Hearings Committee

MINUTES

 

Minutes of an ordinary meeting of the Hearings Committee held in the Edinburgh Room, Municipal Chambers, The Octagon, Dunedin, commencing Tuesday 17 May 2016, at 9.00 am

 

PRESENT

 

Commissioner

Colin Weatherall

 

 

IN ATTENDANCE

John Sule (Senior Planner/Committee Advisor), Darryl Sycamore (Processing Officer), Carlo Bell (Environmental Health Officer) and Barry Knox (Landscape Architect).

 

Governance Support Officer      Wendy Collard

 

 

RESOURCE CONSENT APPLICATION LUC 2015-469, 147 CHURCH ROAD, MERTON

 

The Commissioner considered an application for the erection and operation of three wind turbines at 147 Church Road, Merton.

 

The Commissioner was required to make a thorough assessment of the application using the statutory framework of the Resource Management Act 1991.

 

The applicant was represented by:

 

Bridget Irving (Solicitor, Gallaway Cook Allan)

Campbell Hodgson (Solicitor, Gallaway Cook Allan)

Scott Willis (on behalf of Blueskin Energy Limited and Blueskin Resilient Communities Trust)

Virginia Toy (Geotechnical Engineer

Stephen Chiles (Acoustics Engineer)

John Craig (Avifauna and Ecologist)

Di Lucas (Landscape Architect)

Mike Moore (Landscape Architect)

Ben Farrell (Consultant Planner)

Janet Stephenson

 

The Commissioner advised that he had conducted a site visit and had looked at the site from various locations within the Blueskin Bay area.

 

There were 28 submitters present at the hearing.

 

Geraldine Tait

Jeremy Head (Landscape Architect on behalf of Geraldine Tait)

Alasdair Morrison

Andy Barratt

Tracey Scurr

Denis Albert

Graeme Bennett

Jenny McDonald

Simon Ryan and Jennifer Ashby

Lyndon and Kirsty Clayton

Karen Price and Steven Mutch (Solicitors on behalf of S Ryan, J Ashby and L & K Clayton)

Stephen Brown (Landscape Architect for S Ryan, J Ashby and L & K Clayton)

Rachel McClellan (Ecologist for S Ryan, J Ashby and L & K Clayton)

Stephen Packer

Jenny Rodgers

Mark Brown

Sally Brown

Thomas Cardy and Jamie Pickford

Metiria Turei MP

Paul Jouanides

Brenda and John Thom

Derek Onley

Gareth Hughes MP

Rachel Ozanne

Frederika Schmaltz

Andrew Deaker

Kat Achterberg

John Kaiser

Ben Wooliscroft

 

Procedural Issues

 

In response to a questions regarding the evidence and appearance from Dr Janet Stephenson for the applicant and her submission in support of the application, Ms Irving advised that Dr Stevenson’s evidence should not be treated as expert evidence prepared under the Environment Court’s code of conduct for expert witnesses and the Commissioner should adjust the weight given to the evidence accordingly.

 

Late Submissions

 

Commissioner Weatherall advised that he had issued a minute prior to the hearing which noted that he had accepted the late submissions from the following:

 

·                Murray Cumming

·                Alan Greenall

·                Eve Jolly

·                New Zealand Windfarm Energy Association

·                John Thom

 

Presentation of the Planner’s Report

 

The Planning Officer (Darryl Sycamore) spoke to a summary of his report, and provided an overview of the proposal before commenting on the notification of the application and the submissions received. 

 

Mr Sycamore advised that a resource consent had been sought to erect and operate three wind turbines on Porteous Hill which was a remnant volcano that formed part of the Kilmog series of land features.  He commented that the proposal was to establish a small scale wind-farm on the site.

 

Mr Sycamore commented that in 2013 a resource consent had been granted to erect and maintain a wind-monitoring mast as part of a feasibility study to identify a suitable site.  He commented that three turbines, which would produce approximately 800-900kW and with a maximum height of 125m above ground level proposed.  He advised that work would include the extension of the access road, excavation of the tower foundations, erection and commissioning of the turbines.  Connection would be directly to the 33kV OtagoNet Distribution Network, being the National Grid.  Mr Sycamore commented that the total weight for transportation would be approximately 117 tons and that the route assessment confirmed that the road and bridges were sufficiently dimensioned to convey the load with minor works required to broaden the sweeping corners on Porteous Road itself.

 

Mr Sycamore advised that the expert evidence which had been received following the release of the Section 42A report had addressed some of the information gaps he had identified in the report.  He commented that some submitters had provided expert landscape evidence which outlined a less positive view of the adverse effects of the proposed turbines on landscape and rural amenity values. 

 

Mr Sycamore advised that he would provide his recommendation to grant or decline the application to his right of reply following all the evidence.

 

The Applicant’s Presentation

 

Bridget Irving (Legal Counsel) spoke to her legal submissions and outlined the main effects issues to be considered and the evidence that had been provided by Blueskin Energy through the evidence pre-circulation process.

 

Ms Irving commented on the statutory assessment process and in relation to the Section 104D gateway test she advised that Mr Sycamore and Mr Farrell for the applicant had concluded that the proposal passed the gateway test. 

 

Ms Irving commented on the major issues that she felt that the Commissioner needed to consider under Section 104 and included landscape, amenity, noise, ecological aeronautical, geotechnical, traffic effects and positive effects as important considerations.  In relation to landscape Ms Irving advised that she felt that as the turbines were located outside the landscape overlay in the operative plan that the objectives and policies of the landscape section of the operative plan were not a relevant consideration.  Ms Irving also identified that the permitted baseline was of little relevance for the application.

 

In relation to the provisions of the proposed second generation plan (2GP) Ms Irving commented on the objectives and policies of the 2GP that she felt should be given more weight than would normally be the case at this early stage because the operative plan did not contemplate wind turbines and because the 2GP provisions had been drafted to give effect to the National Policy Statement for Renewable Energy Generation (NPSREG).

 

Ms Irving acknowledged the differences of views in relation to the relevance of the NZ Coastal Policy Statement and commented that the activities were occurring at a location that was not part of the coastal environment and therefore the policy statement was not a relevant consideration.

 

Ms Irving concluded by noting that the proposal was unique with its genesis in a community that was concerned about the impacts of climate change.  She commented on the positive effects of the proposal.  Ms Irving commented that there were some adverse local effects but argued that these were not significant and outweighed by the benefits.  She considered that the proposal was a community response to climate change that should be enabled by granting the consent.

 

 

Scott Willis (Project Manager for Blueskin Energy Limited and Manager of the Blueskin Resilient Communities Trust) spoke to his pre-circulated evidence and commented that he was the Project Manager for Blueskin Energy Limited and the president of the Blueskin Resilience Communities Trust.

 

 

Mr Willis provided background to the structure of the Trust and its membership. He commented on the projects the Trust had been involved in.  In relation to the wind farm proposal he also provided a chronology of the projects progression and he commented on the community consultation that had been undertaken by the Trust.

 

In relation to community benefit Mr Willis advised that once the turbines were up and running it was estimated that up to $100,000 per annum would be provided to the Trust to provide services to the Community.  Mr Willis provided a background to how the community has been kept informed in relation to the project which included the Blueskin A&P shows, social media, and a regular article in Blueskin News. 

