Victorian Planning Department involved in Waubra Wind Farm Non-Compliance Cover Up

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The unseemly links between the wind industry and Victoria’s Department of Planning (DPCD) were laid bare by Senator John “Marshall” Madigan back in December last year (see our post here). The relationship has seen the DPCD do the wind industry’s bidding at every turn: lying about non-compliance with noise conditions of planning consents and, when caught out, backsliding and obfuscating to cover it up.

One classic example is the report by Heggies Pty Ltd (now called SLR Acoustic Consultants) – who were commissioned by the DPCD back in October, 2010  to prepare an independent technical review of the noise compliance report for Acciona’s Waubra wind farm. STT has it on very good authority that the Heggies report concludes that Acciona’s Waubra wind farm does not and can never comply with the noise conditions of its planning consent.

As part of Marshall Madigan’s hunt to round up REC fraudsters, he’s been trying to get hold of the Heggies’ report: back in September last year the Pyrenees Shire Council – which has it – refused to hand it over; and the DPCD has, likewise, resisted efforts by Senator Madigan’s office to get the report made public, including Freedom of Information requests. What’s that you say about open and transparent government?

The Victorian government knows full well that the Waubra wind does not and can never comply with the noise conditions of its planning consent: it has the Heggies report which confirms it; a document (paid for by taxpayers) which it steadfastly refuses to make public. Funny about that.

The Waubra wind farm – which is run by Spanish outfit, Acciona – has drawn something like 1,400 noise complaints and has driven 11 farming families from homes that neighbour its operation, since it started operating over 5 years ago in July 2009.

Acciona has purchased, at least, 8 properties belonging to its numerous victims – making damn sure that the unwilling vendors all signed bullet-proof “gag” clauses – that prevent them from ever talking about the “sale” (see our post here). Trish Godfrey is just one tragic example (see this article and our posts here and here).

These forced purchases have been effectively funded by Australian power consumers by way of mandated power consumer subsidies (ie Renewable Energy Certificates) which wind power outfits receive and which are tacked on top of all Australian power bills (see our post here). Acciona has, so far, received over $85 million in RECs (a Federal tax on all Australian electricity consumers).

The Victorian Planning Minister, Matthew Guy runs hot and cold on non-compliance at Waubra (see our post here).

That Acciona is in breach of its planning consent at Waubra (and has been for over 5 years since it began operation) was practically confirmed by the Minister back on 18 April 2013, as wind industry “front man” Green MP, Greg Barber breached the first rule of cross examination, by asking a question, when he didn’t know for certain what answer he’d get. A “Rookie error”, if ever there was one.

Posing “Dorothy Dixers” for his wind industry masters, Barber scored a monumental “own goal” as he popped up this little poser to the Planning Minister:

I have asked [Guy] about this a number of times, there has been a lot of speculation that Waubra is non-compliant. In fact a motion was passed through the Senate which every coalition senator voted for. Contained within the substance of the motion was the statement that Waubra was non-compliant.

Following on from that logic, the senators up there – coalition and Democratic Labor Party – took the view that Waubra should have had its revenues through the form of renewable energy certificates taken off it. Would the minister like to tell us now, today, whether Waubra is compliant with the conditions of its permit?

Hon. MJ GUY (Minister for Planning) – “I am advised that Waubra has not had its compliance signed off.”

Since then, the Minister appears keen to let his Department create an escape route for Acciona – not only by sitting on the Heggies report – but by relying on irrelevant (non-existent) noise “standards”; ignoring actual noise testing; ignoring its own advice; shifting the goal posts; and otherwise making it up as it goes along.

None of which has impressed Samantha Stepnell – another of Acciona’s Waubra victims: for a taste of what the Stepnell family has had to suffer, see our post here. Samantha has launched into the DPCD with this letter attacking the Department’s failure to enforce the noise conditions attached to Acciona’s planning consent; and its internally inconsistent and woefully inadequate response to its responsibilities to Acciona’s victims.

