the proponent. It also found that the owners of adjoining existing agricultural tenements over 40 hectares should be entitled to enjoy pre WEF amenity standards for future agricultural dwellings from WEF noise (acoustic emissions), flicker and other intrusions.
The Panel recommended that the proponent assist property owners to identify the best locations where their amenity would be protected. The Panel also identified future dwelling development that would not be protected. In those cases, responsibility for amenity standards would reside with the developer, not the WEF
Panel Recommendations: 25, 26, 27 and, 28. Related Permit Conditions: 28 and 29. Category 5 - The matters considered by the Panel were BHWEF design/development plans, construction management, erosion and sediment pollution control, cultural heritage protection, native vegetation management, pest animal management, lighting, aviation safety clearance, wildfire prevention, hydrocarbon and hazardous substance plan, telecommunication and reception, security, emergency management, and traffic management.
The Panel recommended regulating these matters using existing well established planning and environmental policy and related regulatory arrangements.
Panel Recommendations: 6, 7, 8, and 9. Related Planning Permit Conditions: 1, 2, 3, 4, 8, 9, 10, 11, 12, 13, 14, 15, 16, 26, 27, 31, 32, 33, 34, 35, 36 and, 38.
Category 6 - The matter considered by the Panel was BHWEF impact on adjoining/surrounding land/property values.
The Panel decided this matter could only be resolved at law, outside of the planning assessment process. The Panel made no determination or recommendations.
11 6. Victoria’s WEF statutory planning & regulation and comments about the 2004 Panel’s regulatory approaches
6.1 About Victoria’s statutory planning arrangements for WEFs
In 2004, the wind energy industry in Victoria was still quite new. Then, as now, WEF regulation was a complex matter involving an array of regulatory systems spanning Federal, State and local government jurisdictions, laws and regulations, planning policy frameworks, regulatory agencies, compliance and enforcement authorities.
Table 1 is a sample of the WEF regulatory arrangements.
Jurisdiction Regulator Legislation/ Planning Policy; Guidelines Regulation Common- Federal Minister for the Commonwealth Renewable 2009 Significant Impact wealth Environment; Energy (Electricity) Act 2000; Guidelines for 36 Migratory Commonwealth Clean Energy Commonwealth Renewable Shorebird Species, Migratory Regulator; Energy (Electricity) Regulations Species, EPBC Act Policy Commonwealth Department 2001; Statement 3.21; of the Environment Commonwealth Environment Matters of Environmental Australian Energy Regulator Protection and Biodiversity Significance, Significant Impact Conservation (EPBC) Act 1999; Guidelines 1.1, EPBC Act 1999; Japanese-Australia Significant Impact Guidelines for Migratory Bird Agreement the Vulnerable Growling Grass 1974; Frog ( Litoria Raniformis ), China-Australia Migratory Nationally Threatened Species Bird Agreement 1986; and Ecological Communities, Republic of Korea-Australia EPBC Act Policy Statement Migratory Bird Agreement 3.14; 2006; Ramsar Convention on Wetlands; Important Bird & Biodiversity Areas. Victorian Victorian Ministers for: Victorian Planning & VPS Clause 52.32- Wind Planning; Environment; Environment (P & E) Act 1987; Energy Facilities in Victoria Energy and Resources. Victorian Local Government Act Victorian Departments of: - (LGA) 1989; Policy and Planning Guidelines Environment, Land, Water Victorian Flora and Fauna for development of Wind energy and Planning; Guarantee (FFG) Act 1988; facilities in Victoria, July 2003 State Development, Business Aboriginal Heritage Act 2006; (PPG-WEF); and Innovation; Electricity Industry (EI) Act Essential Service Commission; (2000) Victoria; Victorian EPA; Mineral Resources West Gippsland Catchment (Sustainable Development) Management Authority; Act 1990; Aboriginal Affairs Victoria; The Assessment and WorkSafe; VicRoads; Measurement of Sound VicPolice from Wind Turbines (NZ Victorian Civil and 6806:1998). Administrative Tribunal; Local South Gippsland Shire South Gippsland Planning Council Council; Scheme
Table 1: Some of the regulators, legislation and regulation involved BHWEF regulation
Although the wind energy industry is being promulgated by Commonwealth legislation (the Commonwealth Renewable Energy (Electricity) Act 2000 ), responsibility for defining and facilitating how the wind energy industry manifests itself ‘at ground level’ resides in State- based statutory planning arrangements.
12 In Victoria, the Planning and Environment Act 1987 is the parent legislation of Victoria’s planning scheme framework. Planning permits are issued under the P & E Act. The Minister for Planning and municipal councils are designated statutory planning authorities responsible for implementing Victoria’s planning objectives, planning out land uses, reviewing and amending planning schemes, and planning-related administration and enforcement functions 9.
In 2002, Clause 52.32 was inserted into the Victorian Planning Scheme, and underlying municipal planning schemes, to accommodate and facilitate the planning of wind farm developments. The BHWEF planning permit was issued under the old (now redundant) terms of Clause 52.32 which allowed, for example, WEF development as close as five hundred metres to homes within rural zones. The Minister for Planning was the designated planning authority at the time, responsible for issuing and enforcing the permit.
It is not a good situation for an old, unexercised permit to endure, courtesy of time extensions, while the planning and regulatory context is changing around it. Construction of the BHWEF only started in earnest at the end of 2013, well after significant changes to Clause 52.32 in 2011 10 , and some nine years after the permit was first issued. Under the new requirements of the amended 52.32, this project would have been refused planning permission and not issued a permit.
Although 52.32 changes have an important implication, yet the conditions of the BHWEF permit, as decided back in 2004, remain largely unchanged and reflect the thinking of that time about WEF development, and regulation.
The ‘time traveller’ aspect of the BHWEF Planning Permit adds for an additional level of mind-numbing complexity to a project and its regulatory arrangements already complex enough. For local communities like ours to stay abreast of this project, its planning, regulation and on-the-ground activities, requires a major commitment of our community’s time and resources over a long period.
Ours is not a theoretical interest. Pursuing permit compliance necessitates us keeping abreast of otherwise arcane matters like VPS and local planning scheme amendments. For example, the VC78 amendment to 52.32 made local councils the principal statutory authority responsible for compliance and enforcement of almost all permit condition matters. The Minister for Planning retains statutory planning and regulatory responsibility for acoustic emissions.
Regulation of the BHWEF may appear to be profligate however the appearance of many regulatory controls is not the same thing as good regulation. In the course of the 2004 Planning Panel’s investigations, the appropriateness and capacity of existing regulatory arrangements to deal with complex matters raised by the proposed BHWEF project came under close scrutiny. Even back then, it was apparent that systemic deficiencies in some of the WEF regulatory arrangements were causing major problems.
Acoustic emission regulation is the ‘stand out’ example of systemic regulatory deficiency identified at the time by the BHWEF Panel (section 6.4 below). However, systemic regulatory deficiencies were also identified in the protection of coastal landscapes (section 6.3 below), and the protection of residential amenity for future dwellings on agricultural properties (section 6.5 below).
9 Planning and Environment Act 1987 Part 2 10 Amendment VC 78- Wind Energy facility provisions – Clause 52.32 13 6.2 Regulating Bat and Avifauna Impacts
We start our comments about the 2004 Panel’s recommendations and regulatory approaches with a major problem identified by the Panel - the proponent’s substandard environmental assessments. This matter was of such significance that the Panel recommended approving the planning permit on a conditional basis, pending review and improvement of the environmental assessments. This was formalised in Recommendation 12:
This review should be carried out to the satisfaction of the Minister for Planning. The issuing of a permit should await its completion’. (p 309)
The terms of the review were detailed by the Panel in its Recommendations 10 and 11 . (Full details of these recommendations appear in Appendix A.) As examined in the TVCG Part B SubReport, the additional review work was never completed. This made it impossible to be confident about the degree and nature of the project’s environmental impacts on matters of national environmental significance.
Ministers have discretionary powers. We can only hope they exercise these powers to uphold rather than undermine the spirit and intention of legislation. In the case of the BHWEF project, then Victorian Planning Minister, Mary Delahunty, all but ignored the Panel’s findings and its detailed Recommendations. She approved the permit using an information base that the Panel had already concluded to be:
‘…a body of work that is approaching the threshold beyond which it cannot be used for effective, rationally based public decision making’ (p 170).
The Commonwealth had accredited the Victorian Environmental Effects Statement process, also conducted by the 2004 Panel, to assess the BHWEF application for the purposes of the EPBC Act 11 . This imparted an added weight both to the Panel’s recommendations urging a detailed review and to the Victorian Minister’s errant approval.
With the Panel and the Minister sending conflicting messages, it is little wonder the Commonwealth would subsequently struggle and, finally, fail to achieve a rational decision within the terms of the EPBC Act. Allowing the project to proceed and assigning it wholly inadequate conditions of approval (that are now shaping up to be dishonoured) is a testimony to an abject failure of environmental decision making processes at two levels of government. The TVCG Part B SubReport examines this failure in more detail.
6.3 Protection of Coastal landscape
The lack of adequate protection for Victoria’s coastal landscape was described succinctly by the Gippsland Coastal Board in its submission to the Panel:
‘The [Gippsland Coastal] Board is most concerned that wind farm assessment and development is proceeding across the State and across Gippsland without the benefit of a strategic assessment of coastal landscapes . Such an assessment would build on the initial work of the Victorian Coastal Council…and the National Trust. The assessment should provide sufficient analysis and detail to enable significant landscape overlays to be prepared for municipal planning schemes and would identify those high and medium value coastal landscapes where wind farms should generally not be permitted.’ (2004 Planning Panel Report p 100) (our emphasis)
At the time of BHWEF’s statutory approval, the Victorian government had not undertaken a strategic assessment of Victoria’s coastline to inform and direct the appropriate siting of wind energy facilities and to protect important coastal landscapes. It would be another seven years before any State government action was taken on this front:
11 2004 Planning Panel Report, 24 June 2004 p 3 14
‘The Panel finds there is no reasonable prospect of a strategic landscape assessment process for wind energy emerging or gaining government support, within a timeframe that could be relevant to this decision.’ (p 105) (our emphasis)
In 2011, amendments to VPS Clause 52.32 introduced set backs, coastal, regional and urban no-go areas into the Victorian Planning Scheme (VPS) to control the siting of WEFs. However, by this time six WEFs 12 totalling 243 turbines had already been approved and built into Victoria’s coastal areas while another ten WEF13 , totalling 350 turbines, had been granted statutory approval. Of these ten WEFs, seven are now in various stages of construction or have been completed, including BHWEF.
BHWEF would not have achieved statutory approval under the 2011 WEF planning controls. We note also a pre-election commitment of the current Victorian Andrews government to repeal the 2011 WEF planning controls in place to protect coastal landscapes
6.4 Regulating Acoustic Emissions
When discussing acoustic emission regulation we prefer to use the term ‘acoustic emissions’ versus the 2004 Planning Panel’s preferred term - ‘noise’. By definition, noise is audible. However, WEF acoustic emissions also include inaudible low frequency, infrasound and vibration. ‘Noise’ as used by the Panel is indicative of the limited knowledge about WEF acoustic emissions in the public arena circa 2004.
We suggest WEF manufacturers then (and now) were (and are) aware of the full range of WEF acoustic emissions but suppress public dissemination of that knowledge, instead focusing public and regulator attention on audible ‘noise’. By way of example, we cite a noise testing report commissioned by RePower to test the same turbines as those installed now at Bald Hills. 14 The test parameters were:
‘to determine the apparent sound power level as characteristic parameters of noise emission in accordance with IEC 61400-11[1].15
In short, RePower was checking the audibility of acoustic emissions from the MM 92 model emanating from the:
‘generators, gears, hydraulic pumps, fans, transformers and converter…leaving the apertures in the gondola (nacelle) and the tower directly and are as well transferred as mechanical vibrations by the machine housing. Some of these sources can cause tonality noises. The noise created by aerodynamic effects represents the second essential acoustic source. They are caused by the rotation of the rotor blades. These wideband noises depend on the blade tip speed in first place and in the second on the blade profile and the pitch angle’. 16
Not surprisingly, given the range and type of emission sources, the test results showed the turbine creating a broad spectrum of acoustic emissions including considerable infrasound and low frequency 17 . The RePower test report used technical information
12 http://www.energyandresources.vic.gov.au/energy/sustainable-energy/wind-energy/wind-projects - Cape Bridgewater (29), Cape Nelson South (22) , Codrington (14), Macarthur (140), Toora (12), Wonthaggi (6), Yambuk (20) 13 Ibid. Bald Hills (52), Cape Nelson North/Cape Sir William Grant (23), Hawkesdale (31), Mortlake South (51), Mt. Gellibrand (63), Ryan Corner (67), Salt Creek (15), Winchelsea (14), Woolsthorpe (20), Yaloak South(14) 14 Windtest Grevenbroich gmbh, 2009 Acoustic Report for a wind turbine type RePower MM92 at Chemin D’Ablis/France operation mode 2050 kw. 15 Ibid p 4. 16 Op. cit. 17 Ibid p 14 15 provided by the turbine manufacturer. The report concluded that ‘the operating sound of the WEC (wind energy converter) can be stated as inconspicuous’ 18 .
As evidenced very recently in the study by Dr. Steven Cooper 19 , commissioned by Pacific Hydro, the primary causes of discomfort for nearby Cape Bridgewater study participants were infrasound and low frequency not the ‘relatively inconspicuous’ operating ‘sound’ of the turbines. The Cooper study confirmed the same range of emitters as those appearing in the RePower test report.
The noise standard for BHWEF is still NZS 6808: 1998. The slightly updated but still deficient 2010 version does not apply to the BHWEF permit. However, neither reiteration of NZS 6808 measures low frequency and infrasound. Both are constrained to the measurement of audible sound – noise, and wholly inadequate to regulate the full spectrum of WEF acoustic emissions. Their testing methodology for audible sound is flawed and neither version addresses the pressing need to specify acoustic monitoring instrumentation. 20
It may not have been the 2004 BHWEF Planning Panel’s intention but their Report neatly documents and exposes the inadequacy of the process that had led to the Victorian planning system adopting and then promulgating the wholly inadequate NZS 6808:1998 (and its 2010 iteration):
‘…during the Portland Wind Energy Project EES and permit process, whilst third party concerns led to the calling of most of Victoria’s senior landscape professionals as witnesses, the only acoustic expert to address that Panel was provided by the proponent ’ (Planning Panel Report p 192)
‘Early wind energy proponents advocated use of …NZS 6808:1998 . This was accepted as a useful standard, capable of protecting appropriate levels of acoustic amenity by the Victorian Civil and Administrative Tribunal in its Toora decision and then by Portland Panel. It subsequently became a reference document in Victorian Planning schemes, having been called up in PPG-WEF.’ (Op. cit.) (our emphasis)
Lacking any in-house technical assessment capability, the Victorian government accepted NZS 6808: 1998 which it had been ‘hand-balled’ by the equally non technical VCAT before it passed, unchallenged, through the Portland Planning Panel. For its part, VCAT had accepted the nomination of this ‘useful standard’ by the wind energy industry during the Toora WEF planning approval process.
Toora WEF commenced operation in 2002. By 2004, the BHWEF Planning Panel was hearing disturbing evidence that seriously questioned the ‘usefulness’ of NZS 6808:1998 for residents living nearby and the technically unsound route of its adoption.
Toora WEF was nuisancing nearby residents 21 and evidently non compliant 22 . The same acoustic consultant who had authoritatively assured VCAT the Toora WEF design would achieve compliance was now, equally authoritatively, assuring the 2004 Planning Panel of
18 Ibid p 8 19 The Acoustic Group – The Results of an Acoustic Testing Program Cape Bridgewater Wind Farm 44.5100.R7:MSC , 26 th November, 2014 commissioned by Energy Pacific, Melbourne 20 See Huson, L. Submission to the Senate Environment and Communications Legislation Committee – Renewable Energy (Electricity) Amendment (Excessive Noise from Wind Farms) Bill 2012 21 2004 Bald Hills Wind Farm Project EES, EES Supplement, and called in Permits Panel Report , 24 June, 2004 p 196 22 Following the 2004 Panel, acoustic engineer Les Huson was commissioned by Toora Wind Farm to assess Toora and the efficacy of NZS 6808: 1998. He found the Standard to have ‘multiple sources of error that were implicit/allowed in the NZS 6808: 1998’. See Huson, L. op cit. 16 the good compliance attributes of the BHWEF design 23 . South Gippsland Shire Council had failed to monitor Toora WEF and enforce acoustic emission compliance 24 . The EPA had refused a request by Council to undertake acoustic testing because it ‘wasn’t their responsibility’. 25
Deficiencies clearly evident in the Toora situation26 led the Panel to form the view that:
‘…[we] should seek to learn such lessons as can at this stage be learned from previous cases, to ensure than an appropriate assessment of likely acoustic impact takes place at Bald Hills and that, if the project is approved, an appropriate framework of acoustic regulation is put into place. In circumstances where there is doubt as to these lessons, some level of caution in regulation is also warranted .’ (Planning Panel Report, p 193) (our emphasis)
The caveat was that ‘such lessons’ did not include ‘reviewing the applicability and effectiveness of the NZ standard’ or ‘ sitting in judgement over previous planning decisions, such as the Toora case’. (op. cit.)