 

Mr Willis responded to some matters that had been raised in the evidence of submitters.  He commented that there could not be more than three turbines on the site and that the prevailing wind was not in the direction of the Ryan/Ashby property.  Mr Willis advised that they were seeking some flexibility in location of the turbines to allow for movement within 30m of the proposed GPS locations; however these movements would not result in the turbines being shifted any closer to neighbouring dwellings.

 

The Commissioner resolved:

 

"That the meeting be adjourned until 10.50 am."

 

The meeting adjourned at 10.30 am and reconvened at 10.48 am.

 

Mr Willis responded to a question regarding the consideration on alternative of location and outlined in general terms the consideration of other sites on Double Hill Road, Mopanui Ridge, Heyward Point White Road and Mt Kettle.

 

Mr Willis advised that their lease was for 20 years with 4 rights of renewal and he commented that the life of the structure could be up to 100 years but the turbines would likely need to be regularly replaced over that time period.

 

Mr Willis commented on the options for connection to the supply grid and noted that the electrons produced by the turbines would be consumed locally.  He advised that the Trust's initial ambition was to provide retail access to the community but this was not able to be achieved.

 

Dr Janet Stephenson spoke to her pre-circulated evidence and commented that her role was to discuss the wider picture for consultation on wind farms and community response. 

 

Dr Stephenson commented on the first piece of research work on wind farms was commissioned by the Electricity Commission.  She provided a background on the research that had been undertaken on why wind farms were high on the list for renewable energy but received most opposing submissions.  Dr Stephenson acknowledged that the RMA did not state that applications had to include consultation but there were benefits to undertaking consultation.

 

Dr Stephenson commented that the value of best practice consultation had been researched and what early engagement looked like.  She advised that the research indicated that people who did not submit still have a view and that resource consent submissions did not capture all of a community’s views.

 

Dr Stephenson advised that the overall findings was that there was support for the project although there were some concerns such as lifespan of the project, feasibility, environmental effects of the turbines, benefits to the community.  She commented that Porteous Hill was identified as the preferred site following the survey and that she felt that most the concerns had been addressed. 

 

Dr Stephenson commented that it was her view that the consultation had exceeded the best practices model and in her view the consultation process undertaken by BRCT had been excellent. 

 

Dr Virginia Toy (Geologist) spoke to her pre-circulated evidence and commented on her background with Waitati and her qualifications as a geologist.  Dr Toy advised that in January 2016 she had undertaken some initial geotechnical investigation and looked at the areas to be used for foundations.  She commented that she was not qualified to undertake a geotechnical assessment for the site as she was not an engineer however had been assisting with the information gathering for a geotechnical assessment.  Dr Toy commented on the test pits dug at the site of the foundations in April 2016 and she noted that included in evidence was a draft assessment of the site by Mark Walrond from Geosolve.  She advised that it was her view that the site appeared generally suitable for establishment of stable foundations for the turbines but that BRCT should engage a geotechnical expert to complete a geotechnical investigation on the specific design of foundations.

 

The Commissioner resolved:

 

”That the meeting be adjourned until 12.10 pm.

 

The meeting adjourned from 12.05 and reconvened at 12.10 pm.

 

Dr Stephen Chiles spoke to his evidence and commented that he had used the appropriate New Zealand standard for wind farm noise for his assessment work.  Dr Chiles advised that Mr Hunt the peer reviewer had agreed with him on this aspect and the scenarios used for prediction work he had undertaken.  He commented that a noise limit of L9040dBA and below was acceptable under the standard although it would be audible in the rural environment.  Dr Chiles advised that noise levels could be reduced by controlled output and commented that reducing the output of the closest turbine by 200KW would achieve the necessary reduction to ensure compliance with the noise limit which could be controlled by a computer. 

 

Dr Chiles commented on the concerns raised in submissions regarding noise and advised that he has been involved in a number of consents such as the Mount Stuart wind farm.  He commented that the prediction data was reliable and that scientific evidence showed that the claims regarding wind farm noise in relation to infrasound were not sustained.

 

Dr Chiles commented on the peer review that had been completed by Council and the concerns that been raised regarding the absence of background noise monitoring.  He advised that he agreed with Mr Hunt that this assessment needed to be completed but he argued that the background monitoring could be done once consent was granted and the conditions proposed by Dr Chiles would ensure this was done prior to construction.  Dr Chiles commented on proposed conditions in the section 42A report and suggested that these could be improved and that had included 5 conditions to this effect.  He responded to questions from the Commissioner on his assessment.

 

The Commissioner resolved:

 

"That the meeting be adjourned until 1.35 pm."

 

The meeting adjourned at 12.40 pm and reconvened at 1.35 pm.

 

Dr John Craig (Avifauna and Ecologist) spoke to his ecological evidence and confirmed that he had visited the site and was aware that that the lights on the turbine would be on all the time.  Dr Craig advised that his role was for the birds and to discuss the value of data collection.  He commented that birds were frequently used by people to raise issues with wind farms in particular in the northern hemisphere.  Dr Craig advised that due to the temperatures in the continent there were a lot of bird migrations which did not happen in the same way in NZ. 


 

Dr Craig commented on the data collection and the models which were used to predict bird losses and provided examples of other wind farm sites and the results of the modelling work in particular the significant variances with modelling work.  He advised that he considered that in this case the effect on the birds for the project would be minimal.  Dr Craig commented that he couldn’t say that there won’t be kills but considered the rare species at Blueskin Bay would not likely climb 400 metres over Porteous Hill as they were more likely to travel up the valleys on either side.  He noted that all human structures such as houses, roads, and power lines killed birds.  In its full context the kills from these structures were minor compared to pests such as stouts and cats.  Dr Craig commented that in his opinion, if additional pest control was undertaken in Blueskin Bay this would result in a much better outcome for the birds than the removal of the wind turbines.  He would therefore recommend that some of the profits be put back into pest control.

 

Di Lucas (Landscape Architect) spoke to her pre-circulated evidence and provided clarification on some areas where inaccuracies had been identified by the landscape evidence provided on behalf of submitters.  Ms Lucas commented that the turbines would have high visibility however this did not equate to negative environmental effects.  She noted that mitigation had been built into the proposal in that 3 turbines were aesthetically a good number.  Ms Lucas advised that only minimal earthworks were required and the form of the towers was good in terms of the visual aesthetic.   She commented that the turbines would not alter the landform and the towers were not in full frontal view of residences.  Ms Lucas responded to questions on the divergence in opinion from the landscape architects and what additional mitigation was possible.  She noted that in terms of colour there could be a graded colouring toward the base of the turbines.  Ms Lucas suggested that the lights were to be shielded and did not need to be flashing (this was identified as incorrect in the right of reply as flashing lights were required by the CAA).

 

Mike Moore (Landscape Architect) spoke to his pre-circulated evidence and provided a background to his involvement as a peer reviewer of Ms Lucas' landscape assessment.  He advised that he largely agreed with the position of Ms Lucas on landscape matters following his own assessment and took the opportunity to correct Page 33 of his evidence as he now accepted that all three turbines would be visible from 22 Pryde Road.

 

Mr Moore advised that in relation to paragraph 33 of the evidence provided by Stephen Brown where Mr Brown discussed the visibility of the turbines from 22 and 90 Pryde Road, he felt that the wholly negative impact noted by Mr Brown was overstated as people could have different reactions to turbines.  In terms of the impact on the rural environment Mr Moore considered that turbines could be part of the landscape and they could be accepted in a rural environment and that their impact was not necessarily negative.  In terms of the effects of the turbines on the closest neighbours he concluded that they were moderate to significant.

