In a unanimous decision published in November 2019, the Full Court of the South Australian Supreme Court has upheld the March 2018 decision of the South Australian Environment, Resources and Development Court to grant planning approval for Tilt Renewables’ Palmer Wind Farm project. The Mid Murray Council previously approved the project in December 2015.
In upholding the decision of the ERD Court, the Full Court has confirmed that anecdotal claims of health impacts by witnesses residing near existing wind farms, in the absence of both medical validation as to causation, and proof of equivalence, should be given little weight in the planning assessment of a proposed wind farm.
The Palmer Wind Farm Project
Tilt Renewables Australia Pty Ltd (Tilt Renewables) was granted planning approval by the Mid Murray Council under the Development Act 1993 (SA) (known as “development plan consent”) in December 2015 for the Palmer Wind Farm project.
The planning approval allows the construction and operation of a wind farm incorporating up to 103 wind turbines, together with ancillary infrastructure.
The Palmer Wind Farm project site is located east of the Mount Lofty Ranges in South Australia, covering an area that extends over approximately 30 kilometres in a north-south direction, between the townships of Mount Pleasant and Sanderston.
The decision of the Mid Murray Council was appealed by third parties to the South Australian Environment, Resources and Development Court (ERD Court). Following a hearing that ran for almost four weeks in March and April 2017, the full bench of the ERD Court upheld the planning approval for the project.
One of the appellants from the ERD Court matter then appealed the decision of the ERD Court to the Supreme Court. The Full Court of the Supreme Court heard the appeal in February 2019.
The decision of the Full Court (Stirling McGregor v Tilt Renewables Australia Pty Ltd & Ors  SASCFC 142) was handed down on 15 November 2019.
The Grounds Raised Before the Supreme Court
Given that appeals to the Supreme Court are generally limited to appeals on the grounds of errors of law (rather than appeals against findings of fact), the grounds of appeal put to the Supreme Court were based on alleged procedural errors by the ERD Court in the way it assessed the evidence and considered the appellants’ submissions in making its findings following the 2017 hearing.
Most notably, it was alleged that:
- the ERD Court did not give proper consideration to health claims made by a number of witnesses who live near two unrelated wind farms located in the mid-north of South Australia and south-west Victoria (the health witnesses); and
- the ERD Court was wrong to find that there was no credible evidentiary basis to suggest that noise from the proposed development would unreasonably interfere with other land uses.
The Decision of the Full Court of the Supreme Court
The Full Court did not accept any of the grounds of appeal, finding that the ERD Court acted correctly in each respect.
In its judgment, written by Chief Justice Kourakis, the Full Court specifically found that:
- the ERD Court correctly gave very little weight to the subjective perceptions and accounts of the health witnesses;
- even though the health witnesses (who provided affidavits but were not called to appear in court) often attributed their sensations and moods to the wind farms operating in their localities, their statements were not admissible or were of little weight to the extent that they asserted that the wind farms were the physiological cause of their symptoms;
- the claims of the health witnesses could only show temporal connection, which was not susceptible to objective scrutiny.
The Full Court emphasised that:
- no medical evidence was put to the ERD Court that either confirmed the evidence and timing of the symptoms claimed by the health witnesses, or excluded other causes of the symptoms (so as to prove that the symptoms were caused by operation of the wind farms);
- no expert epidemiological evidence was put to the ERD Court that demonstrated that the similarity in the health witnesses’ symptoms was statistically significant when compared to other sections of the community; and
- it was not proven (nor was any evidence put forward to prove) that there was sufficient equivalence between the existing wind farms operating near the residences of the health witnesses and the proposed development, so as to demonstrate that the symptoms experienced by the health witnesses would also be experienced by others as a result of the operation of the proposed wind farm.
In addressing the use of anecdotal evidence more generally, the Full Court quoted extensively from the expert statement of Professor Gary Wittert, who had been called by Tilt Renewables to give evidence during the ERD Court hearing regarding alleged health impacts of wind farms. This evidence included the various difficulties associated with reliance on anecdotes, which can be affected by cognitive bias, subjective validation, misinterpretation and misuse to draw causal links where none exists.
The ERD Court Decision Stands
As a result of the Full Court’s decision, the decision of the ERD Court to uphold the grant of the planning approval for the Palmer Wind Farm has been confirmed.
In addition, the various other findings made by the ERD Court (which were not challenged before the Supreme Court) are unaffected.
These findings, which will be relevant to proposed wind farm projects around Australia, include:
Shadow flicker levels in the Draft National Wind Farm Development Guidelines (30 hours per year theoretical, 10 hours per year actual) are the appropriate standard for assessing acceptable shadow flicker impact.
Blade glint is not a problem for modern turbines with blades coated in non-reflective paint.
The likelihood of injury or damage occurring from blade throw is extremely remote.
The ignition risk posed by a wind farm will not be any greater than many land uses in the Rural Zone, including agricultural activities.
- The network of tracks of the wind farm will improve access to the area for fire service ground crews.
- The proposed wind farm is acceptable in relation to its impact on firefighting capacity and would not prevent aerial firefighting, although it may change routes and tactics to some extent.
Risks to raptors could be adequately mitigated with turbine setbacks of
- 500m from Wedge Tailed Eagle nests
- 1000m from Peregrine Falcon nests
Our Role with Tilt Renewables
Finlaysons is honoured to have supported Tilt Renewables throughout the development of the Palmer Wind Farm project, including in respect of the assessment of the planning application, through the ERD Court and through the Supreme Court appeal.
This Alert is intended as general information only. It does not purport to be comprehensive advice or legal advice. Readers must seek professional advice before acting in relation to these matters.