The Panel adopted a conservative approach by trying to augment rather than reform the existing regulatory arrangements and, for the BHWEF project, better define some of the regulatory parameters. Recommendations 15 and 16 added a defined night compliance period to better protect undisturbed sleep and a 5dBA penalty in the event of tonal variations and cyclic beats (aka special audible characteristics or SACS), respectively.
In response to being presented with complex and conflicting technical information about the usefulness of NZS 6808: 1998, the Panel reflected upon a better way to arrive at regulatory arrangements for WEFs and their acoustic emissions:
‘…the Panel also has to ask whether the approach taken here represents a long term solution. On balance, whilst the Panel considers that it will render a precautionary and reasonable result in this case, it would be better for the sake of future consistency if such issues were not dealt with case by case, condition by condition, but were the subject of investigations at State government level, with the publication of a formal protocol to augment the operations of NZS6808 in Victoria.’ (Panel Report p 208) (our emphasis)
It formulated the following recommendations accordingly:
‘Recommendation 19 : In the medium term, consideration should be given to the establishment of a role for the EPA in monitoring and enforcing acoustic conditions.
‘Recommendation 20: In the medium term, consideration should be given to the use of a SEPP or other relevant Victorian standard to define the specific application of NZS 6808 and or the forthcoming Australian standard to wind energy facilities.’ (p 210) Ten years later, the Victorian government has yet to act on Recommendation 19 and has only partly enacted Recommendation 20.
Ignoring the Panel’s sage advice, it has not bothered to resource itself internally with specialist technical capacity and expertise needed to support its regulatory responsibilities. It remains totally reliant on a revolving door of contracted private consultants with a client base that also includes wind energy companies. It hasn’t even bothered to equip itself by,
23 2004 Panel Report p 195 24 Ibid p 205 25 Ibid. p 195 26 The total regulatory failure that occurred at Toora reached its nadir with the subsequent demolition of emission affected homes, and residents relocating away from the area following confidential settlement with the WEF developer. 17 for example, engaging an in house acoustic engineer of suitable experience to advise its statutory planners on technical matters arising from privately provided acoustic engineer reports.
From time to time, senior departmental officials, tasked with advising the statutory regulator about acoustic emissions, i.e. the Minister for Planning, ‘part the curtains’ giving a glimpse backstage:
‘The issue of who will do the testing will be addressed should the Minister require further testing to be done. At the very least it will be overseen by the Department. We do not have the expertise in house to undertake the testing.’ 27 (our emphasis)
Lacking the necessary in house expertise, such officers are not in a position to advise on ‘further testing’ and/or the terms upon which it is done, nor interpret or advise the Minister about complex technical acoustic matters arising from consultants’ reports. In actual fact, all they are ‘overseeing’ is the continuation of systemic regulatory dysfunction and failure.
Before moving on to discuss some implications of this neglect for other BHWEF regulatory matters we report, briefly, on the fate of the Panel’s Recommendation 20 . As reported earlier, in 2011 the VPS saw amendment VC78. The amendment replaced the 1998 version with NZS 6808: 2010 bringing WEF acoustic emission limits in line with other noise limits used in Victoria (SEPP-1).
Arising from this, in 2012 the EPA was finally tasked with drafting the ‘ Application of New Zealand Standard 6808 for Wind Farm Noise – An EPA Victoria guideline’ . We understand the draft document was circulated in 2013 for comment and review. It received an adverse reaction amongst the acoustic engineering community for failing to address and resolve the shortcomings of NZS 6808, as described elsewhere.
Rather than being re-drafted, circulated, finalized and endorsed, the document is apparently languishing unfinished on (or perhaps under?) a desk somewhere inside EPA Victoria. Meanwhile, we understand, WEF planning permits issued since 2012 require the use of the unfinished, un-endorsed, unavailable Guideline. The document is neither available nor referred to on the EPA Victoria website. When preparing this submission, we sought advice from EPA Victoria. They are awaiting advice and direction from the Victorian Department of Planning.
We have sighted the ephemeral document. For no other reason, this proved useful because it refers to Recommendation 20’s other aspiration about the ‘forthcoming Australian standard’ : ‘AS 4959:2010 was prepared to guide measurement, prediction and assessment of noise from wind turbines in Australia. Although a useful background document, AS 4959:2010 has no status in the assessment of wind farm noise in Victoria.’ 28 (our emphasis)
How could WEF acoustic emission regulatory arrangements and their oversight by successive Victorian governments be described as anything other than woefully amateur, incompetent and willfully neglectful?
Planning Panels seem forever condemned to the opposite approach of that recommended by the 2004 BHWEF Panel, always considering WEF permit applications on a case by case, condition by condition basis. The 2004 Planning Panel understood and commented that:
27 Email from Mr. Paul Jarman, Deputy Director Regional and Priority Projects, Planning Statutory Services, 2.05pm, 2 nd January, 2014 to a South Gippsland resident 28 EPA Victoria - ‘Application of New Zealand Standard 6808 for Wind Farm Noise – An EPA Victoria guideline’ p 6 18 ‘if the Shire and indeed the State is to maintain its core value of fairness in the administration of its planning schemes and public confidence in approvals process for major developments, potential noise complainants in good faith must be given the assurance that somebody is looking after their reasonable interests.’ (p 205)
As we would come to experience, even responsive Panels receptive to the importance of a ‘cautionary approach’ can be tripped up by the systemic problems dogging Victoria’s regulatory arrangements for WEF acoustic emissions.
On that note, we turn now to commenting on a related area of systemic regulatory deficiency as identified by the Panel – protecting the residential amenity of future dwellings at pre WEF amenity standards.
6.5 Regulating residential amenity of future dwellings at pre WEF amenity Standards
Victoria’s planning framework entitles agricultural tenements greater than 40 hectares to a dwelling. This entitlement came into being well before the existence of the wind energy industry, reflecting and accommodating (literally) the practice of farming families. When considering the impact of BHWEF on residential amenity standards, the Panel found that future house sites arising from this entitlement should also enjoy pre-WEF residential amenity standards.
In the course of concluding this, the Panel identified that (the 2002 version of) VPS Clause 52.32 and the related (2003 version of) WEF planning guidelines had overlooked and omitted the entitlement of future agricultural houses sites and their residential amenity. 29 While remedying this omission for the purposes of the BHWEF application, the Panel also identified and disqualified those properties and future housing developments without an entitlement. These exclusions saw the Panel formulate Recommendations 26, 27 and 28 (see Appendix A).
The Panel turned to the earlier Portland WEF Panel’s deliberations for help designing the procedure to deliver pre WEF residential amenity standards to appropriately entitled tenement owners:
As a matter of policy a wind farm developer should be expected to identify all owners of lots and tenements that would be likely to be affected by their safeguarding requirements. They should discuss future land use intentions with each of these. Where a lot or tenement lacks a dwelling and the owner indicates a future intention to construct one, the Panel considers that the wind farm design should safeguard a reasonable building envelope for one dwelling together with an area of secluded private open space within the lot or tenement. This envelope should be identified on a plan and then wind farm plant should be designed and located to avoid exposing it to undue noise or visual amenity impacts. 30 (our emphasis)
It also drew on other relevant planning matters - ‘the principle should still apply that the ‘onus is on the agent of change’’ (p 279). In this matter, the agent of change is BHWEF.
These considerations culminated in the Panel’s Recommendation 25:
‘The proponent should enter discussions with the McDougall family and any similarly located owners of rural tenements over 40 ha close to the proposed wind farm which currently lack a dwelling. The purpose of these discussions should be to advise of areas within their land where a dwelling site can be selected to ensure that appropriate amenity standards, equivalent to those of existing dwellings, will apply’ (p 280).
29 2004 Planning Panel Report p 276 30 Ibid. p 275 19
Planning Permit Condition 28 combines the Panel’s intention to protect pre-WEF residential amenity standards with the delivery procedure thus:
‘Prior to the preparation of the development plans, a plan shall be prepared to the satisfaction of the Minister for Planning showing all farm tenements neighbouring the development site (including those separated from the site by road), and the location of existing houses on each separate tenement as at 24 June 2004 (‘the tenement plan’.) In the event that there are any tenements over 40 ha in area without an existing house, a potential house site for the tenement should be identified after consultation with the tenement owner. The Minister for Planning may indicate satisfaction with an otherwise reasonable plan that does not address the issues raised by all consultees’. 31
Despite the seeming appearance of clarity, the prescription was based on a set of assumptions by the Panel that:
1. the proponent would accept its obligations as the ‘agent of change’, use ‘its good offices’ to identify the limited number of entitled tenement owners and hold discussions with them providing advice on the tenement owner’s selection of a future house site with the desired amenity standards 32 ;
2. the proponent would accept the location of the tenement owner’s house site to be the determinant of wind farm design and turbine location, not the other way around 33 ;
3. WEF noise related amenity matters would be amply dealt with using NZS 6808: 1998 and the Panel’s augmented regulatory measures (5dBA penalty and sleep protection period). The noise impact information provided by proponent to tenement owners would be accurate and truthful;
4. No tenement would be entirely washed over by noise and shadow flicker and therefore no provision was necessary to deal with this possibility.34
Unless this was to turn into an example of regulation by wishful thinking, some practical implementation measures were required to support the protection of the tenement owner’s entitlement. Implementation measures may have taken the form of a formal mediation-type process. This could have been combined with some rules defining fair and acceptable negotiation terms, included clear definitions around the termination of negotiations by either or both parties and the implications of such a termination for each of the parties.
In 2012, when ‘discussions’ finally occurred between the developer and tenement owners, eight years after the inception of Condition 28, neither the Minister for Planning nor his Department had taken the steps necessary to ensure the discussions were conducted in an orderly fashion and would deliver tenement owners their entitlement. At no time, were tenement owners forewarned how poorly represented their interests were in this process.
Presaging what lay ahead, the final sentence of Condition 28 anticipated that tenement owners (‘consultees’) and not the developer may be unreasonable. If the developer deemed a tenement owner to be unreasonable, the developer was released from their obligation to achieve agreement, and allowed to design and submit their version of a ‘reasonable’ farm tenement plan for the Minister’s approval.
31 Planning Permit No. TRA /03/002 Bald Hills Wind Energy Facility p 12 32 2004 Planning Panel Report p 277 33 Op. cit. 34 Op. cit. 20 Case Study 1: Spot the ‘unreasonable’ party
‘Prior to the preparation of the development plans , a plan shall be prepared to the satisfaction of the Minister for Planning showing all farm tenements ‘ Permit Condition 28
On 14 th March and on 10 th April, 2012 a tenement owner wrote to the developer advising he and his family were awaiting contact from the developer about their farm tenement plan. Meanwhile, they had identified a suitable house site they wanted to build on. On 18 th April BHWEF wrote back saying they would be in contact soon. On 4 th May BHWEF submitted its final WEF design (development) plans to the Department for approval. On 23 rd May BHWEF wrote to the tenement owner, seeking consultation about the farm tenement plan. On 19 th June the tenement owner and developer met for an on site inspection. The tenement owner showed the developer the house site he had first nominated in March-April. On 20th June , the developer wrote to the tenement owner telling him his family’s preferred house site was unsuitable, that it would be completely washed over with WEF audible noise well above 40dBA, and assigned the tenement owner’s family a house site in a wetland-swamp area sitting on the 40dBA acoustic line. The 5dbA penalty for special audible characteristics was ignored. On 26 th June BHWEF submitted a farm tenement plan for the property to the Department for approval, without advising the tenement owner. On 2 nd July another TVCG member spoke with BHWEF management and was told farm tenement plans for three properties, (including our case study family) had been finalised. Knowing this was untrue, the TVGC member contacted the Department of Planning to query and contest BHWEF’s stance. On 5 th July the tenement owner wrote a polite letter of response refusing the BHWEF nominated house site, and requesting the relocation of five turbines sites to accommodate their family’s preferred house site. BHWEF ignored their request. th On 6 July BHWEF resubmitted its WEF design (development) plans to the Department of Planning correcting some graphics-related errors in the document.
On 26th June 2012, BHWEF submitted the final farm tenements plans with the Department for Planning, almost two months after submitting the WEF development plans, contrary to Condition 28 of the permit.
The process of ‘discussing’ and finalizing the farm tenement plans was about to turn into a ‘perfect storm’ of regulatory failure that would cost the families of Bald Hills tenement owners their entitlement and, setting a legal precedent, keep on costing other families into the future.
In concluding this section we ask – how did the reality of farm tenement planning stack up against the 2004 Planning Panel’s assumptions?
Firstly, even ‘though the number of farm tenements was ‘limited’ the developer still managed to get the number wrong. One tenement owner found his property omitted having been wrongly defined by the Department of Planning and the developer. When the owner disputed the omission with Department, developer and Minister, he was deemed to be ‘unreasonable’ for his trouble. It has taken another two and a half years of effort by him for BHWEF finally to admit their mistake.
Despite the Planning Panel citing the McDougall family in its Recommendation 25 as an exemplar of the limited number of tenement owners with whom the developer ‘ should enter discussions with…to ensure appropriate amenity standards…will apply ’ no such discussions ever occurred. To our knowledge, four other tenement owners were treated similarly.
We know of only one tenement owner who enjoyed multiple discussions with the developer leading to an agreement that turbine sites would be located away from the 21 owner’s preferred house site and that three other turbines would be run in ‘noise optimization’ mode. Even though this family was treated more politely, it didn’t guarantee preservation of pre-WEF residential amenity standards, even for them.
The developer’s audible noise modeling for all the farm tenements was undertaken and applied on the basis of NZS 6808: 1998. The 5dBA penalty was omitted. 6808’s limitations saw low frequency and infrasound omitted. Acoustic modeling for all relevant properties was, at best, questionable.
As described in Case Study 1, at least one property was known to have been rendered ‘sterile’ (to use the Panel’s terminology) by WEF audible noise. While this was understood by the developer and DPCD, the tenement owner was never told. No admission or reparations have since been made.
The developer had some powerful motivations to play unfair. It had already finalized and submitted its WEF design (development plans), including turbine GPS locations, to the Department for approval and endorsement by the Minister. The developer could and did opt out of its obligations to tenement owners, courtesy of Condition 28’s poor wording. Lastly, through no fault of the tenement owners, time was at a premium. If construction works were not commenced before 19 th August 2012 the permit would expire. The developer would have to apply for a new permit within the changed planning context of VPS Clause 52.32 that disallowed WEF development west of Wilson’s Promontory and imposed a five kilometer coastal setback.
The perfect storm of statutory planning and regulatory failures was about to blow into VCAT.
22 7. Sorting out permit breaches and regulatory failures the VCAT way
Compliance with permit conditions is difficult to monitor, difficult to enforce and relies on the operational programming of turbine operation and the good will and cooperation of the operator. 35 (Departmental advice to the Minister for Planning, 10 th July 2012)
By the time the BHWEF hearing came before VCAT on 25 and 26 th July 2012, the Department of Planning had grounds to seek an enforcement order. The developer had breached Condition 28 by submitting final WEF design (development) plans before preparing and finalizing the farm tenement plans. Secondly, the developer had omitted the 5dBA penalty that applies for the presence of WEF special audible characteristics (SACs) and their impact on future house sites, existing nearby homes and their acoustic amenity standards. Thirdly, in documentation submitted to the Minister in April, the developer was already walking away from the only agreement it had entered into with one tenement property owner:
The proponent proposes to run 3 turbines (40, 46, 47) in a noise optimized mode to limit noise impacts on a proposed building tenement…this undertaking…is not contained within the documents to be approved by the Minister that would operationally bind the company to operate in power reduced mode. 36
Had the Department of Planning initiated enforcement orders in early May 2012, the developer’s delinquency on all these matters would have been made obvious. But that was not to happen.
Instead, after two more months of behind-the-scenes wrangling of a statutory planning nature between Departmental officials and the developer 37 finally, on 6 th July, the Department wrote to the developer advising that eleven turbines ‘ are not able to achieve operational compliance with the relevant noise standard based on the information submitted’ 38 for three houses and four tenement plans (See also Appendix B 2).
Departmental officers had repeatedly misread the nature and seriousness of problems with this developer believing these statutory planning matters were resolvable by meetings, emails, phone calls and letters rather than being enforcement matters requiring a VCAT- issued enforcement order.
The developer was using the permit-prescribed design process to ‘nip and tuck’ permit conditions, dissolve obligations, misinterpret permit conditions and, in so doing, strip away the entitlements of tenement owners and nearby residents. They were taking full advantage of a deficient acoustic emission standard and a systemically deficient acoustic regulatory system that ignored SACs, the 5dBA penalty and WEF infrasound emissions. The developer was helped along by the time pressures it had itself created from leaving the preparation of development plans until the last minute.
It is a truth less than universally acknowledged that…if a developer designs a WEF specifying the use of equipment, plant and layout known to produce acoustic emissions that will annoy the neighbours, don’t be surprised that when the WEF starts up, its acoustic emissions annoy the neighbours.