 

Ben Farrell (Consultant Planner) spoke to his evidence and in line with the correction made by Mr Moore he also corrected paragraph 61 of his evidence which related to the visibility of the turbines from Pryde Road properties.  Mr Farrell outlined the scope of his evidence and commented that the largest point of variance in relation to his evidence and Mr Sycamore's was the weight given to the renewable energy under the National Policy Statement for Renewable Electricity Generation 2011 (NPSREG).  He had given more weight to the NPSREG. 

 

In response to questions Mr Farrell confirmed that he considered effects on closest residents were more than minor but not significant and as a consequence an assessment of alternative sites was not required.  The adverse effects were not so significant to warrant refusal in his opinion.

 

Mr Farrell commented on the number of wind farm consents and the number of conditions that had been placed on them.  He advised that his opinion was that the specific design of conditions was important.  Mr Farrell commented that he did not think that conditions should be cut and pasted from other wind farm consent and that they should be site specific. 

 

The Commissioner resolved:

 

"That the meeting be adjourned until 3.25 pm."

 

The meeting adjourned from 3.06 pm and reconvened at 3.23 pm.

 

Submitters

 

Ross Johnston spoke to his submission in support of the proposal.  Mr Johnston commented that he had lived in Purakanui since 1976 and was a member of the BRCT.  He advised that from his perspective the application ticked a number of boxes as it responded to global climate change, through targets which achieved 95% renewable energy nationally and to alignment with the local spatial plan.  He noted he was a “yes in his backyard” person if a proposal was of benefit to him and the community.  Mr Johnston considered that the local community would benefit from the project.

 

Denis Albert tabled and spoke to his written submission in opposition to the proposal.  Mr Albert provided a description of his property on Double Hill Road in relation to the proposal.  He commented that he considered the proposal to be an industrial activity as this was the most appropriate classification for the activity. 

 

Mr Albert argued that there was no need for the wind farm as there was no shortage of renewable supply in the South Island and there were approvals at other locations to meet future demand.  He commented that the proposal was for a 0.02% increase in generating capacity in a part of the country that did not need extra capacity.  Mr Albert noted that the South Island electricity supply was 100% renewable.  He discussed the importance of landscape values and argued that the proposal was not consistent with these values and was unsustainable.

 

Mr Albert commented on the community support for the proposal arguing that it was abundantly clear that there was no widespread support for either the BRCT or the wind turbine project.  He advised that support was often from parties who did not live in Blueskin Bay and who would not be able to see the turbines whereas the opposing submissions largely comprised of people who could see the turbines from their own homes. 

 

He considered the proposal would result in a major irreparable and unsustainable degeneration of the landscape values of Blueskin Bay.  Mr Albert commented that the effects were major in his view.  He provided a critique of the modelling that was undertaken for the noise assessment by the applicant and he considered the assessment to be inadequate.  Mr Albert considered the noise issues needed to be fully understood prior to granting consent.  He drew the Commissioner’s attention to the issues with the Te Rere wind farm in Palmerston North.

 

Mr Albert also commented on the minimum setbacks, fire hazards, lack of information on the transmission of power from the turbines to the grid, reverse sensitivity and issues associated with the access.  In terms of ecology he considered that the information provided on bird strike was inadequate and noted that should consent be granted that tight decommissioning conditions were required.

    

He commented on the application of 2GP objectives and policies in relation to wind farms and he considered there needed to be greater consideration to the increased landscape overlay which would include the location of the turbines.  If weight being given to one section then the other should be given.

 

Mr Albert noted the inadequacies in the consent had made submitting difficult and he requested that the Council decline the resource consent application. 

 

Graeme Bennett spoke in opposition to the proposal and he identified that he was a landowner that owned the whole face from Doctors Point to Waitati School. 

 

In terms of the reduction of greenhouse gases Mr Bennett commented that he considered the carbon displacement issue was a non-event.  He advised that he owned forestry at Taieri Mouth and they helped sequester 2500 tonne per year significantly more than the proposal.  Mr Bennett commented that he owned the site at Mopanui which was initially tested by a student.  He identified that there was so much support for BRCT at the beginning but the proposal had changed significantly.  It was initially intended to directly benefit the community which was the reason for the support.  When it was discovered that it was not possible it then changed from something that would be owned by the community for use by the community at a cheaper rate with profits back to the community.  He commented that a lot of support was lost when the proposal changed.  Mr Bennett requested that the Commissioner look at what resilience meant. 

 

He commented that he had land that might be used for residential development and the spatial plan indicated that this was an area that was suitable for residential development.  The proposed turbines would be directly in the view of these sites and he did not think that the proposal would be a good bed mate.  Mr Bennett noted that he agreed with Mr Albert in regards to the people surveyed and commented that if you asked the right question to the right person you would get the right answer.  He had never been included in any survey and he had lived there for 13 years.  He noted that he would support the proposal if it supported him directly by providing power directly into his property but he could not see the benefits of the proposed approach. 

 

The meeting adjourned at 4.25 pm and reconvened on Wednesday 18 May 2016 at 9.00 am in the Edinburgh Room, Municipal Chambers.

 

Jenny McDonald spoke to her submission in opposition to the proposal and identified that that she lived at Mount Cargill Road.  She advised that she was also speaking on behalf of P J Clarke as well.  Ms McDonald commented on the consultation process and noted that they felt that it did not reflect the views of the community.  Ms McDonald' advised that her other concern was the location of Porteous Hill as the site for the turbines due to the wind factor and the amount of money that would be generated from the project.  She commented that both she and P J Clarke had been members of the Trust and now considered that the project would divide the community not join it.

 

Jeremy Head (Landscape Architect for Geraldine Tait) spoke to his pre-circulated landscape evidence on behalf of Geraldine Tait.  In relation to the applicant’s landscape evidence Mr Head commented that he considered the site was not appropriate for the proposal whether the turbines were 90m or 125m in height.

 

Mr Head commented that he had observed that there would be a large viewing audience looking at the site from SH1 to Doctors Point and beyond and he considered that dismissing landscape impacts on the basis that some people might like it and some might not was not good enough.  He commented that he thought that the risk was too high.  He considered the wider landscape effects of the turbines would be more than minor and due to the large audience the risk was too great.  Mr Head commented that if it was an environment where transitory landscape views where the main impact then it might be different as people would be passing through and it would not have a long effect.

 

In response to questions regarding his assessment of the receiving environment he noted that he had identified areas where most people were living, located, travelling through and see the proposal and where the visual effects would be more than minor.  He acknowledged that there were other areas that would view the site however he had disregarded them due to the land being rural land. 

 

Mr Head commented on Ms Lucas's comments regarding the site and the reasons it was appropriate for the proposed turbines and her answer regarding the ease of access to the site was not a reason in his view.  He considered that structures such as this would be more appropriate in a different landscape

 

Mr Head commented on the earthworks for the site and the report from Fulton Hogan on the works necessary to allow vehicles up the road lacked detail.  In the past he had seen applications for wind farms where effort had been put into specifying the roading requirements.  He noted that there were six corners that would be required to be remodelled to allow access.  There would be significant earthworks, cutting and removal of vegetation that had not been appropriately detailed.

 

Mr Head agreed in principle that 3 turbines were a good number and three blades was better than two but he did not consider that the use of three blades turbines was mitigation and he did not agree with Ms Lucas on the minor changes to the silhouette of the hill.  Mr Head commented on the word "elegance" and that not everyone would consider them elegant.  He noted that the Sydney Harbour Bridge would be considered elegant and he provided his reasons for this.  In respect of the turbines he felt that they should be considered ugly, large spikey things. 