DPCD

RE: Noise testing at 67 Lobbs Road, Waubra

I refer to the attached correspondence between Minister Guy and Acciona dated 15 January, 2014. In this letter, the Minister advises Acciona’s Andrew Thomson:

Following review of the latest information and when read in conjunction with all other relevant information I have formed the view that there are no noise compliance issues concerning the Stepnell property in Lobbs Road, Glenbrae.

The suggestion that there are ‘no noise compliance issues’ at our Lobbs Road property is inconsistent with the view of several expert acousticians that have undertaken noise testing at our property. Alarmingly, it also contradicts earlier advice from your department.

In his 15.01.14 letter (attached), Minister Guy refers to a previous letter dated 15 September 2011 (attached) in which he had informed Mr Brett Wickham of Acciona that testing should occur as follows:

Testing is to be carried out for the 10 houses listed in my letter dated 15 September 2011, namely houses H16, H26, H41, H49, H64, H68, H76, H85, H153 and H285.

Our property at Lobbs Road, Glenbrae is, in fact, “H16.” Accordingly, we expect that noise compliance testing will still occur at our property, as recommended several years earlier and consistent with current instructions from the Minister and his department to do so.

SAC ASSESSMENT

We are deeply concerned that the Minister has justified his acceptance of Acciona’s controversial, ‘subjective’ testing methodology by relying on advice from an unauthorised, unpublished draft document which he improperly refers to as “the EPA guidelines.” We are aware that the incomplete draft was prepared in close collaboration with DPCD. We reiterate that in its flawed draft form, the draft document was not approved for publication by the EPA and that the SAC methodology Minister Guy agreed to was never endorsed by the EPA. It is false and misleading for the Minister to suggest otherwise.

At any rate, Section 10 of the draft wind farm policy for the assessment of SACs refers exclusively to developments bound by NZS 6808:2010. Contrastingly, the Waubra Wind Farm permits provide that compliance must be assessed in accordance with NZ6806:1998. Even if the DPCD/EPA’s unpublished draft wind farm guideline was a credible and reliable resource, the methodology proposed for the assessment of SACs (that EPA was not prepared to publish), relates to NZS 6808:2010 and cannot retrospectively apply to the assessment of noise at Waubra Wind Farm.

Further, acoustic experts, the EPA and officers of your department have made a number of site inspections of the Waubra Wind Farm. DPCD has raised concern about the ‘likely presence of SACs at some properties,’ (including ours), recognising a number of possible causes including mechanical noise, tonal noise and Amplitude Modulation. Your department’s many observations indicate that subjective assessment has already occurred – and on multiple occasions. Moreover, the draft guidelines that the Minister has relied upon to approve Acciona’s SAC methodology reaffirm that where SACs have been identified the noise standard requires a 5 dBA penalty and 35 dBA limit.

I note that in BMIN011632 the Minister received expert advice that acknowledged presence of SACs: ‘the department considers that operating the wind farm in noise management mode will not enable the facility to meet the applicable 35dBA limit.’

Non-compliance at Waubra Wind Farm was found in 2010, confirmed again in 2011 and at the advice of DPCD commissioned acoustic experts, even in the unlikely event that Acciona has operated the facility in a noise optimised mode, the department doesn’t expect that this would enable the wind farm to meet compliance with the appropriate standard.

Condition 16* of the permits specifies that on-off shut down testing and decommissioning are the next logical, necessary steps along the compliance pathway. We are perplexed as to why the Minister and DTPLI would spend the last several years avoiding the enforcement of the permit and fail to officially determine known non-compliance. Instead, the Minister has allowed Acciona to continue to operate the facility without adequate regulation; fully aware that the operator is in breach of permit and operating the power station in excess of the prescribed noise standard, outside compliance and with flagrant disregard for the community it continues to harm.