35 Ministerial Briefing Note CMIN039564 from DPCD to the Minister for Planning, 10 th July, 2012 p 3 36 Ibid. p 2 37 See the VCAT Order, VCAT Reference No. P2002/2012, 25-26 th July 2012, and Ministerial Briefing Note CMIN039564 from DPCD to the Minister for Planning, 10 th July, 2012 38 Letter from David Hodge, Executive Director, State Planning and Urban Development, Department of Planning and Community Development to BHWEF, 6th July 2012 23 Alarmingly, the Departmental statutory planner responsible for BHWEF was not in receipt of information he needed to know to form this view about the developer’s actions:
The department did not raise noise as an issue (with BHWEF) in April as the degree of the potential noise when related to knowledge gained from the western district experience of wind farms was not known at the Gippsland regional office’ 39
Melbourne based statutory planners investigating non compliance and permit breaches at the Waubra WEF, operational since 2009, hadn’t told him the flawed features responsible for the problems at Waubra were the same ones the Bald Hills developer was busily designing into their WEF.
By the time he found out, it was too late. BHWEF had already lodged an application with VCAT seeking an urgent hearing for an order to compel the Minister to endorse their development plans.
On 9 th July, Departmental officers met with the developer who presented them with a legal letter. We don’t know its wording but its content was subsequently described in a departmental briefing to the Minister:
This view as presented by the proponent effectively seeks to displace the Minister’s duty of care to ensure that the wind farm layout will be noise compliant with the duty expressly described under planning permit conditions 19, 22 & 23 (noise) to take enforcement action if breaches have been demonstrated to have occurred. 40
Presumably, the developer also told them that, unless the Minister endorsed the development plans, ‘they’d see them in Court’.
This strategic legal action by the developer outflanked the Department of Planning and totally repositioned the relationship between developer and regulator. The situation was no longer about the regulator catching an errant developer actively breaching permit conditions. It was suddenly transformed into a battle between a developer struggling to protect their project from a devious regulator who was deliberately ‘winding down the clock’ until the permit expired.
Systemic deficiencies on the acoustic emission front reared their ugly head, yet again, compounding the weakness of the regulator’s position and undermining the legitimacy of concerns raised in the 6 th July Hodge letter to the developer:
A peer review by competent acoustic experts that provides expert support for a decision to refuse is regarded as a prudent measure, particularly if some form of legal redress for loss is initiated by the proponent. The doubts raised by the department regarding potential noise issues likely to apply to the wind farm have been raised based entirely on past experience from wind farms across the State and the marginal nature of the sound power gradients provided by the proponent which leave little margin for error for noise exceedances for a number of existing and proposed house sites near to the wind farm. 41 (our emphasis)
Little wonder the three options for taking action presented to the Minister on 10 th July by the Department’s internal legal counsel might best be described as - bleak (design modifications ordered by Minister would be overturned at VCAT), bleaker (if Minister doesn’t sign off design, Mitsui will sue for substantial losses) or, total capitulation (Minister approves the current design).
The other option was no action by the regulator. It could allow itself, instead, to be carried into VCAT on the back of the developer’s legal application, bracing in anticipation of ‘taking
39 Ministerial Briefing Note CMIN039564 from DPCD to the Minister for Planning, 10 th July, 2012 p1 40 Ibid p 3 41 Ibid p 5 24 a kicking’ in Court. Defending its position in VCAT would have the advantage of giving the appearance of taking a stance when, in fact, the regulator’s failure to act in May had already sealed the fate of the matter. In politics, as in court, the appearance of a thing counts and taking the ‘no action option’ would confer ‘deniability’ to the Minister who could say afterwards: ‘I didn’t want to sign off but VCAT made me do it. What else could I do?’ 42
At the hearing, the expected ‘kicking’ was duly administered by the VCAT Panel 43 . It wasn’t just the Minister and the Department who got punished.
In a swingeing re-interpretation, VCAT agreed fulsomely with the developer, proceeding to wipe out entitlements, re-engineer permit conditions, misinterpret the 2004 Planning Panel’s intention, doing all and even more than the developer and its legal counsel could have possibly hoped for. Like a valkyrie on a mission, Deputy President Gibson adopted the rightness of the developer’s cause:
Due to the imminent expiry of the permit on 19 August 2012 it is vitally important for Bald Hills that the development be approved in time for it to commence development. The imperative faced by Bald Hills in commencing development before the permit expires is that since the permit was granted, planning controls for wind energy facilities have changed…the wind energy facility as proposed under the permit could not now be approved and the permit cannot be extended…we consider that the Minister, as a responsible authority, has a duty to be fair . We do not consider it would be fair or reasonable in the circumstances of this case for the Minister to delay making a decision…’ 44 (our emphasis)
Then she felled everything that stood in its way. Regarding condition 28 and farm tenement plans:
…the Minister submitted that the failure on the part of the applicant to submit the tenement plans in advance of the development plans compromised the assessment of the entirety of the material…we do not accept this submission…we do not consider it was ever the intention of condition 28 to require the removal of any approved turbines or their relocation to a point that was not otherwise generally in accordance with the requirement of condition 1a (development plans). We consider that the applicant has complied with the intent of conditions 28 and 29 in the preparation of the tenement plans…both have been prepared and assessed as satisfying their respective conditions.’ 45 (our emphasis)
No mention here that Planning Panels for both Portland and Bald Hills considered and agreed:
‘this envelope should be identified on a plan and then wind farm plant should be designed and located to avoid exposing it to undue noise or visual amenity impacts. 46 (our emphasis)
About audible noise compliance:
‘having been through a thorough permit and EES assessment process and a subsequent second assessment process to amend the development, we do not accept that the discretion to be satisfied about the development plans confers a discretion to re-ventilate matters already dealt with under those processes. A permit should only be granted if it is considered such matters as noise can be dealt…. considering and endorsing development plans under the permit is not an opportunity to have ‘second thoughts’. 47 (our emphasis)
42 A Bald Hills delegation met with Matthew Guy on 27 th November 2012 where he used this as his defence. 43 VCAT Deputy President, Helen Gibson, and VCAT member, Ian Potts. 44 VCAT Order pp 4-5 45 Ibid. pp 17-18 46 Planning Panel report p 275 47 VCAT Order p 21 25
Yet, second thoughts were exactly what the 2004 Planning Panel had in mind when it urged ‘regulatory caution’, recommended that the State government establish an independent, technically expert internal authority and warned repeatedly that:
‘The absence of an independent entity charged with acoustic condition compliance monitoring adds considerably to difficulties in assessing operational performance in the face of noise complaints.’48 (our emphasis)
If Deputy President Gibson was so confident in the processes and outcomes of the 2004 Panel, one wonders why she so readily accepted the submissions of two private acoustic consultants appearing for the Minister and developer, respectively. (Gustaf Reutersward, SLR Consulting, for the Minister, and Christophe Delaire, MDA Consulting for the developer). Why didn’t she question the evident failure of the Department to establish the necessary internal technical expertise identified and recommended by the Panel eight years before?
There is no reference in the VCAT Order to the regulator raising the noise compliance problems it had been investigating at Waubra WEF. It may have been true that ‘Mr. Reutersward’s overall conclusion is that compliance with noise criteria can be achieved under the proposed development plans’ 49 . But Mr. Reutersward also questioned why the developer’s acoustic report didn’t refer to or offer strategies to deal with special audible characteristics (SACs) 50 .
Contrary to the Deputy President’s view about his expert opinion, Mr. Reutersward’s ‘ overall conclusion’ is conditional on five amendments to the developer’s noise prediction report, plus the addition of a whole section to address SACs and their contingency management. 51 These changes don’t appear in Deputy President Gibson’s Order.
Mr. Reutersward was experienced with SACs having also been commissioned by the Department of Planning to investigate Waubra WEF. He had already identified SACs impacting local residences and had helped inform Departmental advice to the Minister to shut down some turbines.52 Perhaps it wasn’t raised by legal counsel for the Minister because, at the time of the Bald Hills VCAT hearing, twelve months after identifying actions to bring Waubra WEF into permitted noise compliance requirements, no enforcement had yet occurred.
One of the reports the Department asked Mr. Reutersward to consider when formulating his expert advice was the Repower MM 92 noise testing report we discussed in Section 6.4. By way of reminder, page 14 of the report and one of its appendices showed the Repower MM92 turbine producing considerable infrasound. He doesn’t mention this in his evidence.
Mr. Reutersward might argue that industry practice based on NZS 6808 omits infrasound and, therefore, referring to its presence isn’t a requirement. Yet, it is still misleading to refer to the developer’s acoustic engineering methodology as ‘industry best practice’. It is standard practice to omit referring to the presence of WEF infrasound because the official regulatory standard omits it.
But that doesn’t make 6808, its continued endorsement by the regulator and its continued use by acoustic engineers - ‘industry best practice’: far from it.
48 2004 Planning Panel Report p 305 49 VCAT Order p 20 50 SLR Bald Hills Wind Farm – VCAT P2002/2012, Acoustic Review, Expert Witness Statement, 24 th July 2012 p 7 51 Ibid p 9 52 DPCD Briefing Memorandum BMIN11632 to Minister Matthew Guy, Waubra Wind Farm Permit Compliance, 22 nd August, 2011 26
In this context the Deputy President’s finding that:
‘If for some reason the noise conditions are not complied with, there are processes under the permit to deal with this, with the ultimate sanction being an enforcement order. This is a risk the applicant must manage. It should not preclude the approval of the development plans…’53 (our emphasis)
…doesn’t present much of risk at all to the developer. However, it does present a very real risk of ongoing disturbance to local residents and the probability of them incurring large legal bills trying to ‘manage’ the problem.
Eight years before, we recall again the Planning Panel contemplating a better way of dealing with the difficulties of complex acoustic emission matters:
‘It would be better for the sake of future consistency if such issues were not dealt with case by case, condition by condition’.
We wonder when and under what circumstances VCAT might develop the same insight. Deputy President Gibson may have felt she was acting responsibly, upholding Victorian planning law by respecting the status of a live permit and the permit holder’s entitlement to proceed unimpeded by an inept regulator. We beg to differ, pointing to the irresponsibility of bringing down a determination that encourages a developer to take full advantage of systemic regulatory deficiencies. The Order confers the added dis-benefit of encouraging WEF industry tardiness regarding its permit documentation in the knowledge that a ‘ticking clock’ can be played strategically to its advantage. VCAT’s Order did not instill confidence in us that we could ever get a fair and just hearing.
Like the Planning Panel, it is not VCAT’s responsibility to direct the Victorian government to improve WEF regulatory arrangements. However, it is VCAT’s responsibility to be alert to matters brought before it that are being generated by systemic regulatory deficiencies, and to consider how to discourage their exploitation by canny developers.
Ultimately, it remains the responsibility of the Victorian government to get its WEF regulatory house in order. Inevitably, when it is compelled to do so, VCAT will then be judged on its legacy of WEF determinations: whether these have helped to bring about much needed reforms and, in so doing, whether it has instilled public confidence in its authority, or whether it has prolonged a failed and failing system.
53 VCAT Order, p 21 27 8. Monitoring and compliance governance of BHWEF during construction
Bald Hills, Tarwin Lower is a remote coastal corner, a long way both from Melbourne and the Gippsland regional offices of many Victorian government departments, housed in Traralgon, on the northern side of the Strzelecki ranges. The head office of South Gippsland Shire Council (SGSC) is much closer, in Leongatha, but even this is a good thirty minute drive away.
A $400million construction project is middling large as energy infrastructure projects go and truly enormous relative to the construction activity that might otherwise be found in the Bald Hills neighbourhood – a new shearing shed here, or a new holiday house there.
In 2011, VC78 conferred compliance and enforcement responsibility for all WEF permit matters, other than acoustic emissions, to local Councils. Councils were not allocated additional funding to assist with these extra responsibilities. In December, 2013 TVCG formally petitioned SGSC asking it to be diligent and proactive in its role as lead regulatory agency for the BHWEF planning permit. We were not confident that Council had dedicated any additional resources to support this role.
Over the 2013 Christmas holiday period, TVCG members visited the Melbourne based Department of Planning to peruse the planning permit documentation, with particular attention to the construction and environment management plan, the transport management plan (TMP) and the cultural heritage management plan for the BHWEF permit.
Construction at the BHWEF started in earnest during November-December 2013 under the management of lead contractor, Senvion, and lead construction company, the Tasmanian based, Hazell Brothers. In the background a ‘ticking clock’ was set to go off in August 2015, the construction completion date as required by the planning permit.
There was a significant increase in construction related traffic on Buffalo-Waratah (B-W) Road, an unsealed road used to access the main compound. Many TVCG members live off this road, using it daily to move around stock, feed and agricultural equipment and to access Tarwin Lower village or Leongatha and Inverloch townships, further afield. B-W Road is also a long established school bus route.
The TMP recommending widening and sealing B-W Road to carry the scheduled high volume of heavy construction traffic 54 and to contain dust problems. Small sections were widened but the major upgrade was never done and, as late as May-June 2014, Senvion still hadn’t told VicRoads. Nor had Senvion yet signed off its road inspection and maintenance agreement with VicRoads, as required by the TMP.
During the summer months of construction, B-W Road became dangerous. Lots of dust from heavy construction trucks on the unsealed road reduced visibility. It became routine for construction traffic to run local traffic off the road causing numerous near misses. One such incident, early in the school year, involved the local school bus. This led to Senvion implementing one TMP condition, restricting heavy vehicle traffic during school bus hours.
Although local residents and TVCG members didn’t know it yet, this was the standard operating procedure of Senvion in response to permit compliance responsibilities. Permit conditions were routinely breached, on any and every matter. If caught, a minimal response
54 In 2004, BHWEF estimated northern sector traffic movement to average 21 two way round trips per day for heavy trucks and 30 two way round trips for cars. 2004 Planning Panel Report p 233 28 followed, just enough to meet compliance requirements on the particular matter of the detected breach, but no more.
This meant the school bus near-miss didn’t result in an overall improvement in the on-road behaviour of contracted heavy truck drivers. Senvion’s limited response ensured no further incidents involving the school bus. However, throughout 2014 in summer and deepest winter when the road was falling to pieces, local road users, including TVCG members and their families, kept being forced off the road by construction traffic pushing hard to achieve the maximum number of round trips per day.
With the ‘catch me if you can’ stance of Senvion toward its responsibilities, the only way to achieve a semblance of permit compliance was if SGSC had established a regular compliance and enforcement presence for the project. We believe the project’s size and the complexity of its development plans required SGSC to assign a full time compliance officer to monitor the project, document observed breaches, liaise with local residents and initiate necessary enforcement action. This never happened. Over the full twelve-fourteen months of construction, we are aware of SGSC senior officers visiting the site four times.
TVCG members started asking that they do so in January, 2014. By September 2014 TVCG members, local residents and their lawyers had lodged approximately ten formal written complaints to SGSC and attended four or more meetings, including two with the entire elected Council, to report alleged breaches and voice concern about SGSC inaction. Our lawyers were also lodging formal letters of complaint on our behalf to the Minister for Planning. In addition to problems with ongoing traffic management, road safety, state-of- the-roads, and unauthorized extension of working hours, we reported:
• Illegal quarrying activities; • Breaching of cultural heritage management plans; • Unauthorised relocation of turbine sites, roads, set down areas and underground cabling; • Unauthorised relocation of the substation.
We didn’t know that local farmers and residents near the Gullen WEF in Crookwell, New South Wales had been having a similar experience. However, the eventual response of the NSW regulator compared to the Victorian regulator couldn’t have been any more different.
8.1 Cultural heritage management plans (CHMPS)
Permit Condition 10(e) requires:
‘a qualified archaeologist onsite during the initial excavation works to identify an archaeological artefacts and to initiate their reporting and protection; protocols for construction contractors whose work might impact culturally significant sites , protocols for consulting with relevant aboriginal communities; induction and training courses for excavation workers and; protocols for protecting and reporting the discovery of human remains .’ (p 7)
Concerned that illegal quarrying may be disturbing sites of cultural heritage importance, in February 2014 we contacted Aboriginal Affairs Victoria (AAV) asking about the lead contractor’s compliance with CHMP related permit conditions, and querying AAV’s monitoring role. They advised that SGSC was the lead regulator and AAV hadn’t been alerted to any problems.
Although large scale excavation activities were underway for the substation, turbine foundations and internal roads, Senvion did not have a full time archaeologist on site. SGSC followed up our query by telephoning and asking the lead contractor. Senvion advised that an archaeologist was dropping in once per month. We then learned it hadn’t conducted any 29 CHMP related induction or training of excavation workers. Querying this with SGSC, a few sessions were held a month or so later, almost five months after the start of excavation works.
At the same time, in March 2014 we heard of some construction workers boasting of ‘digging up aboriginal graves’. We raised this matter with the appropriate regulatory authorities, including SGSC, to be greeted with disbelief, even ridicule. Some months later, VicPolice did a preliminary investigation and were met with denials. The lead contractor didn’t tell VicPolice at the time that they had changed the WEF design resulting in significant alterations to the location of excavation works for almost the entire site. Along with the alleged illegal quarrying, what did the alterations mean for cultural heritage protection?
To this day, we don’t understand why construction personnel were telling their mates about digging up graves but not reporting this to site management as per Condition 10 (e) protocols? If these protocols were in place and working, why hadn’t site management initiated their own investigation of accounts circulating amongst their workforce and contacted VicPolice themselves?