 

In response to a question, Mr Head commented that in his opinion the visual simulations that montages was not real.  A photograph was coloured pixels on paper and not reality.  When you stand in the landscape the eye would settle on things that were out of place or out of character, the point of interest.  In his opinion that was what the turbines would be, an unusual element.

 

Andrew Barratt tabled and spoke in opposition to the proposal.  He outlined his experience with the local Community Board and he identified that his property would not be directly affected by the proposed development. 

 

Mr Barratt provided a critique of the Planners Section 42A report and contended that:

 

·                The turbines more be more symbolic than of real benefit in terms of the DCC energy policy;

·                The turbines could be located in a number of other sites;

·                The community benefits were questionable.

 

Mr Barratt commented that he considered that the turbines would be a constant source of distress to residents in the immediate vicinity and that the precedent set would be undesirable.  If the application was declined he urged the DCC to work with the applicant to find a location with a better wind resource, convenient connection to the grid, less landscape sensitivity and sufficient distance from residents.

 

He noted that in his view it was the wrong deed for the right reasons.

 

The Commissioner resolved:

 

"That the meeting be adjourned until 10.50 am."

 

The meeting adjourned at 10.27 am and reconvened at 10.49 am.

 

Karen Price & Steven Mutch (Solicitors for S Ryan, J Ashby and L & K Clayton) spoke to written legal submissions on behalf of their clients.  Ms Price advised that briefs of expert evidence, in addition to the submission from their clients, would be provided by Stephen Brown a landscape expert and Dr Rachel McClellan avifauna expert.

 

Ms Price commented that the Pryde Road residents they were representing were the most affected residents with respect to the key environmental effects.  It was identified that the key legal issues were in relation to:

 

·                Whether the proposal passed the section 104D gateways test;

·                If the proposal passed the gateways test whether the proposal was appropriate in relation to its adverse effects and the planning framework;

·                The adequacy of information provided by the applicant.

 

Ms Price commented that the Pryde Road neighbours considered the proposal should be declined as the proposal failed both limbs of the Section 104D gateways test.  She advised that should the Commissioner decide that the proposal passed the gateways test then it was argued that the application should be declined as the landscape/amenity effects would be so significant they would not be outweighed by the proposal’s modest positive effects.  In addition, it was also argued that the adverse effects were not able to be mitigated and that the proposal was inconsistent with the applicable planning framework.

 

The legal submissions addressed the key effects issues and referenced legal cases which supported a position that the effects were more than minor.  An assessment of the objectives and policies was undertaken referencing the views of experts and relevant case law.  The assessment argued that the proposal was contrary to objectives and policies of the operative and proposed plans.

 

In the event the Commissioner found that the gateways test were met Section 104 and Part 2 matters were discussed.  The lack of information on a number of matters including noise, shadow flicker, ecology, geotechnical/hydrological was highlighted as a concern.  The legal submissions noted that positive effects were uncertain and it was concluded the adverse effects outweighed any positive effects such that the proposal was inappropriate and should be declined.

 

In terms of the new confidential financial information provided by the applicant Ms Price requested the Commissioner make this available to submitters noting that if financial information was truly sensitive, then again it could be readily protected via confidentiality obligations.  

 

Further concerns were raised in relation to issues raised in day one of the hearing in terms of the lack of information provided by the applicant.  Ms Price raised the issue of carbon accounting and raised further concerns regarding the inadequacy of the noise assessment.

 

The Commissioner indicated that he would take legal advice on the confidential information and would not read it until he had considered this advice.

 

Simon Ryan, Jennifer Ashby, Lyndon Clayton and Kirsty Clayton jointly spoke to their detailed written submissions in opposition to the proposal.  They covered a broad range of issues which included:

 

·                Visual and amenity effects

·                Noise effects

·                Ecological effects

·                Shadow flicker and glare

·                Radio communication effects

·                Geotechnical/hydrological issues

·                Impacts on existing farming activities

·                Uncertain/overstated community benefits

·                Decommissioning

·                Lapse period

·                Uncertainties with the proposal and inadequacies of the AEE

·                Economic issues

·                The potential for environmental creep

·                Precedent and Plan Integrity issues

 

The Commissioner resolved:

"That the meeting be adjourned until 1.15 pm."

The meeting adjourned at 12.35 and reconvened at 1.18 pm.

 

Ben Wooliscroft spoke to his submission in support of the proposal.  He commented that he thought that the proposal was a generous living asset which the University were able to research.  Mr Wooliscroft advised that he considered renewable energy was good for everyone and in particular the Blueskin Community.  He noted that it was great opportunity for this community, University and Dunedin.

 

Stephen Packer spoke in support of the proposal and noted that he did not live in Blueskin Bay but had family that did.  Mr Packer advised that he feared for his grandchildren in respect to climate change.  He commented that he considered the proposal sent a message that communities need to do something in provision for renewable energy sources.  Mr Packer considered that the landscape on Porteous Hill had been changed already due to farming and forestry activity.  He submitted that there was a beauty in wind farms and they could be considered a link from the land to the skyline.  Mr Packer commented that he felt that we had damaged the environment beyond repair.  .

 

Tracey Scurr tabled and spoke to her submission on behalf of Geoff Scurr Contracting Ltd (GSCL).  Ms Scurr advised that she was a director of the company that operated a quarry located on Pryde Road which had been in operation for 18 years and provided gravel and rock primary for local roading use.   Ms Scurr agreed with several of the experts that presented evidence indicating that some residents were affected in a greater than minor way. 

 

Ms Scurr advised that GSCL had been kept well informed of the project's progress by the applicants and the detail and timing of the project was not a surprise to GSCL.  In relation to noise she commented that the environment on Pryde Road was relatively quiet.  While the quarry did result in some noise within noise limits, there were long periods of weeks or even months when the noise level was very low. 

 

Ms Scurr commented that she was satisfied by evidence from Dr Craig that the effects on bird life would be minimal and she supported pest control.  She saw the visual impact in relation to the quarry as a positive but she acknowledged that other property owners in the area had different opinions.

 

Ms Scurr identified increased tourist activity and surprise viewing effects as potential effects that had not been covered in the evidence.  She requested that these matters be considered and should the consent be granted she requested that any consent conditions imposed be made clear and specific.

 

Jenny Rodgers spoke to her submission in support of the proposal and identified that she lived in Waitati.  She commented that she had lived there for two years and she considered that there had been good community engagement in the local newsletter which includes information about the project including ways to contact BRCT.

 

Ms Rogers was supportive and excited by the project as it is a physical structure that shows the community doing work to improve resilience in the community. 


 

 

Stephen Brown (Landscape Architect for S Ryan, J Ashby and L & K Clayton) spoke to his pre-circulated evidence and tabled summary of his evidence.  He advised that the adverse effects would be significant on the properties at 22 & 90 Pryde Road and the proposal was contrary to the policy frameworks under the operative and proposed District plans.  In response to questions, Mr Brown advised that he had worked on 12 wind farm projects and was unable to think of any properties that would be closer to turbines than those located on Pryde Road.  He commented that he was involved with another project with a dwelling that was 700m away and the electricity generator purchased the home in that case. 

