Gullen Range: Time for an official inquiry

The Department of Planning claims it only found out about this in November 2013, more than a year after construction began. Some might wonder what those charged with responsibility for a major development actually do to fill in their days?

The “independent” Environmental Representative – Erwin Budde – whose job it is to ensure compliance, is anything but independent. Budde – is the Director of a consultancy that has been flat-out working for the proponent since 2007. Budde was, apparently, quite happy to sign off on all the developer’s location changes, which the Department of Planning now says are unauthorised. Notwithstanding, construction continues unabated and fans are starting to operate. Gullen Range looks like joining the growing number of wind farms that do not and will never satisfy the conditions of their planning consents – and, accordingly, will end up pocketing a fat pile of Renewable Energy Certificates that it should never have been accredited to receive. Some might call it an enormous fraud the Australian electricity consumer – we do.

Here’s Gullen Range local, David Brooks detailing just what a debacle the whole disaster is.

Fact Sheet: Gullen Range Wind Farm: turbine re-locations
David Brooks
18 March 2014

1. The Gullen Range Wind Farm was approved by the NSW Minister for Planning (Kristina Keneally) in 2009. It was re-approved by the NSW Land & Environment Court in 2010. The proponent is Gullen Range Wind Farm Pty Ltd (GRWF). GRWF was originally owned by the developer Epuron. Epuron sold GRWF to the Chinese multi-national Goldwind in early 2011.
2. Construction began around September 2012. All the infrastructure of the wind farm (roads, hardstands, turbine footings, the sub-station) has been built, and so far about 50 of the 73 turbines have been erected.
3. The proponent has declared that 69 of the 73 turbines have changed their location from the approved locations. The distances involved range from 1 metre to 187 metres, the average distance being 42 metres. (These figures come from the Micrositing Consistency Review p. 5, available on the website of the wind farm: www.gullenrangewindfarm.com > The Project > Project Documents.)
4. Therefore, on the face of it, these changes of location violate condition 1.5 of the Project Approval, which removes the ability of the proponent to move turbines up to 250 metres without further assessment and approval, according to the Environmental Planning and Assessment Act 1979, i.e. by submitting a modification application to the Minister for Planning. (The Project Approval is available, together with the other official documents concerning the project, on the website of the Department of Planning and Infrastructure (DoPI): www.planning.nsw.gov.au.)
5. The proponent maintains that these changes of location are only “minor” amendments, and that therefore it does not need to submit a modification application. (See article in Goulburn Post, 3.3.14; confirmed in phone conversation between David Brooks and Ben Bateman, Project Manager, 4.3.14.)
6. However, now that the Department of Planning is threatening to take the developer to the Land & Environment Court (see DoPI’s media release, 28.2.14), the developer has backed away from this claim, and is now preparing a modification application in order to get retrospective approval for this violation of the Conditions of Consent. (phone conversation between David Brooks and Ben Bateman, 4.3.14)
7. Since about September 2012 the developer has built the entire system of roads, hardstands, and turbine footings, incorporating the changed and prohibited turbine locations. The developer has also erected about 50 turbines (at last count). Many of those turbines will have been erected in illegal locations. All this has occurred without the proponent seeking further assessment and approval, according to condition 1.5 of the Project Approval.
8. In addition, many of these turbines have already been operating and, according to the wind farm’s website, have been generating electricity. If that electricity has been fed into the grid, the illegally located turbines will have been earning Renewable Energy Certificates illegally.
9. It is remarkable that the Department of Planning was not aware that 69 turbine locations had been moved until November, 2013 (e-mail from Azmeena Kelly, Manager for Compliance, DoPI to David Brooks, 3.3.14). By then, all the roads, hardstands and turbine footings had been built, and about 30 turbines had been erected. Since last November about another twenty turbines have been erected.
10. The Department has not ordered a halt to construction of all turbines whose locations have changed. The Department has only ordered a halt to construction of turbines that have moved closer to (some) homes. But this ignores the fact that some turbines will have moved away from some homes and closer to other homes. The Department, apparently, has not taken that into account.