8.2 Unauthorised relocation of BHWEF turbines, services and substation
From January to April 2014, at the height of excavation works, local residents noticed onsite quarrying activities. In addition to CHMPs, our members were also concerned that erosion and sediment controls may have been ignored. Then, they started noticing turbine sites in different places from those cited in the authorised development plans.
In July-August 2014 we obtained a copy of new BHWEF civil design plans. Dated December, 2013 these departed significantly from the authorized BHWEF development plans. One turbine (T17) had been relocated 248 metres away from its approved site, another turbine (T33) by 137 metres. The locations of internal road and underground cabling had been changed significantly. All these changes were unauthorized. (See submission page 3 (front cover) NB Southern sector not shown)
Permit Condition 3 states:
The use and development as shown on the endorsed development plans or other plans to the satisfaction of the Minister must not be altered or modified in any way without the written consent of the Minister for Planning save that micro siting of wind generators will be regarded as generally in accordance with the endorsed plans if the Minister for Planning is satisfied that it will not give rise to a material change to assessed landscape, visual, shadow or noise impacts (p 2).
In August-September 2014 we complained formally to SGSC and the Department of Planning. Neither SGSC nor the Department of Planning admitted any knowledge of the civil design plans. They raised the matter with Senvion/BHWEF. As a direct result of our complaints 55 , the developer made a secondary consent application to the Minister for Planning. The developer sought retrospective permission to ‘micro-site’ eighteen turbines, relocate T17 and T33, relocate internal roads and underground cabling. In short, most of the WEF design had been changed without the regulator’s permission. Retrospective authorisation was now being sought.
The Department of Planning and SGSC coordinated their activities to give BHWEF time to make the secondary consent application 56 . SGSC was directed by the Department of Planning not to inspect and verify turbine locations until they gave the ‘go-ahead’, that is, after the secondary consent application had been lodged by the developer. SGSC did its
55 Confirmed by the Department of Planning on 10 th November, 2014. 56 As reported by SGSC Planning Manager to SGS Council meeting on 17 th September, 2013 and confirmed by the same SGSC officer to TVCG lawyers that day. 30 first comprehensive onsite inspection of turbine locations in September 2014, nine months after local residents had first requested they do so.
In October, 2014 the Minister for Planning gave retrospective approval to the ‘micro-siting’ of eighteen turbines. The Victorian Planning Scheme does not define distances that constitute ‘micro-siting’. To-date, such matters have been dealt with on a permit by permit basis either by Ministerial approval by secondary consent, or by VCAT Order. It is arguable that by use of either instrument, permitted development plans are being amended to accommodate turbine resiting.
Approval was given by the Minister in the BHWEF case, without apparent regard for provisions sitting within the amended Clause 52.32.3. These require that:
‘ an application that includes a proposed turbine within two kilometers of an existing dwelling must be accompanied by …evidence of the written consent of any owner as at the date of that application of an existing dwelling located within two kilometers of a proposed turbine that forms part of a wind energy facility. In relation to permits issued prior to 15 March 2011 this does not apply to an application to amend a permit…unless the amendment of the permit would…change the location of a proposed turbine so as to reduce the distance between any proposed turbine and an existing dwelling. 57 (our emphasis)
According to Senvion’s own assessment 58 , turbines had been moved closer to five non- stakeholder residences and one stakeholder residence, all situated within two kilometers of the BHWEF. Permission from the owners of the five stakeholder residences was never sought nor had it been given.
In the case of T17 and T33, the Minister for Planning refused to approve their relocation on the basis they were not being micro-sited. He directed they be moved back to their original permitted sites.
On 12 th November, 2014 TVCG’s lawyers wrote to SGSC advising that the BHWEF substation, a large structure (more than 100 metres long and 50 metres wide), had been moved from its permitted location by up to three hundred metres, onto a different land title. Location of the transmission easement from the substation had been changed and so, too, the underground cabling to the substation. Again, we sought enforcement of the permit conditions.
Yet again, our complaint saw SGSC notifying the Department of Planning and they notified the developer. This resulted in a further secondary consent application to the Minister from the developer seeking retrospective approval.
The timing of this Ministerial decision was dictated by the Victorian State poll and the election of a new government. In January, 2015 the new (acting) Minister for Planning went on to approve retrospectively the re-sited substation and to approve the re-siting of T17 and T33, reversing the previous Minister’s refusal.
The BHWEF regulatory saga had taken on a truly surreal dimension. TVCG, our members and lawyers had assumed an unofficial compliance role while the official regulator – SGSC, the Department of Planning and its successive Ministers - were behaving like an arm of BHWEF/Mitsui busily ‘erasing’ planning permit breaches.
57 VPS Clause 52.32.3 ‘Turbine within two kilometers of a dwelling’ p 1-2 58 Senvion correspondence to BHWEF Re: As Built Development Plans and Wind Turbine 33 and Wind Turbine 17 Final Siting Process , 12 September, 2014 31 8.3 Gullen WEF, and a New South Wales – Victoria comparison
When confronted with the similarly errant Gullen WEF developer, who had moved 69 of its 73 turbines without authorization, New South Wales took a very different planning and assessment approach to Victoria. The NSW Department of Planning and Environment conducted a comprehensive independent investigation to determine the impacts of turbine and services relocation. Wind turbine location, visual impact, noise impact, biodiversity, cultural heritage impacts and a range of other matters were reviewed and considered. It concluded:
‘The Department considers the modification , subject to recommended conditions, can be revised and operated to achieve acceptable visual, noise and biodiversity outcomes.’59 (our emphasis)
The Gullen WEF situation was then subjected to a further independent review by the NSW Planning Assessment Commission 60 . Appraising planning law and NSW WEF statutory planning arrangements the Commission received public submissions, held public hearings, and conducted site inspections before arriving at a contrary view to the Department’s:
On balance, the Commission does not consider the benefit of the proposed modification outweighs the potential adverse impacts on the community, the rural and natural environment or on non-associated properties. Having regard to the findings above, the Commission determines not to approve the modification application …for the following reasons:
1) The application is inconsistent with the intent and spirit of the Draft NSW Planning Guidelines: Wind Farms .
2) The application, if approved, would have significant visual impact on non- associated residences and the proposed vegetation screening would not be able to mitigate the impact on all affected residents to an acceptable level. 61 (our emphasis)
In its considerations, the NSW Planning Assessment Commission explained its role thus:
The Commission must consider every modification application on its merits even if a breach has occurred. This means that the Commission must consider the application in the same way it would have done if the turbines had not yet been erected. A breach of the original conditions of approval is not a reason to refuse an application . However, equally it cannot take into account the cost to the applicant of having to move the turbines if this application is not approved .
The planning legislation provides separate process for any breach of approval conditions under its enforcement provisions (sections 123 and 125). Further a modification approval does not operate retrospectively.
The Commission notes from the Department’s report that it is considering taking separate compliance action on this matter. 62 (our emphasis)
The NSW arrangement stands in stark contrast to the Victorian situation. The NSW Planning Assessment Commission equips New South Wales with a robustly independent planning review body and an ‘arms-distance’ assessment capacity, well away from the
59 NSW Department of Planning and Environment, Major Project Assessment: Gullen Range Wind Farm, MPO7_118 (01) Secretary’s Environmental Assessment Report, July 2014 p 43 60 http://www.pac.nsw.gov.au/AboutUs/tabid/55/Default.aspx 61 NSW Planning Assessment Commission Determination Report, Gullen Range Wind Farm Project (MPO7_0118), Upper Lachlan Shire LGA p 8 62 Ibid p 2 32 Minister, the Department and its transactional relationships with developers. PAC members are expected to comply with a robust code of conduct in carrying out their duties. 63
The Commission is staunchly neutral and planning focused. It doesn’t consider economic improvements or costs in matters under its investigation. Its existence is also separate from compliance responsibilities which remain under the purview of the Department as defined by the NSW Environmental Planning and Assessment Act. The Commission’s functions, set out in Section 23D of the EP & A Act, include:
• To determine applications for major developments under delegation from the Minister; • To review any major development including conducting of public hearings; and • To provide independent expert advice on planning and development matters. 64
The NSW Planning Assessment Commission stands as a point of fundamental difference between New South Wales and Victoria. We suggest the PAC should be of close interest and further consideration by the Senate Committee in its consideration of WEF regulation and compliance.
The New South Wales WEF guidelines and Victoria’s VPS Clause 52.32 and related planning guidelines share some similarities. Both provide for a two kilometer set back from residences. Both require the written consent of residential property owners if turbines are moved closer. If consent is withheld in New South Wales, an additional level of assessment must occur.
The key major difference between the two States is that New South Wales has an independent mechanism to uphold these guidelines. Victoria does not. New South Wales has a clearly defined independent process for assessing and reviewing planning matters without exposing applicants from the public to legal costs or risk of further legal action. Victoria does not. New South Wales has a clearly established means to direct an errant developer to ‘make good’, without risking huge costs coming on to State taxpayers. PAC directions are final and cannot be appealed at law.
In consequence, New South Wales was able to arrive at an independent, well considered conclusion about the planning merits of unauthorized changes to the Gullen WEF. Separate compliance action may follow. In contrast, in its zeal to facilitate retrospective approval of unauthorized changes to the BHWEF permitted development plans, SGSC, Victoria’s Department of Planning and its Minister appear to have become entangled in a range of statutory process breaches and misuse of their planning powers.
8.4 Some BHWEF impacts on local flora and fauna
Although our TVCG Part B submission focuses on the environmental assessment process and statutory approval of the BHWEF, we take this opportunity to add a saddening post script.
Firstly, at the 2012 VCAT hearing TVCG appeared representing the ‘environmental interest’. In particular, we expressed concerns that since 2004, the developer had not yet fulfilled the requirements of Planning Panel Recommendation 10:
The fauna monitoring program for the site should be modified to include thorough assessment of the Southern Bent-wing Bat numbers over time at Arch Rock , to be used as a reference for impact analysis’.
63 http://www.pac.nsw.gov.au/Members/CodeofConduct/tabid/58/Default.aspx 64 www.pac.nsw.gov.au/AboutUs/tabid/55/Default.aspx 33
Arch Rock, located a few hundred metres from the shoreline, is a roosting cave of protected indigenous bat species. Despite having eight years to overcome the ‘poor access opportunities’, cited at the 2012 VCAT hearing as an impediment to the survey – we suggest hiring a boat or wading out at low tide – the developer didn’t bother to do the field survey work necessary for an appropriately robust bat and avifauna management plan (BAM Plan).
In 2012, the Minister for Planning signed off the deficient BAMPlan and, later that year, VCAT upheld the Minister’s approval.
On a second matter, during the construction of the transmission line from BHWEF to the main grid, thirty or so kilometers distant, local farmers and residents became deeply distressed when BHWEF contractors clear-felled four kilometers (approximately) of remnant roadside vegetation with dire consequence for its wildlife inhabitants. In the space of six weeks, four koalas were found dead in and around the cleared areas (Appendix B 3-4). BHWEF had previously given a clear undertaking it would use selective clearing, not clear felling.
A neighbouring farmer and TVCG member had offered some years earlier to house the transmission line on her property to conserve the dense remnant vegetation and its inhabitants living on the roadside verge. Her family’s generous offer was ignored, presumably because a roadside transmission system was easier and cheaper to construct and maintain. The farmer hadn’t been motivated by the prospect of financial compensation: flora and fauna protection was her goal.
After the contractors had finished their unhappy business, BHWEF management offered to replant the razed areas. Understandably, this was received by local residents as a cynical public relations gesture.
34 9. A Commonwealth wind energy regulator
‘Community stands in silent reflection / With sounds only heard by the winds / Sounds of awe and wretched change / Wretched workers doing the bidding of their wretched masters.’
(A poem by local resident, Adam Cope upon observing BHWEF contractors felling native vegetation and wildlife in September 2014)
The Clean Energy Regulator (CER) is an economic regulator. It is unconcerned whether WEFs comply or not with State based planning and environmental legislation and regulation. It is equally unconcerned whether WEFs comply or not with the Commonwealth EPBC Act .
Put simply, the CER is the gate keeper, monitor and accountant of the renewable energy certification system. It assesses entrants seeking access into the system using eligibility criteria as described in the CER’s Explanatory Notes – Application for Accreditation :
Section H: Approval Details 23 and 24 Applicant must comply with all environmental and planning requirements at a Commonwealth, State, Territory and local government level to be eligible to participate in the LRET…Power stations must operate in accordance with any Commonwealth, State, Territory or local government regulations. The application must demonstrate that the power station complies with all relevant approval processes. 65
Other than its application entrance requirements, appearing on its application form, the CER has no checking or enforcement capacity about environmental and statutory planning arrangements within State jurisdictions. It is philosophically committed to self regulation in the LRET/REC system. RECs (renewable energy certificates) are its focus, not WEF industry practices.
Given this context, we would have some concerns about both the competence and inclination of the CER to involve itself in State jurisdictional matters involving environmental and statutory planning regulation and compliance.
The Commonwealth Renewable Energy (Electricity) Act 2000 is the industry development legislative ‘driver,’ responsible for promulgating large scale wind energy facility development, nationally. As such, the Commonwealth carries a sizeable moral and philosophical responsibility to encourage good and appropriate regulation of the industries it is sponsoring.
We suggest the Commonwealth should consider amending the Commonwealth Renewable Energy (Electricity) Act 2000 to create an additional approval requirement for participants seeking access to the REC system. This arrangement would require States, Territories and local Councils to demonstrate and prove that their State and local regulatory arrangements can and do meet a required standard of WEF regulatory performance. Under this arrangement, WEFs would continue having to meet their initial eligibility and annual reporting requirements to the CER. However, their eligibility to participate in the LRET/REC scheme would also require the State jurisdiction in which their WEF is located to meet a Commonwealth determined performance standard and reporting requirement.
A Commonwealth regulator specific to the wind energy industry could and should be created and tasked with the responsibility of setting a national standard for WEF regulation. This
65 Australian Government Clean Energy Regulator - Explanatory Notes-Application for Accreditation, Version 6 updated April 2012 p 10 35 would be used to assess State and Territory applicants, their institutional arrangements and operational performance. If there was a demonstrated need, it may be possible to extend this regulatory function to include other sectors of the renewable energy industry. There are already tangible signs of State based regulatory failure impacting the small scale photo voltaic sector.
In our submission we have sought to demonstrate that it is possible to identify regulatory arrangements that work better, from those that are failing. We suggest it would be eminently achievable to define those elements of a State based statutory planning and regulatory system that support and encourage good WEF design and operating standards: WEF standards that respect the neighbours and minimise the environmental footprint of WEFs during their construction, operational and decommissioning phases.
If States and Territories were required to show their bona fides before WEF developers in their jurisdiction could access the Commonwealth REC system, we suggest the wind energy industry would stop being a defender and exploiter of lax regulation and systemic failures and become a fierce advocate of regulatory system ‘best practice’.
A Commonwealth wind energy regulator should also have responsibility for identifying specific matters of a systemic nature that impact the quality and operation of WEF regulation, nationally. An appropriate acoustic emission standard, that includes regulating acoustic monitoring and testing instrumentation, is an obvious example.
The Commonwealth wind energy regulator should be resourced with independent research and development capacity in those areas identified as being of strategic importance to the achievement of best practice WEF regulation. Acoustic emission research, WEF environmental impact research and harm minimisation measures are two important areas of research activity that immediately come to mind.
36 References
2004 Bald Hills Wind Farm Project EES, EES Supplement and Called In Permits Report, 24 June 2004
The Acoustic Group – The Results of an Acoustic Testing Program Cape Bridgewater Wind Farm 44.5100.R7: MSC , 26 th November, 2014 commissioned by Energy Pacific, Melbourne
Amendment VC78- Wind Energy facility provisions – Clause 52.32
CER’s Explanatory Notes – Application for Accreditation, Version 6 as updated in April 2012
DPCD Briefing Memorandum BMIN11632 to Minister Matthew Guy, Waubra Wind Farm Permit Compliance , 22 nd August, 2011
DPCD Ministerial Briefing Note CMIN039564 from DPCD to the Minister for Planning , Bald Hills Wind Farm Permit Conditions , 10 th July, 2012
EPA Victoria - ‘Application of New Zealand Standard 6808 for Wind Farm Noise – An EPA Victoria Guideline’ http://www.energyandresources.vic.gov.au/energy/sustainable-energy/wind-energy/wind- projects -
Huson, L. - Submission to the Senate Environment and Communications Legislation Committee – Renewable Energy (Electricity) Amendment (Excessive Noise from Wind Farms) Bill 2012
NSW Department of Planning and Environment, Major Project Assessment: Gullen Range Wind Farm, MPO7_118 (01) Secretary’s Environmental Assessment Report, July 2014
NSW Environment and Planning Assessment Act 1979
NSW Planning Assessment Commission Determination Report, Gullen Range Wind Farm Project (MPO7_0118), Upper Lachlan Shire, October, 2014
NSW Planning Assessment Commission Members Code of Conduct
Planning Permit No TRA/03/002 Bald Hills Wind Energy Facility
Planning Policy Guidelines – WEF , 2003, revised 2012
Victorian Planning and Environment Act 1987
Senvion correspondence to BHWEF Re: As Built Development Plans and Wind Turbine 33 and Wind Turbine 17 Final Siting Process, 12 September, 2014
SLR Bald Hills Wind Farm – VCAT P2002/2012, Acoustic Review, Expert Witness Statement, 24 th July
VCAT Order, VCAT Reference No. P2002/2012 , 25-26 th July 2012
Windtest Grevenbroich gmbh, 2009 Acoustic Report for a wind turbine type RePower MM92 at Chemin D’Ablis/France operation mode 2050 kw.