 

In terms of visibility from the dwellings of the closet residents Mr Brown commented that for most of the dwellings you would not see them from within the dwelling.  However, you would see then when moving around the house, coming and going and that was without regard to the working environment.  He advised that he considered the landscape was more of an issue at 90 Pryde Road and he noted that at this location the noise of the turbines would be audible and that this would make you aware of the presence of the turbines. 

 

Rachel McClellan (Ecologist for S Ryan, J Ashby and L & K Clayton) spoke to her pre-circulated evidence and provided a summary of key points in her evidence.  In that summary she observed that the expert assessments by the applicant’s experts that effects were not significant or insignificant were not supported by any robust data.  Mc McClellan advised that she had identified that 14 species of nationally threatened or At Risk Species in addition to Tuis and Kereru that had the potential to interact with the wind farm.  Given that lack of data Ms McClellan argued that potential effects that could be locally or regionally significant cannot be ruled out.  On that basis she considered the application should be declined as:

 

·                There was insufficient evidence to determine that potential effects would be acceptable;

·                Available evidence provided a reasonable basis to conclude that adverse avifauna effects could be significant

 

If consent was to be granted Ms McClellan recommended that conditions be imposed to secure detailed pre construction data collection/analysis and that conditions provide for meaningful modification if material issues were encountered.

 

The Commissioner resolved:

 

"That the meeting be adjourned until 3.15 pm."

 

The meeting adjourned at 2.59 pm and reconvened at 3.15 pm.

 

Simon Ryan, Jennifer Ashby, Lyndon Clayton and Kirsty Clayton continued their joint submission and requested that the application should be declined due to the significance of the adverse effects of the proposal.  They had no confidence that proposed conditions of consent would mitigate the adverse effects.  They also considered that the information supplied by the applicant was inadequate and this meant the Commissioner did not have sufficient information to make a decision on the application.

 

Mark Brown tabled and spoke to his written submission in opposition to the proposal.  In relation to landscape Mr Brown disputed the view of landscape architects for the applicant and considered the proposal was not suited to the character of Blueskin Bay or the wider coastline.

 

Mr Brown was critical of consultation noting that while there was a lot of initial discussion on a community owned wind cluster there were no community discussions on the specific proposal for Porteous Hill.  He considered there was no clear direction from the community to proceed with the Porteous Hill project.

 

 

 

Mr Brown commented that he did not consider the project was financially viable and he was concerned about who would be responsible if the project fails either during or after construction.  He noted that there was lack of details on transmission of power from the site.

 

Jamie Pickford spoke to the submission from himself and Thomas Cardy in opposition of the proposal.  Mr Pickford commented that they lived at 129 Pryde Road.  He commented that he considered that there were few gains or benefits to the community from the proposal and that weight should be given to the submitters who resided close to the site.  He advised that Porteous Hill was an important part of their life and provided the process that they had been in during the resource consent for the nearby quarry.  Mr Pickford outlined the activities on the site they enjoyed and he provided a background to the reasons for living in Pryde Road which included the rural aspects of the site.  He commented that from their site they were able to see the existing testing pole no matter what the weather and they were concerned about the dominance of the much large proposed turbines.  Mr Pickford commented that he considered that the adverse effects on the landscape would be significant and the landscape would be changed forever. 

 

Mr Pickford commented on the noise impact noting that at their site it was very quiet as it was not affected by noise from the state highway.  He commented that there was no specific evidence in the application on the effect of noise would be on them.  He observed that their property was their piece of paradise and that they lived with all the windows and doors open.  He argued that the proposal would have a significant adverse effect on them and should be declined. 

 

On behalf of Generation Zero, Jenny Coatham spoke to their submission in support of the proposal.  Ms Coatham provided a background to the vision of Generation Zero and commented that the proposal was exactly what their organisation support.  She commented that she believed that the proposal was following local and central government focus on renewable energy and the reduction of carbon emissions.

 

Metiria Turei spoke to her submission in support of the proposal.  Ms Turei commented that she was a resident of Waitati and could see Porteous Hill from her home.  She submitted that she was in full support of the proposal and requested that the consent be granted.

 

Ms Turei commented that community engagement by the Trust had been extensive in this case and she referred to the advice from Janet Stephenson who had detailed this in her evidence.  She advised that the Trust had contributed to the community through the insulation of homes to make them warmer that had improved the health and wellbeing of residents.  Ms Turei commented that BRCT was a community organisation not a corporate entity that contributed to the community and helped with solutions for the causes using local resources.  She also commented on the comments and attacks on the applicant and was disappointed by these. 

 

Ms Turei acknowledged the residents in Pryde Road and their genuine concerns.  She commented that however their concerns in her view were not enough to decline consent.  She considered the negative effects on these properties were outweighed by the positive effects.

 

In terms of the landscape effects Ms Turei commented that she agreed with the evidence from Di Lucas.  She commented that Ms Lucas was a respected landscape Architect and her advice that it was a good location was significant.  Ms Turei acknowledged that the landscape would be altered however did not mean that this would be a negative effect.  She commented that the introduction of the turbines would mean the local environment would have a new character and in her view it was an addition to the environment and not a negative one.  Ms Turei noted that the new character would reflect the evolving character of the community. 

 

Ms Turei commented that renewable energy was the future and that communities wanted to be independent from each other and resilient.  She noted that despite submission that arguing that the contributions of this facility were too small to be valuable she argued that every little bit helps and the proposal was a valuable first strep.

 

Paul Jouanides provided a background to where he lived in relation to the proposal and commented on the landscape evidence regarding the elegance of the turbines noting that he did not agree with this view.  Mr Jouanides commented that he considered that a positive view of the effective on landscape was bogus.  He advised that they were located in the bottom of a small valley and that he did not wish to see lights from the turbines on the top of the hill.  If the project was to go ahead he considered the development would conflict with the environment and he raised concerns about the loss of bird life.

 

Mr Jouanides outlined his concerns about the limited number of community who would benefit from the project when compared to the destruction of people's lifestyles.  The proposal did not increase resilience in his view and he raised concerns about precedent.  He commented that he had concerns for the value of his property and felt that if granted he should be compensated.  Mr Jouanides commented that he did not see that this proposal was a positive thing for him or his family.

 

The Commissioner resolved:

 

"That the meeting be adjourned until Thursday, 19 May 2016 at 9.00 am."

 

The meeting adjourned at 5.15 pm and reconvened on Thursday 19 May 2016 at 9.00 am in the Edinburgh Room, Municipal Chambers.

 

Brenda Thom (on behalf of John Thom) spoke to his submission in opposition to the proposal.  Brenda commented that John was an affected landowner and his farm was adjacent to and approximately 300 to 400 metres from the site. 

 

Ms Thom outlined that Mr Thom intended to subdivide his farm land and build a retirement home on one of the sites.  The approximate location was indicated on the map and it was noted that decision would be made following the decisions on the proposed 2GP.  Ms Thom noted that Mr Thom was concerned about the effect of the turbines and was of the view that the turbine site was inappropriate for the development.  In terms of the effects of the turbines she noted that he was on the land day in and day out and it would have an adverse effect on him and other users of the land as other community groups were allowed to use the land for recreational use.  If consent was granted then Mr Thom would not build his retirement home and would not subdivide.  She commented that the lapse period at 10 years was also identified as being too long. 

 

Ms Thom commented that proposal was not accepted by the residents in the area and that the three turbines would adversely affect his enjoyment of the land.  She also noted it could impact on his farming activity and he would not be able to top dress that section of his farm close to the turbines.  Ms Thom noted that he feels the night pollution from the lights had not been adequately covered in the application and concerns were also raised regarding noise, glare and shadow flicker. 