UNRESOLVED COMPLAINTS

As recently as 14 July 2014 we registered a complaint with the wind farm operator (receipt attached) which evidences our continuing frustration that excessive noise; including noise with special audible characteristics, remains a source of inescapable nuisance that interrupts sleep, adversely affects our amenity, wellbeing and the ability to savour the quiet enjoyment of our Lobbs Road property.

We remain frustrated that operational noise problems have still not been corrected and nor have our concerns been ameliorated despite the wind farm having operated (without meeting compliance) for five long years already. Under the Planning and Environment Act, 1987, the wind farm’s planning permits are supposed to protect the surrounding community from harm. This cannot occur if conditions are never enforced.

We note that the ‘Responsible’ Authority has now approved the operator’s proposed testing methodology which:

a) Is not specified in the Waubra Wind Farm planning permits;

b) Refers to unpublished draft guidelines which offer advice about the assessment of SACs in permits bound by a different standard;

c) Allows absurd ‘subjective’ assessment methods previously recognised (by the same Minister) to be “insufficient.”

d) And specifically avoids testing at our Lobbs Road property where both the operator and the department know that compliance cannot be achieved.

There have been suggestions within the community that such a backflip might reflect gross incompetence or complicity. Either way, it is anticipated that the Minister’s approval of this completely unacceptable yet ‘approved’ testing methodology will appease no one other than the wind farm operator.

QUESTIONS ARISING

1. Why has the Minister never formally determined the repeatedly recognised non-compliance at the Waubra Wind Farm facility?

2. Why has he consistently refused to enforce compliance with conditions attached to planning consent and with that, abdicated himself of his responsibility to regulate the Waubra Wind Farm?

3. Why has the Minister not enforced the permits as condition 16* instructs?

4. Why has the Minister for Planning consistently failed the Waubra community by refusing to fulfil his responsibilities under the Victorian Planning and Environment Act?

5. What evidence does the Minister hold that would suggest that the Waubra Wind Farm has ever been operated in noise optimisation mode?

6. Why has the Minister disregarded the recommendation of his department and expert acoustic consultants who recommended that the testing of SACs be assessed objectively?

7. How does the Minister justify the decision to approve Acciona’s ‘subjective’ testing methodology when he recognises that this method is ‘insufficient?’

8. To justify his decision, why has the Minister quoted Section 10 of an EPA guideline that simply does not exist.

9. Why does the ‘approved’ methodology preclude the testing of full spectrum and low frequency noise?

10. How did the Minister come to improperly determine that there are ‘no noise compliance issues’ at our Lobbs Road property?

11. What is the ‘latest information’ that the Minister has relied on to form this opinion and in your view, what constitutes ‘relevant information?’

12. What evidence does the Minister or the DTPLI hold to support this position?

Noise assessment reports and data under condition 19 of the permits and by state law, form part of the Waubra Wind Farm’s planning permits. We strongly disagree with the Minister’s decision and intend to pursue our legal options to review this matter. We therefore require full access to all ‘relevant’ documents and acoustic reports that the Minister considered to form his view to better understand the Minister’s decision making process which resulted in the adoption of the approved assessment methodology and the discrimination.

As it was suggested to us recently, it would indeed appear that ‘the facts are being tailored to suit the required outcome: not the other way around.’

*16. Where condition 14 is found to have been breached, the Minister for Planning shall notify the wind energy facility operator, with a request that steps be taken to ascertain the relevant meteorological circumstances at the time of breach and to noise optimise the operation of the relevant turbines in such circumstances. 

If there is a further breach in similar circumstances, the Minister for Planning shall notify the wind energy facility operator, with a request to selectively shut down the operation of the relevant turbine or turbines in those circumstances. 

In circumstances where optimisation or selective shutdown routines have been requested but not reasonably implemented, or have been implemented but have not prevented further instances of recorded breach, the relevant turbine or turbines will be required to be decommissioned and removed.

I await your urgent response.

Sincerely,

Samantha Stepnell