37
Appendix A
Recommendations of the 2004 BHWEF Planning Panel
Recommendation 1: Parks Victorian should consult with users of the Bald Hills Wetland Reserve to determine options and costs for the relocations and reorientation of the walking track and bird hide in the reserve, to ensure that turbines cannot be viewed from the bird hide. Detailed design should take place following construction of the wind farm. The proponent should be required to enter into a legal agreement requiring it to cover the reasonable cost of this work.
Recommendation 2: Parks Victoria, the Proponent and Stakeholder landowners should enter negotiations to determine the possible value, content and design of a combined wind energy and reserve interpretation facility located at or near to the current entrance to the Bald Hills Wetland Reserve.
Recommendation 3: The proponent should fund and prepare a roadside landscape and windbreak management plan for the Tarwin Lower-Waratah Road and the Buffalo-Waratah Road in collaboration with the South Gippsland Shire Council and abutting landowners, largely to address the likely widespread loss of pine trees on these roads.
Recommendation 4: Subject to consultation with and support of the South Gippsland Shire Council and abutting landowners, the proponent should fund and prepare a roadside landscape management plan for Stewarts and Dunlops Road.
Recommendation 5: The proponent should also be encouraged to contribute towards on farm revegetation works that may render landscape benefits, through programmes such as Landcare.
Recommendation 6: Before the commencement of construction, a spring survey should be undertaken for the following listed flora species (preferably following normal rains):
Caladenia fragrantissima subsp. orientalis Prasophyllum frenchii Pterostylis cucullate Sowerbaea juncea Caladenia vulgaris Agrotis avenacea var. perennis and; Monotoca glauca.
Recommendation 7: Should any of the species be found to be present in areas proposed to be cleared for construction, consideration should then be given to micrositing and/or turbine relocation.
Recommendation 8: Turbine 10 should be relocated to one of the assessed alternative turbine locations (A1-A5). In selecting a location, A2 should be avoided as development there would also be likely to cause avoidable vegetation loss.
Recommendation 9: The project Native Vegetation Management Plan should provide for an evaluation of the flora values of roadside vegetation in locations proposed for construction vehicle access, turn outs or corner clearance. Locations containing Eucalyptus Kitsoniana should in principle be avoided.
Recommendation 10: The fauna monitoring program for the site should be modified to include:
• A thorough assessment of the Southern Bent-wing Bat numbers over time at Arch Rock, to be used as a reference for impact analysis;
38 • Placing of Anabat recorders on the ground and on turbine towers at various heights to obtain relative bat utilisation data; • Examination of bat utilisation trends (if any), including weather, diurnal and seasonal changes; and • Extension of the count of bird kill monitoring to include bat kill, with an appropriate scavenging rate for small mammal carrion applied to this work
Recommendation 11: The bird assessment should be re-documented by Brett Lane and Associates in close consultation with DSE, using existing data, plus such additional data as in the reviewer’s opinion is necessary to be provided. The re-documentation should provide the following in a single document:
• A simple and clear statement of the identified issues for birds. • A simple and clear statement of the results of preliminary discussions and investigations, including of contact with: Commonwealth and State agencies, local field naturalists groups and use of relevant databases to scope which species are likely to be present. Where in the view of the department additional data sourcing is required, this should take place. • A simple and clear statement of the results of all preliminary or scoping surveys, including any work undertaken to determine the likelihood of relevant species presence or absence (including the absence of roosting use) in adjacent reserves, particularly Bald Hills Wetland Reserve. Individual species requiring specific attention should be itemised, together with an assessment of their conservation status. Where in the view of the department additional on site scoping is required, this should take place. • A simple and clear statement of the considerations which led to the design of the bird utilisation surveys, with an explanation how these have been adjusted to take account of the results of initial discussions, investigations and scoping surveys. The following issues should specifically be examined: the hours of survey, the possible need for replacement of any of the reference sites, and the possible need for targeted surveys offsite. Where in the view of the department additional or replacement survey or statistical work is required to address a potential for significant change to bird utilisation or species population risk, this should take place . • A simple and clear statement of predicted outcomes for bird species in the locality that utilise the wind farm site, explaining the predicted level of impact to those that are listed under the EPBC and FFG Acts, including migratory species. This should list species, their conservation status and where a population is under any level of threat should set out a justified mortality rate and conclude on the degree to which population effects might flow. The conclusions should allow for the alteration in wind turbine numbers including the reduced number of turbines, larger individual swept area and reduced ground clearance provided for in the SEES.
Recommendation 12 : This review should be carried out to the satisfaction of the Minister for Planning. The issue of the permit should await its completion.
Recommendation 13: Before the commencement of construction, new local noise backgrounds should be taken at the Fox and Burfield properties
Recommendation 14: Where the relevant acoustic performance standard for a dwelling cannot be met on a proponent stakeholder property, the property owner should enter into an agreement under section 173 of the Act providing that the dwelling may only be occupied by a person who is a shareholder in or entitled to receipt of turbine rents from the project and the family of such a person.
Recommendation 15: A night compliance period should be defined for the purposes of NZS 6808. Of preference, this should be the night as defined in SEPP-N1. Within the defined night period, the wind energy facility should not exceed the standard more than 10% of the time. This approach should protect the interest of occupants in undisturbed sleep.
39 Recommendation 16: In accordance with NZ 6808, a 5dBA penalty should apply to noise experienced at sensitive receptors that contains annoying tonal variations and cyclic beats.
Recommendation 17: For the purpose of meeting any limit pursuant to NZS 6808, including a 5dBA penalty limit, the proponent is entitled to seek to demonstrate to the satisfaction of the responsible authority that time or climate responsive acoustic optimisation and/or temporary turbine shutdown regime can be implemented, before enforcement is commenced seeking the permanent removal of a turbine or turbines.
Recommendation 18: In this case, the Minister for Planning should retain the ongoing responsibility for monitoring and enforcing acoustic conditions. The proponent should underwrite the actual cost of a monitoring programme to the satisfaction of the Minister.
Recommendation 19: In the medium term, consideration should be given to the establishment of a role for the EPA in monitoring and enforcing acoustic conditions.
Recommendation 20: In the medium term, consideration should be given to the use of a SEPP or other relevant Victorian standard to define the specific application of NZS 6808 and or the forthcoming Australian Standard to wind energy facilities within Victoria.
Recommendation 21: Specific off site landscape program works to address residential amenity impacts should take place at the following properties, subject to agreement with the landowners:
• Walker/Holz (140 (screen plantings) • Fox (7) (assessment of existing planning and possible augmentation or replacement); • Price (5) (assessment of existing planning and possible augmentation or replacement); • Fairbrother (10) (screening planting); • Uren (26) (screening planting); • Burfield (2) (screening planting and possible physical screening and minor dwelling works).
Recommendation 22: Steps should be taken to ensure that proponent stakeholder dwellings where normal visual amenity standard may not be met do not form part of the general dwelling pool. Occupation should be restricted to those persons directly interested in ownership or management of a wind farm property.
Recommendation 23: A pre-construction inspection of existing roads proposed to be used by construction traffic should be carried out by the proponent, DSE and Council. The inspection should determine and document the agreed condition of the roads and together with any works necessary to enable them to carry the anticipated traffic. This document is to be used as the basis for assessing the remedial work necessary as a result of the construction process.
Recommendation 24: The proponent’s Traffic Management Plan should be amended to make it clear that:
• The cost of all required road works and the costs of maintenance attributable to the development should be carried out at the developer’s expense • Regular inspections should be carried out to ensure that the required safety standards re provided.
Recommendation 25: The proponent should enter discussions with the McDougall family and any similarly located owners of rural tenements over 40 ha close to the proposed wind farm which currently lack a dwelling. The purpose of these discussions should be to advise of areas within their land where a dwelling site can be selected to ensure that appropriate amenity standards, equivalent to those of existing dwellings, will apply.
Recommendation 26: In relation to all other dwellings that post date the wind farm planning process, whether as of right or subject to permit, the following principle should apply: the onus of 40 responsibility for the cost of management of turbine noise and blade shadow amenity impacts should fall upon the agent of change.
Recommendation 27: Where a new dwelling is as of right, it should not be subject to the amenity protection otherwise provided in the wind farm development approval.
Recommendation 28: Where a new dwelling is subject to permit, it will be normal to expect that the wind farm operator may object and request the application of a permit condition to ensure appropriate siting and or design measures to reasonably control amenity impacts.
Recommendation 29: The Panel does not recommend a decommissioning bond in this case. However, where PPG-WEF is next reviewed, DSE should consider as a matter of general principal whether the wind energy industry is (sic) to which the decommissioning bond approach might be generally applied.
41
Appendix B 1: A small section of Bald Hills wind farm showing off its big construction footprint.
42 Appendix B 2: Map attached to the DPCD Hodge letter 6 th July, 2012 advising BHWEF that 11 turbines (circled in yellow) could not achieve noise compliance.
43 Appendix B 3: Cartoon appearing in the South Gippsland Sentinel Times , 23 September, 2014 reflecting something of the public mood locally.
44
Appendix B 4 – one of four dead koalas found by local residents over a four-six week period, killed by BHWEF contractors clear-felling remnant vegetation to install the transmission system. The owner of the paddocks behind had offered use of their land to avoid vegetation clearance. Their offer was ignored.
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ENVIRONMENTAL IMPACTS OF THE BALD HILLS WIND FARM
Report to Tarwin Valley Coastal Guardians, Inc.
Dr Lucas Bluff
FINAL VERSION 16th April 2009
Cover image: Lathams Snipe Gallinago hardwickii, a protected species that migrates between Japan and Australia. Woodcut by Japanese wildlife artist Ohara Shoson c. 1926 (with digital modification).
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EXECUTIVE SUMMARY
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EXECUTIVE SUMMARY
This report investigates the environmental impacts that may arise from the construction of a wind farm at Bald Hills, in southern Australia.
The proposed wind farm may have deleterious environmental effects. In particular, the positioning of the wind farm in proximity to areas of important habitat for bats, raptors and migratory birds raises concerns that these vulnerable taxa will be affected. However, the development has achieved statutory approval, on the assumption that significant impacts will not eventuate. The evidence-base for this assumption is examined here. The aim is to determine the appropriate level of confidence for the absence of significant environmental impacts.
The process of environmental assessment for the Bald Hills wind farm is reviewed. The key empirical evidence for statutory approval was a small-scale field study. Substantial shortcomings in the methodology and duration of this study are noted.
Since earlier reviews of the environmental effects of the proposed wind farm were conducted, there has been a notable increase in the available scientific literature on the environmental impacts of wind farms. This literature is consulted to assess the predictability of direct and indirect effects of wind turbines on birds and bats. It is found that such effects vary substantially in their likelihood and severity, according to site- and species-specific factors.
This report concludes that in light of: (i) the presence of vulnerable species in proximity to the wind farm, (ii) the low level of effort expended on surveys at the affected site, and (iii) the unpredictability of wind farm impacts in general, It is not possible to be confident that the Bald Hills wind farm will have no significant environmental impacts.
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TABLE OF CONTENTS
SECTION 1: INTRODUCTION 1
1.1 Report background 2 1.2 Environmental context of the development 3 1.3 Summary of the assessment process 5 1.4 Bird survey 7
1.4.1 Overall survey effort 7 1.4.2 Survey timing 7 1.4.3 Survey spatial design 8
1.5 Bat survey 9 1.6 General level of scientific conduct 9 1.7 Scientific adequacy of assessment 10 1.8 Inconsistency in the environmental assessment process 10 1.9 Key concerns for the impacts of Bald Hills wind farm 12
1.9.1 Insufficient scientific knowledge of impact on avifauna 12 1.9.2 Insufficient scientific knowledge of impact on bats 16 1.9.3 Insufficient scientific knowledge of impact under future environmental 18 uncertainty
SECTION 2: THE SCIENCE OF WIND FARM IMPACTS 20
2.1 Absence of primary scientific sources from past assessments 21 2.2 Scientific literature on wind farm environmental impacts 21
2.2.1 Direct impacts of wind turbines on birds 22 2.2.2 Indirect impacts of wind turbines on birds 24 2.2.3 Direct impacts of wind turbines on bats 25 2.2.4 Indirect impacts of wind turbines on bats 26
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SECTION 3: ENVIRONMENTAL IMPACTS OF 27 BALD HILLS WIND FARM
3.1 Low environmental impact: how confident can we be? 28
3.1.1 Assumption I: The wind farm would pose a low risk to birds 28 3.1.2 Assumption II: The wind farm would pose a low risk to raptors 30 3.1.3 Assumption III: The wind farm would pose a low risk to rare species 31
3.2 Appropriate confidence levels for predicted impacts 34
3.2.1 Case study I: confidence level for low impact on the Bent-wing Bat 34 3.2.2 Case study II: confidence level for low impact on the White-throated 36 Needletail
SECTION 4: CONCLUSION AND REFERENCES 39
4.1 Conclusion 40 4.2 References 41 4.3 Figure credits 45
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SECTION 1: INTRODUCTION
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1.1 Report background
The Tarwin Valley Coastal Guardians Inc. commissioned this report into the environmental impacts of the proposed Bald Hills wind farm. In an initial scoping study, I reviewed existing sources of information, including previous assessments by consultants employed by the proponent, by appointed reviewers and by the general public, including my own submission to the 2004 Victorian Planning Panel. It was found that the potential environmental impacts of this project justified detailed examination. Here I provide such an examination, integrating the original impact assessment work with current scientific literature on the effects of wind turbines on bats and birds.
The proposed Bald Hills wind farm has achieved statutory approval. This was granted on the basis of an environmental impact assessment by Brett Lane and Associates, with subsequent reviews conducted by the Victorian Planning Panel, Dr Penny Olsen and Dr Charles Meredith. No further field work was conducted after the initial site surveys by Brett Lane and Associates, and accordingly there was little empirical basis on which to predict likely impacts of the wind farm. While hard data for the specific impacts of this development are still lacking, a substantial scientific literature has accumulated since the original evaluation of this project. In the following report, I review this literature to determine what level of confidence can be placed in the original environmental assessment. My analysis is framed around the following question:
What is the appropriate level of confidence for the absence of significant environmental impacts arising from the Bald Hills wind farm?
To answer this question, I will examine the process by which environmental impacts were initially assessed, highlighting areas of possible concern. I will then examine the scientific literature surrounding these concerns, and return to make a final judgment of the confidence that can be placed in the potential impacts of a wind farm at Bald Hills.
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1.2 Environmental context of the development
The region bounded by Andersons Inlet, Bass Straight and Corner Inlet is of tremendous environmental value and natural beauty. It comprises one RAMSAR wetland, three nationally important wetlands, three coastal parks, four marine parks, flora and fauna reserves of state-level significance, and one of Australias premier National Parks (Figure 1). The Bald Hills wind farm would be located in the centre of these significant natural features, and thus has the potential to affect the value of the area as a whole to wildlife. Environmental assessment of the development was undertaken with a specific focus on the local site, with some consideration of the adjoining Bald Hills State Wildlife Reserve and Kings Flat Flora Reserve. While this assessment was judged inadequate in several regards (see Sections 1.4-1.7), even less attention has been paid to environmental effects of this development on animal movements at larger spatial scales. Birds, particularly raptors, waterbirds and migrants, are not constrained by administrative boundaries. The proximity of the Bald Hills wind farm to areas of major value habitat value (Table 1) presents conservation issues that are easy to ignore and difficult to quantify.
Table 1: A list of formal reserves of substantial environmental value in the affected area
Distance to Reserve Title wind farm Bald Hills State Wildlife Reserve (Listed Wetland) <1 km Cape Liptrap Coastal Park <1 km Kings Flat Flora Reserve <1 km Anderson Inlet (Listed Wetland) 10 km Shallow Inlet Marine Park (Listed Wetland) 13 km Shallow Inlet Coastal Park 14 km Corner Inlet Coastal Park 18 km Corner Inlet Marine Park (RAMSAR Wetland) 18 km Wilsons Promontory National Park 20 km Wilsons Promontory Marine Park 23 km Bunurong Marine Park 23 km
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lue). of surrounding areas of conservation significance. number of parks and reserves, both terrestrial (green) and marine (b Figure 1 : The proposed Bald Hills wind farm in the context The wind farm (red) would be in close proximity to a large
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The proposed Bald Hills wind farm is a large development, comprising some 52 wind turbines distributed over approximately 1340 hectares. The tenure of the proposed development is up to 25 years. Accordingly, the environmental impacts of this development must be assessed at an appropriate temporal and spatial scale. This means that landscape and regional effects must be considered, in addition to the local impacts around which environmental assessment of the project has largely been constrained.