11. It has taken the Department of Planning from November 2013 to the end of February 2014 to decide what to do in relation to this matter. The media release announcing the violation of the Project Approval is dated 28.2.14.
12. The Department has not, so far as we know, ordered the illegally erected turbines not to operate, so as not to earn Renewable Energy Certificates illegally.
13. This whole situation is therefore a colossal violation of the Conditions of Consent on the part of the proponent, and a colossal failure of planning on the part of the Department of Planning.
14.  The proponent had until 5.3.14, to respond to the Department. It seems that the proponent will now offer to submit a modification application; in which case, the Department may drop its threat to take the proponent to the Land & Environment Court.
15.  It would appear that the Department may approve the modification application, and so give retrospective legitimacy to the violation of the Project Approval. This is unsatisfactory, as the changes of turbine location should be investigated and penalised, and not legitimised.
16. There is a further complication to be considered, concerning the role and appointment of Erwin Budde as the independent Environmental Representative to the project.
17. One of the responsibilities of the independent Environmental Representative to the project is to advise the proponent on the proponent’s compliance obligations (see condition 7.1 of the Project Approval). To this end the Environmental Representative, nominated by the proponent, but appointed by the Director-General of DoPI, needs to be genuinely independent. But, Mr Budde cannot be considered independent.
18. Mr Budde is a Director of ngh environmental, the consultancy that prepared the Environmental Assessment (2008) for the wind farm, and the Submissions Report (2008), and that has been working for the proponent since 2007 (see www.nghenvironmental.com.au > About Us). The recent Micrositing Consistency Review, which argues (fallaciously) that the turbine re-locations are consistent with the Project Approval is the latest production of ngh environmental.
19. As a Director of ngh environmental, Mr Budde cannot be considered genuinely independent, as he has an obvious conflict of interest. His company has been working to promote the interests of the proponent since 2007.
20. If it seems incredible that Mr Budde should have been appointed to the role of independent Environmental Representative, the explanation involves the writing of condition 7.1 of the Project Approval by the Department of Planning. Condition 7.1 makes the only constraint on the selection of a suitable candidate the criterion that the individual should be “independent of the design, construction and operation personnel”.
21. I suggest that the above wording in condition 7.1 is improper, if not corrupt, since it seems to have been designed to allow the appointment of someone like Mr Budde, despite the obvious conflict of interest. Even if Mr Budde did not co-author the Environmental Assessment or the Submissions Report, he is nonetheless a Director of ngh environmental, and ngh environmental has been working for the proponent since 2007.
22. The proponent has argued that it does not need to submit a modification application (see Micrositing Consistency Review, pp. 1, 20-21). Part of its argument to this effect is that the turbine re-locations have been approved by Erwin Budde, the “independent” Environmental Representative (Micrositing Consistency Review, p. 1, and Document Verification page).
23.  For the Department of Planning to write condition 7.1 in this way seems to be at least improper, since it seems to facilitate an instance of public maladministration by allowing the appointment of someone with a conflict of interest to a role that requires independence.
24. However, the writing of condition 7.1 may also be corrupt for the following reason. The main reason for the turbine re-locations, according to the proponent, is to maximise electricity production by maximising wind yield and minimising wake loss (see Appendix B of the Micrositing Consistency Review). This means maximising revenue. Over the lifetime of the wind farm the new locations may mean an increase in revenue of many tens of millions of dollars. With so much money at stake in what appears to be a violation of the Project Approval, the participation of the proponent, of ngh environmental, of Mr Budde, and of the Department of Planning in the appointment of Mr Budde must raise the question of corruption, especially given Mr Budde’s approval of the unauthorised turbine re-locations.
25. Therefore, what should happen now is not a modification application by the proponent, and its approval by the Department. Rather, all work on the wind farm should be halted, and the operation of all turbines should cease, while the wind farm is investigated by an independent public inquiry. This should be at least a Judicial Commission. If the Minister for Planning does not institute such an inquiry, then an inquiry by ICAC, and also by the NSW Ombudsman would seem to be appropriate.