 

Ms Thom raised concerns regarding the bird life and the evidence regarding this from the applicant.  It was noted that birdlife had increased as a result of the Ecosanctuary and there was remnant bush on the property.  Porteous Hill is visible from all parts of the wider area and when Mr Thom built his home he had to adhere to a number of conditions such as a landscape plan and specific colours.  Mr Thom feels that this proposal is inconsistent with the Council's approach to landscape in other situations.  It was noted that if there had been three turbines there when he purchased the property then he would never have purchased it.

 

Ms Thom commented that she felt that the effects were more than minor and were huge.  People who were most affected by the proposal should be listened too and the application should be refused.

 

Derek Onley tabled and spoke to his submission in opposition to the proposal.  Mr Onley commented that he had been a resident of Waitati for 20 years and he outlined his qualifications and experience in ornithology.  He provided a background to the Council’s 2007 Biodiversity Strategy and the decline of biodiversity over time.

 

Mr Onley advised that he agreed with the peer review by Golder Associates who concluded that the applicant’s assessment was inadequate.  He commented that we needed to take heed of the loss of biodiversity in the UK.  Mr Onley advised that he supported the evidence of Rachel McClellan; however he differed on the species at risk which discounted the loss of more common species setting up a process for slow decline which would not be noticed.  He provided comments on specific bird movements, numbers and behaviours from his own local observations in the Karitane to Blueskin district.  He noted that these did show that local movement of birds over land did occur and could occur over the wind farm site.

 

Mr Onley advised that he did not agree with the assessment that alternative sites had been seriously considered.  He also questioned the viability of the project questioning whether the proposal would generate enough income to cover the costs of environmental monitoring and mitigation.  He commented that similar greenhouse gas reductions could be achieved by planting less than 100ha of forest.  He discussed a British example of a wind turbine application for the Royal Society for the Protection of Birds.  Mr Onley advised that the project involved 2 years of biological study over the full range of flora and fauna before deciding that the effects would be less than minor.  This was different to the applicants approach to the ecological assessment and John Craig's unscientific and unsupported evidence.

 

The Commissioner resolved:

 

"That the meeting be adjourned until 10.30 am."

 

The meeting adjourned at 10.10 am and reconvened at 10.20 pm.

 

Gareth Hughes joined the meeting by Skype and commented that his submission was in support of the application.  He advised that he was the energy spokesperson for the Green Party.  Mr Hughes commented that he had been on-site and had been following the project.  He provided a background to the use of wind energy and that he felt that the effects of this proposal were no more than minor.  He outlined a significant untapped wind resource in New Zealand. 

 

Mr Hughes commented on the NPSREG and changes promoted by consumers.  He commented on the community benefits of the applicant’s proposal and that he was supportive of the Trust's community engagement and he considered the visual impact was subjective.  He identified that in his view the effects of the proposal were no more than minor.  He noted that internationally large wind farms overseas were located off-shore; however, there were often small ones on land.  He discussed bird strike and the environmental impact and Dr Craig’s evidence that the ecological effects would be minimal.  Mr Hughes noted the Government’s commitment to the reduction of carbon emissions.

 

Sally Brown tabled and spoke to her written submission in opposition to the proposal.  Ms Brown advised that she was born and raised in Waitati and was a trained Landscape Architect.


 

Ms Brown commented that there was a strong community at Blueskin Bay but the wind farm proposal was creating tension and she did not agree that BRCT was as connected to the community as they had stated.  She considered that calling it a community project was incorrect.  Ms Brown advised that there were a lot or residents at a public meeting in November 2015 organised by the community and it was clear from that meeting that that community was not well-informed about the project.

 

In terms of the impact on landscape Ms Brown commented that the sensitivity of the local landscapes warranted protection under the District Plan.  She identified Porteous Hill as an important visual backdrop within the coastal landscape. 

 

Ms Brown commented that she considered that the wind farm would alter the landscape indefinitely setting a precedent for further structures to be established on local hill within the costal landscape.  Ms Brown agreed with the expert evidence from Stephen Brown and Jeremy Head that the proposal would have adverse landscape effects and she commented that in no way were the structures an elegant and meaningful addition to the landscape. 

 

Rachel Ozanne spoke to her written submission in opposition to the proposal.  She commented that her family live on Porteous Hill about 1.26 km from the site. Ms Ozanne advised that she considered they would be impacted greatly by the proposal.  Ms Ozanne referred to a 2005 Council landscape review in the rural area and she commented on the correspondence that they received from Council on the review reading from the report.  Ms Ozanne commented that she had significant concerns given the landscape review by Council in regards to the land feature of Porteous Hill.  She noted that she did not agree with the two landscape architects for the applicants. 

 

Ms Ozanne commented on light pollution and that one of the joys of living on Porteous Road was that the night skies were dark and the night sky would be destroyed.  She advised that they did not have curtains on that side of the hill due to the night sky. 

 

Ms Ozanne commented on her concerns which included noise; the community engagement; and potential disturbance to ground water given their reliance on springs for their water.

 

Ms Ozanne disagreed that the proposal was developed as a community initiative and she disagreed with the arguments put forward by Blueskin Energy to support this position.  She noted that the electricity generated was going to grid and not the community.  Ms Ozanne commented that she considered that local residents would have their lives and lifestyle ruined for the sake of the national grid.

 

Ms Ozanne requested that the consent be refused as the turbines would be detrimental to local community health and wellbeing. 

 

Frederika Schmaltz spoke to her submission and outlined her experience with living in Europe and wind farms.  Ms Schmaltz advised that she considered that silence without background noise was important and should be valued.  She commented that she was concerned about the noise generated by the turbines and the impacts including those on the closest residents and from her house. 

 

Andrew Deaker spoke on behalf of Initial Volco Trust in support of the proposal.  He commented that he lived in the area and he provided a background to his property and the view of the turbines on the landscape.  He commented that the Trust owned a large block of conservation land on Mount Cargill and he identified that the Trust had an active history of support for a number of projects.  Mr Deaker commented that the trust supported Orokonui and other ecology projects which included the BRCT resilience projects.  He felt that profits from the wind farms operation would be a great to fund the development of other projects. 

 

Mr Deaker commented that he saw the proposal as win/win/win and that he would enjoy a view of the turbines.  He advised that he felt that the proposal would bring benefits to the community and that his children would have a better outcome.

 

Alasdair Morrison tabled and spoke to his submission in opposition to the proposal.  Mr Morrison commented that he had been a resident of Waitati for 31 years and his dwelling looked directly out onto Porteous Hill.  He commented that he was not aware of any territorial authority that had granted resource consent for construction of a wind farm in full view of so many residential dwellings.

 

Mr Morrison outlined his concerns about the project not being completed or going broke and the costs of removal of redundant turbines.  He considered the proposal was incomplete and lacked sufficient detail.   

 

He requested that the Commissioner decline the application and provided a summary of his reasons.

 

Kat Achtenberg advised that she worked as the Projects Coordinator for BRCT but submitted as a private individual.  Ms Achtenberg commented that the proposal was intended to help a community and that BRCT was a charitable trust who sought to improve Blueskin Bay community.  Ms Achtenberg provided a background to NZ's energy supply and the need for renewable sources.  She referred the Parliamentary Commissioner for the Environment’s report regarding future-proofing of New Zealand’s energy supply. 