A landscape-scale Biodiversity Action Plan for the area has been prepared by the Victorian Department of Sustainability and Environment (Wallis et al. 2003). It reveals that the area supports some 57 species of threatened fauna and 20 species of threatened flora. The management plan highlights the importance of protection of remnant flora and fauna and their habitats, in line with state- and national-level legislation. A primary goal in this process is the enhancement of connectivity between areas of existing habitat, to facilitate free movement by animals. Construction of the proposed Bald Hills wind farm would be in direct opposition to this goal, and could be particularly deleterious to migratory birds, raptors, and other vulnerable species (see Section 1.8).
1.3 Summary of the assessment process
The environmental assessment of the Bald Hills wind farm was a complex process, drawn out over several years, with three rounds of official assessment at Federal level and two at State level. The major events in this process are outlined in Table 2. Much of this complexity and delay appears to have been caused by the inadequacy of environmental assessment conducted by Brett Lane and Associates, the principal environmental consultants employed by Wind Power Pty Ltd. Many of the shortcomings of Lanes work were made evident in submissions by the public (including myself) to the Planning Panel in 2003 and to the Minister for the Environment in 2006. However, here I will focus discussion on the formal assessment of Lanes work by independent experts.
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Table 2: Major events in the environmental assessment process for Bald Hills wind farm
Date Action Outcome
Wind Power Pty Ltd submits a proposal to the Proposal deemed to be a controlled action; 23rd June 2002 Federal Government for construction of a wind further assessment to proceed by Victorian farms at Bald Hills state-level Environmental Effects Statement
Environmental Effects Statement 274 public submissions; 10th June 2003 exhibited for public comment Wind Power revises proposal
Revised proposal, EES and supplementary EES October 2003 >1100 public submissions received exhibited for public comment
Planning Panel appointed to conduct public 23rd Jan 2004 Panel report submitted 24th June 2004 hearings March-April 2004
Dr Penny Olsen appointed to review adequacy 9th Nov 2004 Report submitted 18th Jan 2005 of environmental assessment under EPBC Act
Biosis Research commissioned to assess 23rd May 2005 Report submitted 22nd Feb 2006 impacts of birdstrike on wind farms
Environment Minister Ian Campbell rejects Wind Power mounts a legal challenge to the 3rd April 2006 proposal on environmental grounds Federal Court seeking review of decision
Wind Power Pty Ltd makes a modified 21st Sept 2006 167 public comments received submission under the EPBC Act
Opinion sought from Dr Charles Meredith on Report submitted 8th December 2006 17th Nov 2006 impacts to avian and flying fox species
Environment Minister Ian Campbell Project to proceed; 21st Dec 2006 approves proposal subject to certain conditions
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1.4 Bird survey
1.4.1 Overall survey effort Brett Lane and Associates conducted bird utilization surveys over five days in each season during 2002. While there is some inconsistency in the exact number of hours reported by Lane (Olsen 2004), the total survey duration on the wind farm site was 64 hours (Lane 2004). This total was judged by Dr Penny Olsen as low and by Dr Charles Meredith as a relatively low survey effort (quoted in Smith et al. 2004). The consensus among Olsen, Meredith and the Planning Panel was that the overall survey effort was at best adequate, and by no means comprehensive. This quantity of effort could have produced an appropriate level of scientific assessment if, and only if, the quality of survey was high. The next two points address the quality of this work.
1.4.2 Bird survey timing The survey work by Brett Lane and Associates was undertaken between 8:00 am and 5:00 pm (Lane 2003), although some counts may have been marginally earlier (Lane 2004). I identified this as a major shortcoming of the survey in my submission to the Panel in 2004, and provided evidence from the scientific literature that bird surveys are typically done early in the morning when birds are most active, finishing late morning. The effect of conducting surveys outside the periods of maximum birds activity is to reduce the apparent bird utilization rate of the site. The Panel heeded this point and asked Lane to clarify the reasons for adopting this survey design. It deemed Lanes response unsatisfactory: the Panel considers that [Lane] has missed the point raised by submittors. It was not the intention of Mr Chapman or Mr Bluff to suggest he should bias his survey towards the early morning or indeed evening periods of observation. Their concern simply was that these periods of the day, which happen to be periods when bird utilization takes place, were not represented in his survey in any formal sense. The Panel shares this concern.
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The Panel also cross-questioned Dr Meredith on this issue during the hearing process, to which Meredith replied Our experience has been that you really need to start predawn and finish after dusk. You need to start about half an hour predawn until half an hour after dusk. There is very, very little activity outside those times, of course you will get the odd nocturnal activity of some species, but you will get different levels of activity very early and very late in the day for different species than you do, so the eight oclock, the working hours approach, will certainly miss out on some activity patterns especially outside the winter. I thought they could have gone a bit wider than that. Its too late to start and too early to finish. It has been acknowledged that the timing of Lanes survey work was flawed, and that the result of this error is to reduce the apparent utilization of the site by birds and potentially to miss movement patterns of some species altogether. Therefore, the risk that the development would pose to birds is unambiguously higher than that claimed by Lane.
1.4.3 Survey spatial design Dr Olsen stated that the search area of 100 metres around a central point is adequate for small birds, but may give an underestimate for larger birds, such as raptors and waterbirds. A larger radius (500-800m or so) is recommended for larger, more visible birds with a larger territory. The effect of this inappropriate method is to reduce further the apparent risk that the development poses to birds. The effect is twofold: first, a large reduction in absolute area searched (e.g. the minimum radius of 500 metres recommended by Dr Olsen gives a search area 25 times greater than that searched by Lane); and secondly that highly mobile, wild birds typically avoid approaching humans to within 100 metres. In assessing Olsens recommendation versus Lanes methodology, it is worth noting that Dr Olsen is a raptor specialist. Furthermore, as raptors and waterbirds are particularly vulnerable to collision with windfarms, Lanes inadequate survey technique is a matter for serious concern.
In summary, substantial shortcomings in Brett Lane and Associates avifauna survey work were detected by the public and by experts. Therefore, it appears that the level of confidence that can be attached to Lanes assessment of impact on birds is minimal.
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1.5 Bat survey
Brett Lane and Associates conducted acoustic monitoring for bats at a single location, in March 2005. Bat detectors were active over four nights, however the mast-mounted detector required to assess bat presence at turbine altitude was only functional for two of these nights. Furthermore, not all survey nights appear to have been suitable for bat activity (Appleton 2004). Calls of at least three species were identified, confirming bat activity in the area. The Planning Panel focused their discussion around Bent-wing Bats, which are of conservation concern and are known to roost nearby (see Section 1.8.2). The Panel acknowledged that Lanes bat survey work was insufficient to quantify the presence of Bent-wing Bats at the site, and recommended extended monitoring of the bat population and of bat kills. An expert on this species, Dr Belinda Appleton, also provided an assessment of Lanes work. Dr Appleton found that bat survey work was inadequate, and that Lanes statements of low impact were unjustified. She concluded that the proposed wind farm should not be approved until the necessary investigations into effects on bat mortality have been carried out.
1.6 General level of scientific conduct
Scientific conduct requires: full disclosure of methods for data collection and assessment; clear presentation of data and conclusions; and objective reporting when comparative data are used. Various experts raised concerns over these aspects of Lanes work. Dr Olsen found that Many statements are unsubstantiated, Very little comparative data is presented, so that statements [ ] are hard to assess and appear to be purely subjective and that there was a general feeling of uncertainty of the report. The Planning Panel were concerned that the reports contained a number of data copying, presentation and mathematical errors that, whilst small altered or affected the results of Mr Lanes work. In general, the Panel felt the exhibited EES and SEES natural environment documentation and expert witness reports were disaggregated, poorly structured and difficult to use. Dr Appleton raised concerns that Lane was selectively reporting studies in order to reduce the apparent level of risk to bats.
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1.7 Scientific adequacy of assessment
The Panel can only conclude that this is a body of work that is approaching the threshold beyond which it cannot be used for effective, rationally based public decision making. (Smith et al. 2004)
Given that the Planning Panel consisted of conservative non-specialists attempting to make objective assessment in the public interest, this is a damning criticism indeed. As no additional survey work has since been conducted at Bald Hills, this remains an up-to-date statement on the inadequacy of empirical evidence on which the environmental impacts of the development can be judged.
1.8 Inconsistency in the environmental assessment process
Science and politics do not mix well. The environmental assessment of the Bald Hills wind farm began on a poor scientific level and, in the absence of further empirical data to inform decision makers, became increasingly political. Some concerns are raised below:
Poor communication by the proponent. The Planning Panel was concerned that the proponent and Department of Sustainability and Environment did not communicate adequately on environmental matters during initial assessment.
Lack of objectivity in peer review. Dr Charles Meredith (CEO of Biosis Research) was initially paid as an internal reviewer by Wind Power Pty Ltd and contributed to the Planning Panel Hearing in this capacity. Both Biosis and Dr Meredith were subsequently employed by the Department of the Environment, Heritage and the Arts, and their reports were key documents in the approval of the wind farm by the Minister. It is possible that Dr Merediths objectivity in preparing these reports may have been affected by his previous involvement with the proponent.
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Lack of an external standard for assessment. The only guidelines for environmental assessment of wind farms in Australia are the AUSWIND Best Practice Guidelines (AUSWIND 2006). It should be noted that these are internal industry standards only, and were authored in part by Lane: they are unlikely to be excessively demanding. Even despite this, the Panel found that Lanes own assessment work did not meet the minimum standard set by the guidelines.
Arbitrary re-positioning of turbines. The adoption of a 2km boundary between the coast and turbines was based on politics, not science. This error began as a simplifying assumption in the construction of a computer model for impacts of the wind farm on Orange- bellied Parrots (Smales 2005), and was at no point based on empirical data. The Orange-bellied Parrot Recovery Team was explicit in conveying that the 2 km boundary is erroneous in fact and is a misinterpretation (West 2006). However, the idea that the changed turbine layout would ameliorate impacts of the development on Orange-bellied Parrots persisted, and was even cited by the Environment Minister as a contributing reason for his approval on the wind farm (Turnbull 2007).
Inconsistency in environmental assessment at the Federal Level. The reversal of the Environment Ministers primary refusal of the project was the result of legal and/or political means applied by Wind Power Pty Ltd, not of any substantial change in environmental impact posed by the project itself. This is clearly evident from the revised submission by Wind Power Pty Ltd to the Minister (Newbold 2006), which is manifestly a politico-legal document, rather than one that brings new data or analyses. Minister Ian Campbell initially found that the project was unacceptable under the EPBC Act 1999 (Campbell 2006), and appears to have been subsequently forced to reverse this decision by legal pressure from Wind Power Pty Ltd.
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1.9 Key concerns for the impacts of Bald Hills wind farm
There are three main concerns which arise from the proximity of the development to areas of habitat significance, in combination with the limited extent of field surveys. In each case, potential for substantial deleterious impact of the development has been inadequately addressed. I will introduce these concerns below, and in Section 2 will go on to investigate them further in light of current scientific knowledge of the impacts of wind farms.
1.9.1 Key concern I: Insufficient scientific knowledge of impact on avifauna
It appears that the survey work conducted by Brett Lane and Associates was not of sufficient quality and quantity to provide adequate assessment of impacts of the development on birds. In particular, experience from wind farms overseas and in Australia suggests that raptors, waterbirds and migrants may be affected by the wind farm to a greater extent than previously recognized.
Bird migration is complex and only partially understood, but it appears that the Bald Hills area intersects the migration pathways of several categories of migrant birds (Figure 2). One group of species consistently migrates from breeding grounds on the eastern side of Eurasia, to overwinter in eastern Australia (Dingle 2008). Many of these species are shorebirds, for example Lathams Snipe Gallinago hardwickii (see front cover image), which breeds in Japan and Russia and is distributed throughout the Australian east coast in the austral summer (DEWHA 2009a). Such species are the subject of international treaties including the Japan-Australia Migratory Bird Agreement and the Bonn Convention, as well as domestic legislation such as the EPBC Act 1999. Another group of bird species follows varied migratory patterns: some members of the species may migrate within Australia while others migrate internationally; or some members may remain resident while others migrate domestically.
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raight ratory ratory an east sing throughout the Australi exact routes taken by individual mig northern hemisphere, disper he Bald Hills region. The proposed wind farm (red) lies in the pathway of various shown here are for illustration purposes; the species migrate from the the from migrate species ilsons Promontory areas are passed through by various species migrating across Bass St species are often uncertain. coast (green, see Dingle 2008). The pathways Figure 2 : Schematic of migration pathways through t migratory species. The Cape Liptrap and W (yellow, see Griffioen and Clarke 2002). Other
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An example is the Eastern Great Egret Ardea modesta (Figure 3), a widely-distributed and highly mobile species. The Australian population breeds largely in the north of Australia, and moves extensively around the continent outside the breeding season, partially determined by the availability of suitable habitat (DEWHA 2009b). In some species, all or part of the population migrates across Bass Strait, for example the Golden Whistler Pachycephala pectoralis migrates latitudinally in southeastern Australia, including acoss Bass Strait (Griffioen and Clarke 2002). The proposed wind farm is located in close proximity to Cape Liptrap and Wilsons Promontory, which form major routes for trans-Bass Straight migrants. However, all the forms of migration described above would potentially bring birds through the area affected by the wind farm development (Figure 2)
Figure 3: The Eastern Great Egret is a member of a group of species that have an elevated risk of collision with wind turbines (Langston and Pullan 2003).
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The proposed wind farm is located close to areas of significant habitat for waterbirds (Table 1). In particular, Corner Inlet, Shallow Inlet, Andersons Inlet and the Bald Hills Wetlands Reserve are all listed in the Australian Wetlands Directory because of their importance as habitat for these taxa (DEWHA 2009c). Such bird species are typically highly mobile and move according to resource availability. Intra-regional movement between these habitat areas would bring waterbirds into the area affected by the proposed windfarm at Bald Hills (Figure 1).
Figure 4: Large raptors, such as the Wedge-tailed Eagle, are particularly vulnerable to collision with wind turbines (Langston and Pullan 2003). Raptors are also highly mobile birds, and their Australian populations exhibit migratory patterns to varying extents (Griffioen and Clarke 2002). However, the risk to raptors appears to be largely associated with their species- and site-specific flight habits (Hoover and Morrison 2005). While wind farms have been shown to kill large numbers of raptors overseas (Smallwood and Thelander 2008), little research has been conducted on their impacts on Australian raptors. One Australian wind farm, of approximately the same size as the proposed Bald Hills wind farm, is alleged to have killed 18 Wedge-tailed Eagles Aquila audax (Lane 2008). A suite of raptor species is present in the Bald Hills area, including the White-bellied Sea Eagle Haliaeetus leucogaster (Figure 9), protected by the China-Australia Migratory Bird Agreement, and the Wedge-tailed Eagle (Figure 4).
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1.9.2 Key concern II: Insufficient scientific knowledge of impact on bats.
The Planning Panel noted that with regard to impacts of the wind farm on the Bent- wing Bat Miniopterus schreibersi: There is a real lack of knowledge concerning an endangered species (Smith et al. 2004). An expert on the species, Dr Belinda Appleton stated of the assessment process I am concerned by the lack of data (Appleton 2004). The species is listed as vulnerable under the FFG Act 1988, and the draft Action Statement prepared under this Act lists wind farms as a particular threat: it is possible that any wind farm built within the foraging range of a significant roosting site could have a major impact on that population (DSE 2008). This scenario applies to the current wind farm development at Bald Hills.
Figure 5: The Bald Hills wind farm (red) would be situated well within the core foraging range of a known colony of the vulnerable Bent-wing Bat.
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Figure 6: Arch Rock houses a colony of Bent-wing Bats some 4km from the wind farm site.
There is a roosting site for this species at Arch Rock, (Figure 6). The exact numbers at the site at any point in time are unknown, but the species is known to roost in large numbers (Figure 13). The distance from Arch Rock to the wind farm was variously stated by Brett Lane and Associates as 6 and 7 km, (Lane 2003). In fact, the nearest wind turbines would be erected 4 km from Arch Rock (Figure 5). Lane stated that the maximum foraging distance of Bent-wing Bats is 30 km (Lane 2003); whereas actual nightly foraging range exceeds 40 km (Appleton 2004). Bent-wing Bats are also known to disperse over great distances, and movements of over 1300 km have been recorded in the southeast Australian population (Dwyer 1969). It is clearly evident that the wind farm would lie within the core foraging range of the Arch Rock bat colony, and is within the path of dispersive movements linking this colony with other sites.
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1.9.3 Key concern III: Insufficient scientific knowledge of impact under future environmental uncertainty.
The primary effect of climate change on impact assessment is to reduce the level of certainty attached to any prediction. While climate models conflict in their specific predictions, the operational life of the Bald Hills wind farm (e.g. to ~ 2035) is sufficiently long that its environmental impacts may be affected by future climatic variation. To what extent future climate will change, and what effect this will have on animal abundance and distribution, is unknown. Various approaches have been taken to modeling avian responses to climate change, but the simple answer is that any given species may either accommodate climate change (whether by evolutionary changes or phenotypic plasticity), and/or move geographically (for a review see Huntley et al. 2006).
