Executive Summary

The Victorian Civil & Administrative Tribunal (VCAT) has published an interim decision in relation to a proposed wind farm development near Seymour (Cherry Tree Wind Farm v Mitchell Shire Council & Ors P2910/2012). The Tribunal has found that the proposal is acceptable on all planning grounds raised, but has deferred its final decision to enable it to consider further evidence that may become available regarding the alleged health impacts of wind turbines on nearby residents. Issues

The interim decision is of particular interest for two reasons:

  1. it considers the 2 km set back requirement for wind turbines from dwellings; and
  2. it leaves open and defers the question of possible health impacts of wind turbines.

2 km set back rule

The 2 km set back rule provides that an Application for a Planning Permit which includes a wind turbine that is within 2 kms of an existing dwelling must be accompanied by evidence of the written consent of any owner of such dwelling.

It was argued that the proposed works were prohibited as there was no consent from the owners of two dwellings under construction within 2 kms of a turbine. At the date of making the application, both dwellings had planning permits, but construction had not commenced.

The Application for a Planning Permit was amended. The date of the amendment was in question. The Tribunal was of the view that the amendment was made when the Notice to Amend an Application for a Planning Permit was lodged with the Tribunal.

The Tribunal considered whether the 2 km rule had been met at the date of the amendment. The Tribunal found that although the construction of the dwellings had commenced at that time, they were not “existing dwellings”. The buildings under construction did not meet the description of an “existing dwelling” at that date. Also they did not contain all the facilities necessary to satisfy the planning scheme definition of “dwelling”. Therefore, the application was not prohibited.

Health

The Tribunal considered that there are two questions which arise from the issue of the alleged effect of wind turbines upon the health and wellbeing of people residing close to wind farms:

  1. Is there a causal link between sound pressure emissions from wind turbines and adverse physiological health effects on nearby residents?

  2. If so, what is the incidence of health problems amongst the nearby residential population and how does that incidence vary or attenuate with distance from the wind farms?

The Tribunal found that there was agreement that further research is needed. It found itself in “a less than satisfactory evidentiary vacuum regarding the answers”. In light of the fact that the EPA of South Australia is soon to undertake a relevant study, the Tribunal decided to defer the final decision for 6 months. It has left it open for the parties to lead evidence in relation to the second question.

Other issues

Visual impact - private realm

The Tribunal found that policy seeks to encourage the establishment of wind energy facilities in appropriate locations, with the consequence that for some nearby residents, their views will change. The mere presence of turbines within a view enjoyed by residents cannot be a basis for rejection of a wind farm unless there is something uniquely different about the visual impact that will be experienced. It found that in this case there would not be unreasonable loss of amenity as a result of the presence of the wind farm in the landscape.

In light of this, it appears that in most cases the issue of visual impact will be limited to the impact on the public realm.

Noise - New Zealand Standard

In relation to noise emissions from wind farms, planning schemes refer to the New Zealand Standard NZS6808-2010, Acoustic - Wind Farm Noise as a matter to be assessed and as a decision guideline.

The Tribunal found that compliance with the Standard is an important but not necessarily determinative consideration. It does not ensure the grant of approval. However, a failure to comply with it “would present a major hurdle in the quest for approval”.

Having said that, the Tribunal accepted that this proposal met the Standard and therefore it was satisfied with respect to the issue of noise.

The Tribunal also considered the issue of what constitutes a “high amenity” area under the Standard. It considered this is an area where the planning scheme promotes a higher degree of protection of amenity related to the sound environment of the particular area.

Policy and Planning Guidelines for the Development of Wind Energy Facilities in Victoria (July 2012)-Status

The Tribunal found that as these Guidelines are included in the decision guidelines in clause 52.32-5 of planning schemes, they have greater weight than an incorporated document or reference document that is not so included.

Conclusion

It remains to be seen what will happen in relation to the issue of alleged impacts on health and wellbeing from wind turbines, including whether further evidence will be put to the Tribunal on this issue. If no further evidence becomes available within 6 months the Tribunal will make its final decision based on the evidence already before it.