 

John Kaiser spoke in support of the proposal and advised that he had lived in Waitati for 23 years.  Mr Kaiser commented on the benefits that the proposal would bring to the local community.

 

The Commissioner resolved:

 

"That the meeting be adjourned until 1.15 pm."

 

The meeting adjourned from 12.33 pm to 1.15 pm.

 

Geraldine Tait tabled and spoke to her submissions in opposition.  Ms Tait commented on her concerns which included the wider impacts of the proposal on the Blueskin Bay community; impacts on landscape and amenity values and for the families living closest to the turbines.  Ms Tait advised that she was a founding member of BRCT and supported its original direction but had resigned due to concerns about the direction the Trust appeared to be headed. 

 

In relation to community issues Ms Tait commented that the proposal was not a community project or facility and that BCRT was only a small special interest group.  Ms Tait questioned the motivation of the trust and disputed the community need for the funding from the wind farms operation.

 

In relation to energy issues Ms Tait advised that she agreed with Mr Albert’s submission and noted that the tiny amount of power produced in Blueskin Bay would not make the slightest difference to coal use. 

 

Ms Tait discussed her concerns noise noting the peculiarities of noise propagation in the area. She also raised concerns about disturbance to groundwater and local springs.

 

Ms Tait commented on the increasing importance of tourism noting that tourists were attracted to landscapes and wildlife.  She commented that the natural values of the area were worth protecting if not for the locals but for economic reasons.  She also noted that the sea was well used recreationally and this recreation use would be detrimentally impacted by the turbines.

 

Ms Tait expressed concerns about financial management also noting that there was the prospect of the consent to be sold to another party.  She also outlined her concerns regarding undesirable precedent.

 

She requested that the resource consent application be declined in its entirety. 

 

The Commissioner advised that two letters had been received from parties who no longer wished to attend the hearing.  He commented that the letters received from the New Zealand Transport Agency and Otago Natural History Trust Board were considered and noted.

 

The Commissioner also advised that a late submission from Kirstie McKinnon had been received on the 19 May 2016.

 

The Commissioner resolved

 

"That the late submissions from Kirstie McKinnon would not be accepted under Section 37 of the Resource Management Act."

 

 

Council Officers Evidence

 

The Landscape Architect (Barry Knox) spoke to the tabled summary of his landscape evidence and noted the areas of agreement and the points of difference that he felt the Commissioner should give consideration to.  He commented that there was:

 

·                Agreement that Porteous Hill was not an outstanding landscape under s6(a) or 6(b)

·                Agreement regarding general landscape descriptions. Porteous Hill was a significant feature, if not outstanding.

·                Agreement that the wind turbines here would be highly visible.

·                Agreement that if turbines were to be there, a cluster is probably better than turbines being too dispersed. (More turbines would produce greater clutter). 

·                Agreement in terms of aesthetics, if they were to be there, a group of 3 turbines is good.

In relation to the divergence in positions Mr Knox commented that the Landscape Architects Mr Brown and Mr Head for the submitters had a negative view of the turbines at the proposed location because the landscape and rural amenity impacts were significant in their view.  Ms Lucas and Mr Moore who appeared for the applicant considered that the wider landscape issues were minor but identified adverse effects on the closet residents.  Mr Knox commented that in terms of the local effects on rural amenity for the closest residents Ms Lucas acknowledged there would be adverse effects and Mr Moore considered that these effects would be moderate to significant for the closest residents.

 

Mr Knox concluded that overall he preferred the view of Mr Moore and in his opinion the adverse effects of the proposed turbines on the visual amenity of the broader Blueskin Bay environment would be no more than minor, but adverse visual effects from closer residences, were likely to be moderate to significant.

 

The Commissioner resolved:

 

That the meeting be adjourned until 2.30 pm."

 

The meeting adjourned at 2.17 pm and reconvened at 2.26 pm.

 

The Environmental Health Officer (Carlo Bell) provided a background to his role which included the investigations of noise complaints and providing advice on resource consent applications.   Mr Bell commented that for this application he had reviewed NZS: 6808-2010, visited the area and carried out background monitoring.  He advised that he had recommended that a peer review be undertaken and asked for clarifications which had now been covered by the peer review from Mr Hunt as well as by Dr Chiles.  Overall Mr Hunt was reasonably accepting of Dr Chiles’s assessment with some areas of difference.  

Mr Bell advised that he agreed that the District Plan Noise Limits were not appropriate for wind turbines and NZS: 6808-2010 was the suitable standard to apply.  He noted that the standard was in-line with international standards and provided for indoor noise levels which meet World Health Organisation guidelines.  Mr Bell advised that NZS: 6808 was designed to avoid adverse noise effects on people caused by the operation of wind farms.  He noted that the noise limit set by the standard is L9040dB at the notional boundary or 5dB above the background noise level (the higher of the two).  Mr Bell commented that no noise or planning law required zero audibility and the standard stated that it did not provide absolute protection from wind farm sound but provided limits that were reasonable for protecting sleep and amenity. 

Mr Bell advised that modelling was an established method and the modelling in this case had been verified by Mr Hunt to be sufficiently accurate.  He commented that a light down-wind was worst case scenario.  At higher wind speed the turbine noise would increase but the masking effect generally increased especially with nearby vegetation. He noted that topography was not considered and this was in accordance with the requirements of NZS6808.

Mr Bell noted that his background noise monitoring found very low background night-time noise levels further away from SH1 in low wind speeds.  However as the wind speed increased to around 3-5 m/s cut in speed 11-18km/h the background increased significantly but was likely to still be below 36dB at the lower operational wind speeds.

Mr Bell commented that there was agreement that the modelling indicated a possible non-compliance at 22 Pryde Rd.  He noted that Dr Chiles highlighted the output need only be reduced by 1dB to comply with NZS: 6808 and demonstrated how this could be achieved.  He has also suggested that background monitoring (10 days) needed to be done pre-construction.

Mr Bell commented that while NZS: 6808 indicated the background assessment should have been done prior to application it could only be omitted where no breach of 40dB was predicted.  Dr Chiles suggested that the modelling showed levels very close to 40dB and in any case the output could easily be adjusted to comply with the 40dB Limit.  Mr Bell was satisfied that that noise could be managed through conditions (size, output, background monitoring, post-construction compliance monitoring) so that NZS6808 could be complied with.  

In relation to amenity, Mr Bell commented that there would at times where the wind farm would be clearly audible from outdoor areas of nearby properties especially around lower operating wind speeds.   He noted that in his experience when a noise source was clearly identifiable people could be sensitised to it and it might cause annoyance even if relevant limits had been complied with.  Given the expected change in the outdoor noise environment for nearby residences this might be considered as a reduction in amenity value. 

 

The Commissioner resolved:

 

"That the meeting be adjourned until 10.30 am on Friday 20 May 2016."

 

The meeting adjourned at 2.45 pm to allow the Planner to prepare their review of the recommendation and reconvened on Friday 20 May 2016 at 10.30 am in the Edinburgh Room, Municipal Chambers.

 

The Planner’s Review of his Recommendation

 

Mr Sycamore reviewed his recommendation in light of the evidence presented at the hearing.  Mr Sycamore thanked the applicant and submitters and noted that the applicant had attempted to address information deficiencies he and submitters had identified.  He acknowledged the Trust ran on a tight budget, however noted that the burden should not fall on submitters to address those technical shortfalls.