While a full study of the effects of climate change on impacts of the Bald Hills wind farm on the environment is beyond the scope of this document, it is worth bearing in mind the following points: The temporal scale of the development makes climate change a necessary consideration. Species must either adapt to climate change by corresponding changes in phenotype, genetics, or distribution. It is likely that these changes will be achieved under some level of selective pressure, ie increased mortality. The proposed wind farm may present an additional source of mortality, especially to birds. Habitat exclusion or turbine collision effects are more significant if populations are under considerable demographic stress. In some cases, the wind farm may directly reduce the chances of a species surviving climate change. For example, the Swift Parrot Lathamus discolor, Ground Parrot Pezoperus wallicus (Figure 7) and Orange-bellied Parrot Neophema chrysogaster, vulnerable species known to occur in the area surrounding the wind farm (DEWHA 2009c), are predicted to be found in only 2 to 50 % of their existing range by 2070 (Chambers et al. 2005). Habitat reduction, and the resulting change in movement patterns, would be exacerbated by movement barriers such as wind farms.
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The amount of CO2 offset by the Bald Hills wind farm is trivial in a global perspective. Even accepting the claimed savings of 450,000 tonnes per annum (Wind Power 2003), as a proportion of global carbon dioxide outputs this is approximately 1 in 100,000 (assuming a global annual production of 35 billion tonnes over the life of the wind farm, EIA 2008). The immediate environmental risk posed by the additive impacts of Bald Hills wind farm under climate change therefore exceeds its minimal material contribution to ameliorating this change. It is undeniable that potential climate change presents additive uncertainty, thereby reducing the confidence that can be attached to any prediction of environmental impacts of the Bald Hills wind farm.
Figure 7: The Ground Parrot is at considerable risk of habitat loss due to climate change. The longer-term predictability of wind farm impacts on such species is particularly limited. (Note that this photograph shows a member of the Western Australian Ground Parrot population.)
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SECTION 2: THE SCIENCE OF WIND FARM IMPACTS
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2.1 Absence of primary scientific sources from past assessments
The emerging scientific literature on the direct and indirect impacts of wind farms on animals has not been previously covered with reference to Bald Hills. There are two reasons for this: firstly, most scientific reviews of the effects of wind farms postdate the Planning Panel assessment in 2004; and secondly, that the structure of environmental assessment of this project was such that research into its potential impacts was conducted on behalf of the proponents of the development.
Below I will summarize the available scientific material on impacts of wind farms on birds and bats. The material covered is not exhaustive, however I have attempted to obtain a representative sample of all studies published in peer-reviewed journals which are indexed in scientific databases. This is the most authoritative body of evidence available for decision making, given the high standards of objectivity and independent refereeing imposed by scientific publication. In comparison, the material contained in reports by wind energy entities often has not been subjected to objective, critical review and is therefore less dependable.
Following this review, I will examine the available guidelines for assessment, modeling and monitoring of wind farm impacts on birds and bats.
2.2 Scientific literature on wind farm environmental impacts
There are multiple mechanisms by which wind farms can affect bird and bat populations (Figure 8). The majority of public attention and scientific effort have been focused on direct impacts of wind farms by direct collisions between turbine blades and flying animals. While direct mortality constitutes an unambiguous negative impact, wind farms can have many more subtle impacts on fauna through a variety of indirect effects. Here I will distinguish between these categories of impacts, for birds and bats separately.
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Figure 8: Direct and indirect effects of wind turbines on birds (adapted from Langston et al. 2006).
2.2.1 Direct impacts of wind turbines on birds Death by collision with turbine blades is the most immediate and obvious potential impact to birds. The risk of collision is typically expressed in mortalities per turbine per annum. Reported values range widely, from zero mortality to 60+/turbine/year (e.g. Kikuchi 2008). Some discrepancy in reported values is explained by methodological differences in data analysis: mortality data are collected by corpse searches, and post-hoc corrections must be applied to account for corpse detection rates and scavenging rates (Smallwood 2007). These rates are empirically determined and corrections vary accordingly; the most thorough studies have found that approximately a third of all bird impacts result in carcass detection (Smallwood and Thelander 2008). However, even after accounting for this source of variation, substantial differences exist between reported bird kill rates. The consensus among researchers is that the major determinants of mortality rates are highly site- and species-specific (Thelander et al. 2003, Langston et al. 2006, Drewitt and Langston
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2006, Drewitt and Langston 2008). However, sheer abundance of birds appears to be a poor predictor of mortality (e.g. de Lucas 2008). Similarly, the dimensions of turbines per se has not been found to have a significant effect on the risk posed to birds per turbine (Barclay et al. 2007). The risk posed by a particular site to a particular bird species is dependent on other factors such a topography, weather conditions and bird flight behaviour (Thelander et al. 2003, Hoover and Morrison 2005). Direct impacts are therefore inherently hard to predict.
Figure 9: The White-Bellied Sea Eagle is a large raptor at risk of turbine collision. What is known is that certain bird groups seem to be particularly prone to collision with turbines. A report by BirdLife International identified high collision risk for (among other groups) the order Ciconiiformes and the family Acciptridae (Langston and Pullan 2003). The former includes various heron, egret, ibis and spoonbill species found in the region surrounding Bald Hills, and the latter includes large raptors such as the Wedge-tailed Eagle and White-bellied Sea Eagle (Figure 9). However, in terms of absolute numbers of deaths, it seems that migratory passerines are also highly susceptible to turbine collisions (Kuvlesky et al. 2007). Further, given the lower detection rates of small passerine carcasses (Smallwood 2007), previously recorded mortality levels of these species may have been consistently underestimated to a greater extent than other taxa.
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2.2.2 Indirect impacts of wind turbines on birds
Other than direct mortality due to collision, wind farms may have a host of indirect deleterious effects on birds (Figure 8). These include the loss of habitat due to displacement and direct habitat loss, and reduced fitness due to impaired movement patterns when wind farms act as movement barriers (Gill et al. 1996, Langston et al. 2006, Drewitt and Langston 2006). These effects can be difficult to quantify empirically: it is often impossible to attribute reduced bird numbers around wind farms specifically to mortality or to non-lethal avoidance (Stewart et al. 2007). Very few studies have been conducted with experimental design and replication sufficient to make robust conclusions on the strength and mechanism of indirect impacts (Drewitt and Langston 2006). Some studies have detected little effect, for example geese were found to forage within 200 m of turbines in Denmark (Larsen and Madsen 2000), and no significant effect of turbines was detected on farmland bird distribution in England (Devereux et al. 2008). However, the most authoritative study to date, based on formal meta-analysis of data from 19 wind farms and various bird taxa, detected a significant, negative effect on wind farms on bird abundance (Stewart et al. 2007). This study also highlighted the many methodological problems associated with such analysis, and concluded that the evidence base for assessing the impact of wind farms on birds is very poor.
In the absence of adequate evidence, BirdLife International have highlighted the potential for indirect effects of wind turbines on certain bird groups, including the order Charadriiformes and the family Accipitridae. The former group includes many wader species present in the Bald Hills area. It is worth mentioning here that direct turbine collisions and indirect effects via turbine avoidance are inversely related (Madders and Whitfield 2006), at least during periods of good visibility. Species that give turbines wide berth are less likely to suffer direct collision, but are correspondingly more likely to suffer from the barrier-effect of wind farms. Such barriers to movement may contribute to further habitat fragmentation and decreased population connectivity, which is particularly threatening to species already under anthropogenic pressure (e.g. Pruett et al. 2009).
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2.2.3 Direct impacts of wind turbines on bats
The impact of wind turbine collision on bats is potentially catastrophic: kill rates of over 300 bats per turbine per year have been reported (e.g. Arnett et al. 2005). However, as with birds, this is highly site- and species-specific, and some wind farms have reported zero bat mortality (e.g. Schmidt et al. 2003). Several factors combine to increase the sensitivity of bats to direct impacts, over that experienced by birds. First, a fundamental difference between bats and birds is that bats appear to be actively attracted to turbine blades and support structures, to the point of landing on stationary blades and investigating or pursuing moving blades (Horn et al. 2008). Secondly, bats are physically less robust than birds in most cases, and may be killed just by being in close proximity to a moving turbine blade (Baerwald et al. 2007). The mechanism of death in such cases is lung damage caused by the air pressure differentials around turbine blades (Figure 10). Only half of wind turbine bat deaths are caused by direct collision (Baerwald et al. 2007). Thirdly, there is an exponential relationship between turbine size and bat mortality, probably because bats migrate at the height of large, modern turbines, while avian nocturnal migrants typically fly higher (Barclay et al. 2007). Finally, the temporal variability in bat deaths seems to exceed even the high levels observed among birds. It has been hypothesized that this is due to bat foraging being highly dependent on insect availability and weather conditions (Horn et al. 2008).
Little or no empirical work has been conducted on the relative susceptibility of different species of bats to turbine collision. While studies may provide break-downs of bat fatality to species level (e.g. Arnett et al. 2005, Jain et al. 2007), no studies have been able to quantify relative abundance of different bat species around turbines, which is necessary to make quantitative risk assessment. This is due to the shortcomings of various bat detection methods, for example call analysis does not allow accurate counts of individuals while infra-red imaging does not allow accurate species-level identification. As yet, there is no available method to quantify simultaneously and accurately the risk of direct collision for individual bat species (Kunz et al. 2007).
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Figure 10: (A) Internal lesion on a bat lung, showing evidence of death caused by pressure differentials surrounding a wind turbine blade. (B) Modern imaging techniques allow direct monitoring of bat interactions with turbines. A time-lapse series from a thermal infra-red camera illustrates a bat colliding with a turbine blade.
2.2.4 Indirect impacts of wind turbines on bats
While the scope for indirect impacts on bats is the same as that for birds (Figure 8), currently no data are available that suggest bats experience displacement effects or habitat loss beyond that associated with direct clearing for wind farm infrastructure. This may just be because the data are hard to obtain: work on indirect effects on birds has taken some 20 years to accumulate a weak evidence base for indirect effects, whereas the equipment required to perform such studies of bats has only become available in recent years. However, there may be a more substantial difference in the avoidance and displacement behaviour of bats, as suggested by observations of bats preferentially foraging among turbine blades (Horn et al. 2008).
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SECTION 3: ENVIRONMENTAL IMPACTS
OF BALD HILLS WIND FARM
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3.1 Low environmental impact: how confident can we be?
The scientific consensus is that the impact of wind farms on birds and bats is highly variable and difficult to predict. In a development context, the approval of a large and potentially threatening facility in an environmentally sensitive area demands a high level of confidence in the absence of significant impact. The proponent, Wind Power Pty Ltd, claimed a high level of confidence in the absence of environmental impact, based on the assessment conducted by Brett Land and Associates. The Planning Panel and the Minister for the Environment accepted this claim and approved the development. In this process, many assumptions have been made. Here, I will examine some of these assumptions:
3.1.1 Assumption I: The wind farm would pose a low risk to birds
It is not possible to quantify the level of uncertainty surrounding actual risk to birds, on the basis of the survey work conducted by Brett Lane and Associates. Attempts were made to estimate the risk of collision to birds by counting the number of birds at rotor swept height, within 100 metres of the observer. This information was then expressed as bird utilization rates, being the number of birds detected at turbine height, per hectare, per hour. The average utilization rate was reported as approximately 3 birds/ha/hour (Lane 2003). However, the extent to which this reflects the actual risk to birds is unknown:
Only birds that came within 100 metres of the observer were counted. The presence of a human will inhibit birds from approaching, therefore bird activity in the absence of humans may be much higher. The method employed by Lane is explicitly advised against for wind farm impact assessment: Vantage points are best located outside of the survey area to minimize the observers effect on bird behaviour (Band et al. 2007). The strength of this effect will differ depending on what the observer is wearing, their proximity to a vehicle, etc. These details are not provided in the method description by Lane.
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Utilization rate does not allow direct calculation of risk to birds. The probability of a bird colliding with a turbine blade is proportional to the time spent in proximity to the turbine. Utilization rate does not reveal the quantity of time birds spend at rotor swept area.
Birds were categorized as being at rotor swept area height if they were between 35 and 105 metres above the ground. There is considerable imprecision in subjective height guesstimation. Moreover, the adopted values do not necessarily correspond to the final dimensions of the turbines that may be installed at the site. It is not possible to accurately re-calculate bird utilization rates for different turbine dimensions.
Data were pooled across seasons and times of day. This masks peak activity periods that would have management implications (Figure 11).
Individual sites differed substantially, with the highest reported value being approximately 9 birds/ha/hour. This information should be used to avoid positioning turbines at high use sites. Bird use of the site is heterogeneous; a pooled average does not accurately reveal the physical distribution of risk to birds.
The failure to survey at times of highest bird activity (near dawn and dusk) means that the observed utilization rate is lower than the actual utilization rate. Lanes own data show that bird activity is low in the middle of the day (Figure 11). It is unequivocal that extending survey hours into peak activity times would increase the utilization rate recorded.
To the best of my knowledge, no scientific work has shown that pre- construction utilization rates and post-construction bird deaths are correlated.
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Figure 11: Surveys by Brett Lane and Associates (black bars) demonstrated diurnal variation in bird numbers. However, surveys were not conducted during bird activity peaks near dawn and dusk, meaning that activity in this period was unreported (grey bars). The average utilization rate reported by Lane (2003) was therefore lower than the actual average utilization rate.
3.1.2 Assumption II: The wind farm would pose a low risk to raptors
All the above points also pertain to the assessment of risk to raptors. However, as raptors are particularly vulnerable to collision with wind turbines, a higher degree of evidence is required to demonstrate confidence that impacts to raptors would be low. Such evidence is lacking:
Lanes statement that raptor abundance is low at the Bald Hills wind farm site compared to other farmland areas in southern Victoria is unsubstantiated. An independent raptor specialist, Dr Penny Olsen, commented that lack of any evidence makes this statement hard to assess and that it appears to be purely subjective (Olsen 2004).
The presence of seven raptors species at the site shows that the guild is in fact well-represented and that the risk posed by the development to raptors is real.
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Raptors avoid human presence from a much greater distance than do smaller passerines. Dr Olsen commented that a search area of 500-800 metres in radius would have been appropriate, with Lanes use of a 100 metre radius leading to underestimation of utilization rates for raptors (Olsen 2004). This is consistent with the observation methods of raptor studies, for example a requirement of a minimum 500 x 500 metre area with unrestricted view (Hoover and Morrison 2005).
The use of utilization rate as a predictor of post-turbine risk is a particularly unfounded assumption for raptors. Some raptor species are actively attracted to turbines (Thelander et al. 2003), meaning that utilization rate of an area prior to turbine installation has little or no relationship with actual raptor presence once turbines are installed.
The abundance of raptor species at a wind farms has been found to have no apparent association with the species-specific risk of collision (de Lucas et al. 2008).
3.1.3 Assumption III: The wind farm would pose a low risk to rare species
The total duration of bird surveys on the wind farm site was 64 hours (Lane 2004). The Planning Panel asked Lane to justify that this amount of survey time was adequate to document the species present at the site (Smith et al. 2004). Lane (2004) responded: additional survey effort would only have changed the bird risk profile (in terms of relative species abundance) in a very minor way and would provide no significant additional data to inform the risk assessment. This is flawed logic on which to base environmental assessment, in addition to being factually incorrect:
Lane (2004) showed species accumulation curves, and considered that these levelled off, inferring that the survey effort provided an adequate representation of bird populations at the site. In fact, there is no evidence for any of the seasonal curves attaining an asymptote (Figure 12), and in
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particular Autumn and Summer curves do not appear to be decelerating at all. Therefore, there is no direct evidence of how high the total species richness for the area might be.
Lane asserted that consistency between seasons for the most abundant species demonstrates that the avifauna in the area has been well documented. However this is in contrast to the methods used by the numerous statistical techniques that permit total species richness to be estimated from incomplete data. These typically use data on the presence and abundance of species for which only one or two individuals have been detected, in order to predict the total number of rare species in the area (Gotelli and Colwell 2001, Chao 2005). By these methods, an abundance of species at low numbers, and fluctuation among these species over time, would lead to the conclusion that many more uncommon species exist in the area but have not been detected. This is the inverse of the logic used by Lane.
The statement that the detection of more species would not add significantly to the risk assessment is also flawed. Increasing rarity of a species leads to a decreasing probability of detection of that species in an area, but also increases the significance of the loss of an individual of that species. Formal risk assessment takes into account both probability of occurrence and significance of impact. Accordingly, a greater survey effort would have detected more species, would have demonstrated a risk to these species, and would have elevated the overall risk posed by the development to birds.
Biodiversity of an area is not necessarily a good indicator of the impact that a wind farm will have in that area. For example, Altamont Pass is an unexceptional area of agricultural foothills (Thelander and Smallwood 2007), and is less species-rich than the Bald Hills area: only 36 bird species were identified there, in the course of 1,958 observation sessions of 30 minutes each (Thelander et al. 2003). However, up to 100,000 birds may have been killed by wind turbines at Altamont Pass (Thelander and Smallwood 2007).
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Figure 12 : Species accumulation curves reported by Lane (2004). None of the four curves reaches an asymptote, and in particular little or no deceleration is shown in Autumn or Summer periods. Note that this is a direct copy, including formatting inconsistencies.
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3.2 Appropriate confidence levels for predicted impacts: case studies
3.2.1 Case study I: confidence level for low impact on the Bent-wing Bat
No level of certainty can be attached to any estimate of impact of the wind farm on Bent-wing Bats, on the basis of current information. The existing survey work was manifestly inadequate to quantify the risk posed by the development to this species:
The Bent-wing Bat is listed as vulnerable under the Victorian Flora and Fauna Guarantee Act 1988.
The draft action statement for Bent-wing Bat lists wind farms as a specific threat to the future of this species (DSE 2008).
In the assessment process, the proximity of the site to a known Bent-wing Bat roost was underestimated, as was the foraging range and overall mobility of the species.
Bat mortality due to wind farms is known to be less predictable and typically higher than that experienced by birds. Therefore, survey effort should have been much higher than the two nights for which functioning bat detectors were used aloft.
Modern survey methods, such as thermal infra-red monitoring (Figure 10), allow bat activity to be quantified, but these were not used.
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The level of bat kills at the nearest wind farm, Wonthaggi, was reported to be 3.8 bats/turbine/year (Lane 2007). If this mortality level occurs at Bald Hills, there is a strong possibility of eliminating the local Bent-wing Bat population in a small number of years, if this species were to form even a moderate proportion of all bats killed. For example, if 25% of all bats killed were Bent- wings, the expected mortality of Bent-wings would be 49 per annum across 52 turbines. This equates to killing a large portion of the local population on a yearly basis and is clearly unsustainable.
The Planning Panel stated that their decision would have been different if more bats were at risk than the circa 100 reported at the Arch Rock roost by Dr Belinda Appleton (Smith et al. 2004). However, it should be pointed out that the number at the roost is expected to fluctuate considerably over the operational life of the wind farm, given the conservation status and poorly-known population biology of the species. The potential exists for Arch Rock to become a major refuge if other roosting sites are affected anthropogenically or decline naturally.
Figure 13: Colonies of Bent-wing Bats fluctuate in size and may contain thousands of individuals.
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3.2.2 Case study II: confidence level for low impact on the White-throated Needletail
The White-throated Needletail Hirunda caudacutus is a migratory species protected by the China-Australia Migratory Bird Agreement (Figure 14). Lane (2003) calculated an expected number of 18 white-throated needletails killed by the wind farm per annum. However, the Lanes calculations were double-checked by the Planning Panel, and annual mortality was corrected to 28 needletails per annum, a value that remained unaffected by the reduction in the number of turbines from 84 to 52 (Smith et al. 2004). This number was based on the passage of a flock of 80 needletails through the area at an average interval of 5 days, a frequency for which Lane admitted there was little quantitative basis. Lane (2003) then stated it is unlikely that this level of additional mortality in this species would significantly affect its population. However, no evidence is provided for this statement. In short, Lanes assessment of a low population impact was based on extrapolation from a single observation, a back-of-an-envelope calculation, and no formal population modeling. No confidence can be placed in its accuracy.
Much more data would be needed to lend Lanes estimate any real level of confidence. Methods for accurate detection and quantification of needletail flocks would need to be devised. From my own observation of a flock of 30 to 50 needletails foraging at turbine height within 2km of the proposed wind farm on the 12th March 2009, it is evident that obtaining an accurate count of such large numbers of fast moving birds is impossible. It is also worth noting that the observation was made at 6:45pm, outside the hours of the EES survey.
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Figure 14: The White-throated Needletail is a protected migratory species, occurring in large flocks over the wind farm site. This species regularly flies at the height of turbine blades.
Biosis Research was commissioned by the Department of the Environment and Heritage to report the likely level of impact of Gippsland wind farms on the Australian populations of a variety of bird species, including the White-throated Needletail (Smales and Venosta 2005). This was a qualitative desktop study and did not purport to provide detailed risk quantification. The study identified a high likelihood that a portion of the population of needletails, and that species behaviour posed a high likelihood of risk on encountering a wind farm. However, as less than 2% of the Australian population was deemed to encounter the wind farms under consideration, the overall likely level of impact was judged to be low. Clearly the assessed low likelihood of risk in this scenario was entirely contingent on an insignificant proportion of the Australian population being affected. This proportion was not quantified on an empirical basis other than casually examining the distribution of observations recorded for this species. In peak season, the majority of the Australian needletail population is distributed around the coastal fringe between
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Brisbane and Adelaide (Figure 15). While it is unlikely that more than 2% of the Australian population would interact with the specified wind farms at any one moment in time, the species is extremely mobile and there is no indication that flocks would stay in a given area for any period of time. Needletails can fly at 120 km/h and are resident in Australia for 6 months of the year (Pizzey and Knight 2007), thus an individual needletail could hypothetically cover the coastal distance between Brisbane and Adelaide more than 200 times a year, flying past each wind farm on each occasion. While this is an exaggerated example, it demonstrates that the proportion of the Australian population exposed to Gippsland wind farms may be very much greater than 2%, and the likelihood of risk to this species may be much greater than low.
In short, the confidence level for the impact of the Bald Hills wind farm on White- throated Needletails depends on an accuracy of the quantification of the number of flights made by this species through the wind farm each year. As no accurate quantification has been attempted, the confidence level for low impact is minimal.
Figure 15: The range of the White-throated Needletail during February. Sightings are densest over the coastal fringe between Brisbane and Adelaide.
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SECTION 4: CONCLUSION AND REFERENCES
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4.1 Conclusion
Having reviewed the process by which environmental assessment was conducted for the proposed Bald Hills wind farm, and the current scientific literature on the impacts of wind turbines on birds and bats, it is now possible to return to the question posed at the beginning of this report:
What is the appropriate level of confidence for the absence of significant environmental impacts arising from the Bald Hills wind farm?
The simple answer is: we cannot be at all confident in the absence of significant environmental impacts of the Bald Hills wind farm. This is due to both (i) the high degree of uncertainty surrounding the prediction of wind farm impacts generally, and (ii) the minimal level of survey work done at the wind farm site.
To obtain an adequate level of confidence would require substantial survey work to be conducted at the site. In particular, targeted surveys would need to be conducted on bats, raptors and migratory species. To achieve appropriate spatial and temporal replication, this work would require an extended time frame. Such a study should be designed in consultation with international experts in wind farm assessment, taxon specialists, and local authorities. Surveys should be conducted by independent fieldworkers, who have no material interest in the outcome of the work. The resulting data would determine whether wind farm construction should proceed, and if so, how the facility should best be managed to minimize environmental impacts.
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4.2 References
Appleton ,B. (2004) Statement on the Bald Hills wind farm application. Submitted to the Bald Hills wind farm Planning Panel.
Arnett, E.B., Erickson, W.P., Kerns, J. and Horn, J. (2005) Relationships between bats and wind turbines in Pennsylvania and West Virginia: an assessment of fatality search protocols, patterns of fatality, and behavioral interactions with wind turbines. Report prepared for the Bats and Wind Energy Cooperative, USA.
AUSWIND (2006) Best practice guidelines for implementation of wind energy projects in Australia.
Baerwald, E., DAmours, G., Klug, B. and Barclay, R. (2007) Barotrauma is a significant cause of bat fatalities at wind turbines. Current Biology 18: 695-696.
Band, W., Madders, M. and Whitfield, D.P. (2007) Developing field and analytical methods to assess avian collision risk at wind farms. In Birds and wind farms: risk assessment and mitigation. de Lucas, M., Janss, G.F.E. and Farrer, M. (Eds.) Quercus, Spain.
Barclay, R.M.R., Baerwald, E.F. and Gruver, J.C. (2007) Variation in bat and bird fatalities at wind energy facilities: assessing the effects of rotor size and tower height. Canadian Journal of Zoology 85: 381-387.
Campbell, I.G. (2006) Statement of reasons for decision under Section 133 of the Environment Protection and Biodiversity Conservation Act 1999.
Chambers, L.E., Hughes, L. and Weston, M.A. (2005) Climate change and its impact on Australias avifauna. Emu 105: 1-20.
Chao, A. (2005) Species richness estimation. Preprint document. Institute of Statistics, National Tsing Hua University, Taiwan.
de Lucas, M., Janss, G.F.E., Whitfield, D.P. and Ferrer, M. (2008) Collision fatality of raptors in wind farms does not depend on raptor abundance. Journal of Applied Ecology 45: 1695-1703.
Devereux, C.L., Denny, M.J.H. and Whittingham, M.J. (2008) Minimal effects of wind turbines on the distribution of wintering farmland birds. Journal of Applied Ecology 45: 1689-1694.
DEWHA (2009a) Species profile and threats database: Gallinago hardwickii. Department of the Environment, Water, Heritage and the Arts. Accessed 6th April 2009.
DEWHA (2009b) Species profile and threats database: Ardea modesta. Department of the Environment, Water, Heritage and the Arts. Accessed 6th April 2009.
DEWHA (2009c) Directory of important wetlands in Australia. Department of the Environment, Water, Heritage and the Arts. Accessed 20th March 2009.
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Dingle, H. (2008) Bird migration in the southern hemisphere: a review comparing continents. Emu 108: 341-359.
DSE (2008) Draft Flora and Fauna Guarantee Action Statement: Common Bent-wing Bat Miniopterus schreibersii (incorporating the Southern Bent-wing Bat Miniopterus schreibersii bassanii). Department of Sustainability and Environment.
Drewitt, A.L. and Langston, R.H.W. (2006) Assessing the impacts of wind farms on birds. Ibis 148: 29-42.
Drewitt, A.L. and Langston, R.H.W. (2008) Collision Effects of Wind-power Generators and Other Obstacles on Birds. Annals of the New York Academy of Sciences 1134: 233-266.
Dwyer P.D. (1969) Population ranges of Miniopterus Schereiberseii (Chiroptera) in south- eastern Australia. Australian Journal of Zoology 17: 665-86.
EIA (2008) International Energy Outlook 2008. Energy Information Administration, US Government.
Gill, J.P., Townsley, M. and Mudge, G.P. (1996) Review of the impacts of wind farms and other aerial structures upon birds. Scottish Natural Heritage Review, United Kingdom.
Gotelli, N.J. and Colwell, R.K. (2001) Quantifying biodiversity: procedures and pitfalls in the measurement and comparison of species richness. Ecology Letters 4: 379-391.
Griffioen, P.A. and Clarke, M.F. (2002) Large-scale bird-movement patterns evident in eastern Australian atlas data. Emu 102: 99-125.
Horn, J.W., Arnett, E.B. and Kunz, T.H. (2006) Behavioral responses of bats to operating wind turbines. Journal of Wildlife Management 72: 123-132.
Hoover, S.L. and Morrison, M.L. (2005) Behavior of Red-tailed Hawks in a wind turbine development. Journal of Wildlife Management 69: 150-159.
Huntley, B., Collingham, Y.C., Green, R.E., Hilton, G.M., Rahbek, C. and Willis, S.G. (2006) Potential impacts of climatic change upon geographical distributions of birds. Ibis 148: 8-28.
Jain, A., Kerlinger, P., Curry, R. and Slobodnik, L. (2007) Annual report for the Maple Ridge wind power project postconstruction bird and bat fatality study 2006. Report to PPM Energy and Horizon Energy and Technical Advisory Committee for the Maple Ridge Project.
Kikuchi, R. (2008) Adverse impacts of wind power generation on collision behaviour of birds and anti-predator behaviour of squirrels. Journal for Nature Conservation 16: 44-55.
Kuvlesky, W.P. et al. (2007) Wind Energy Development and Wildlife Conservation: Challenges and Opportunities. Journal of Wildlife Management 71: 2487-2498.
Kunz, T.H. et al. (2007) Assessing impacts of wind-energy development on nocturnally active birds and bats: a guidance document. Journal of Wildlife Management 71: 2249-2486.
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Langston, R.H.W., Fox, A.D. and Drewitt, A.L. (2006) Conference plenary discussion, conclusions and recommendations. Ibis 148: 210-216.
Langston, R.H.W. and Pullan, J.D. (2003) Windfarms and Birds: An analysis of the effects of windfarms on birds, and guidance on environmental assessment criteria and site selection issues. Report T-PVS/Inf (2003) 12, by Birdlife International to the Council of Europe, Bern Convention on the Conservation of European Wildlife and Natural Habitats. RSPB/Birdlife in the UK.
Lane, B. (2003) Environment Effects Statement for the Bald Hills wind farm project. Appendix 1: Flora and fauna reports.
Lane, B. (2004) Bald Hills windfarm SEES response to panel submissions. Report submitted to Planning Panels Victoria.
Lane, B. (2007) Wonthaggi wind farm bird and bat monitoring program: final report 2001-2007. Report to Wind Power Pty Ltd.
Lane, S. (2008) Wind farm a black hole for endangered eagles. http://www.abc.net.au/news/stories/2008/01/03/2130963.htm
Larsen, J.K. and Madsen, J. (2000) Effects of wind turbines and other physical elements on field utilization by pink-footed geese (Anser brachyrhynchus): A landscape perspective. Landscape Ecology 15: 755-764.
Madders, M. and Whitfield, D.P. (2006) Upland raptors and the assessment of wind farm impacts. Ibis 149: 43-56.
Newbold, A. (2006) Proposed wind farm at Bald Hills, Victoria: submission on behalf of the proponent. Submitted to the Department of Environment and Heritage.
Olsen, P. (2004) Independent review of the assessment documentation and conclusions for the Bald Hills wind farm. Report submitted to the Department of Environment and Heritage.
Pizzey, G. and Knight, F. (2007) The field guide to the birds of Australia, 8th Edition. HarperCollins, Sydney.
Pruett, C.L., Patten, M.A. and Wolfe, D.H. (2009) Its not easy being green: wind energy and a declining prairie habitat. BioScience 59: 257-262.
Schmidt, E., Piaggio, A.J., Bock, C.E. and Armstrong, D.M. (2003) National wind technology center site environmental assessment: bird and bat use and facilities. Report to the National Renewable Energy Laboratory, USA.
Smales, I. and Venosta, M. (2005) Risk level to select species listed under the EPBC Act, of collision at wind farms in Gippsland, Victoria. Report to the Department of Environment and Heritage.
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Smales, I., Muir, S., and Meredith, C. (2005) Modelled cumulative impacts on the Orange- bellied Parrot of wind farms across the species range in south-eastern Australia. Report to the Department of Environment and Heritage.
Smallwood, K.S. (2007) Estimating wind turbine-caused bird mortality. Journal of Wildlife Management 78: 2781-2791.
Smallwood, K.S. and Thelander, C. (2008) Bird mortaility in the Altamont Pass Wind Resource Area, California. Journal of Wildlife Management 72: 215-223.
Smith, R., Banon, C. and Finn, P. (2004) Bald Hills wind farm project EES, EES supplement and called-in planning permits: Panel report 24 June 2004.
Stewart, G.B., Pullin, A.S. and Coles, C.F. (2007) Poor evidence-base for assessment of windfarm impacts on birds. Environmental Conservation 34: 1-11.
Thelander , C.G. and Smallwood, K.S. (2007) The Altamont Pass Wind Resource Areas effects on birds: a case history. In Birds and wind farms: risk assessment and mitigation. de Lucas, M., Janss, G.F.E. and Farrer, M. (Eds.) Quercus, Spain.
Thelander, C.G., Smallwood, K.S. and Rugge, L. (2003) Bird risk behaviors and fatalities at the Altamont Pass Wind Resource Area. Report to the National Renewable Energy Laboratory, USA.
Turnbull, M. (2007) Statement of reasons for decision under Section 133 of the Environment Protection and Biodiversity Conservation Act 1999.
Wallis, G., Boyle, C., Lowe, K.W. and Anderson, H. (2003) Biodiverstiy Action Planning: Tarwin-Powlett Landscape Zone, Gippsland Plain Bioregion. Department of Sustainability and Environment, Victoria.
West, A. (2006) Bald Hills windfarm, revised proposal: Submission by the Orange-bellied Parrot recovery team. Submission to the Planning Panel.
Wind Power Pty Ltd (2003) Environment Effects Statement for the Bald Hills wind farm project: Main document.
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4.3 Figure credits
Cover image: original woodcut, Ohara Shoson; digital modification, Lucas Bluff
End piece: original painting, Marion Chapman
Figure 1: illustration, Lucas Bluff; satellite image, Google Earth
Figure 2: illustration, Lucas Bluff; bird photos, Michael Hopkinsii, Sergey Yeliseev, Marg K,
Julian Robinson; satellite image, Google Earth
Figure 3: photo Marg K
Figure 4: photo Julian Robinson
Figure 5: illustration, Lucas Bluff; satellite image, Google Earth
Figure 6: photo Andrew Chapman
Figure 7: photo Brent Barrett
Figure 8: flow chart adapted from Langston et al. 2006
Figure 9: photo Julian Robinson
Figure 10: (A) image from Baerwald et al. 2008; (B) image from Horn et al. 2008
Figure 11: graph adapted from Lane 2004
Figure 12: graphs from Lane 2004
Figure 13: photo Teodor Bindea
Figure 14: photo David Cook
Figure 15: image Birds Australia Atlas
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