 

 

Mr Sycamore commented that he accepted that the applicant had invested a lot of energy into liaising with the community.  Despite this he noted the evolution and increased scale of the turbines after much of that consultation had occurred had clearly caught a number of submitters by surprise.  This was evidenced by the obvious effort put into consultation by the applicant, yet the breadth of dissatisfaction from submitters.

 

Mr Sycamore commented on his reservations regarding the strength of the economic argument, and cautioned against applying too much weight to the positive effects.  He advised that he had generally considered the effects and suitability much the same as if the applicant was a commercial company.

 

In terms of the 104D assessment, Mr Sycamore commented that he had reconsidered his position in terms of the effects limb of 104D gateway test and now considered this limb might not sufficiently met in terms of the effects on immediate neighbours.  He noted that the general consensus of the expert evidence concludes visual amenity and landscape effects were moderate to significant on the immediate neighbours. 

 

Despite the view of Landscape Architects Stephen Brown and Jeremy Head that the proposal was contrary to the objectives and policies of the operative plan, Mr Sycamore indicated that he agreed with Mr Farrell that the objectives and policies should be assessed as a whole, rather than a few in isolation.  He confirmed that he considered that the proposal satisfied the objectives and policies limb of the Section 104D gateway tests. 

 

Mr Sycamore acknowledged that the revised conditions Dr Chiles for managing noise offered during the hearing were more robust that those set out in the draft conditions and agreed and that NZS:6808 is appropriate measurement tool.  Mr Sycamore accepted that noise could be managed by conditions to ensure compliance with the standard NZS:6808-2010.  However he noted the turbines would be clearly audible and may be a considered a by nuisance by residents despite being within the levels specified in the standard.

 

Mr Sycamore commented that Dr Craig, a highly regarded ecologist suggested the effects were negligible and any monitoring would be largely meaningless.  He promoted pest control as a better mechanism to address avian ecology.  This position was not aligned with other ecological experts who preferred monitoring, both pre and post construction.  Mr Sycamore noted that he preferred a balanced approach, whereby some, albeit limited, modelling as carried out prior to installation to develop an understanding of bird migration.  While Dr Craig might be correct, Mr Sycamore considered it would be irresponsible to not quantify bird migration through the subject site.  Mr Sycamore commented that Mr Farrell for the applicant had sought more targeted conditions relating to bird strike and management than those he had recommended.  He noted that he was happy to accept Mr Farrell’s recommendations and he noted that if the application was granted that these conditions could easily be substituted for his proposed conditions.

 

Mr Sycamore commented that Mr Knox had provided an invaluable summation of landscape effects and that Mr Knox had found the expert evidence of Mr Moore most compelling.  He commented that Mr Knox concluded any adverse effects of the turbines on the broader Blueskin Bay community would be no more than minor.  For those closer residents, such as the Pryde Road neighbours, Mr Knox had accepted effects on landscape and amenity would be moderate to significant.  Mr Sycamore accepted the overall assessment of both Mr Moore and Mr Knox and he noted that landscape and amenity were the key point of contention. 

 

Mr Sycamore recommended that clarification as provided by the applicant in their right of reply on the potential impacts on the application of fertiliser on neighbouring farms and concerns regarding impacts to groundwater and springs which were relied on by neighbouring site for domestic and rural uses. He also sought clarification that the colour of the turbines was acceptable to the CAA.

 

Mr Sycamore considered that alternative sites were not sufficiently addressed in the application.  He commented that some other sites were initially assessed but he was not convinced other sites were appropriately considered.  Mr Sycamore noted that there were likely to be other sites where wind characteristics were equally suitable with less impact on private residents.  He did not agree with Mr Farrell who considered it was not necessary to assess alternative sites.

 

With respect to the 10 year lapse date sought, Mr Sycamore confirmed his view that it was inappropriate to impose such a period of uncertainty to those local submitters in opposition.  A 5 year lapse period provided sufficient time to demonstrate substantial progress, while not necessarily requiring the project to be completed and operational.

 

In terms of undesirable precedent Mr Sycamore commented that the proposal was a true exception. The non-complying activity status was the result of the operative District Plan being out dated and failing to contemplate wind turbines for energy generation.  Future utility applications of this scale were unlikely to piggyback on the outcome of this application should consent was approved.

 

Mr Sycamore noted that some submitters had expressed concern at decommissioning of the turbines should the activity not be financially viable.  He considered that a bond should be in place to cater for any unforeseen outcome.

 

Mr Sycamore considered that the proposal was finely balanced. While acknowledging the turbines would change the landscape, it was his view the significant adverse effects were limited to those residing near Porteous Hill.  He noted that if the Commissioner was satisfied that the fresh water springs would not be affected, and that the visual and noise effects on the Pryde Road neighbours were acceptable, then he considered that consent could be granted.  Mr Sycamore stated that at his point he was unconvinced the effects on the Pryde Road neighbours were sufficiently addressed with respect to both visual dominance and noise. He also noted the unpredictable nature of springs providing potable and stock water. As a consequence he recommended the application be declined.

 

The Commissioner resolved:

 

"That the meeting be adjourned until Thursday 9 June 2016 at
10.00 am."

 

The meeting adjourned at 10.50 am and reconvened on Thursday 9 June 2016 at 10.00 am in the Edinburgh Room, Municipal Chambers.

 

MEMBERSHIP:                                        Commissioner Colin Weatherall

 

IN ATTENDANCE:                            John Sule (Senior Planner/Committee Advisor), Darryl Sycamore (Planner) and Wendy Collard (Governance Support Officer)

 

The Commissioner provided a background to the procedures for today and commented that he and Mr Sule had conducted a site visit on 2 June 2016 and may still require some further site visits.  He commented that he intended on visiting Mount Stuart and while in Wellington the Brooklands wind farm but would not be going onto the site.

 

The Commissioner commented that he had made a decision on the confidential information which had been provided by the applicant during the first part of the hearing.  He advised that it would be returned to the applicant unread as he felt it was not relevant to his decision and that the evidence could be made public following the closure of the hearing which he felt that would not be beneficial to the applicant.  Ms Irving advised that they were happy with the decision as they were going to request the information be returned.

 

The Governance Support Officer (Wendy Collard) returned the evidence to the applicant's Legal Counsel Mr Campbell Hodgson.

 

Applicant's Right of Reply

 

Ms Irving tabled and spoke to her closing legal submissions.  She clarified the key features of the application which included:

 

·                The establishment and operation of 3 wind turbines on Porteous Hill and that the turbines would not exceed a height of 90 from ground level to blade tip.  The turbines would be finished in a light grey colour (RAL7035).  The turbines would be finished with a matt finish to avoid blade glint. Each turbine requires a medium intensity flashing light at hub height that would flash between 20 and 60 times per minute.  The light would be shielded from locations below.  The turbines were capable of generating 2.4MW of electricity when operating at full capacity.

 

·                GPS locations were provided to identify turbine positions but flexibility was sought to move the turbines by up to 30m.  If movement is required they would not be moved any closer to the closest dwellings at 22 and 90 Pryde Road.  The turbines would be no closer than 679m from 22 Pryde Road, 471m from 90 Pryde Road and 580m from 110 Porteous Road.  For all other dwellings the distance is greater than 900m.

 

·                Predicted noise levels indicate a minor breach of noise limits could occur at the notional boundary of 90 Pryde Road.  If there is non-compliance the power output of the closet turbine would be reduced to ensure compliance.  All turbines would be free of special audible characteristics.

 

·                Earthworks would be undertaken to establish access tracks, for foundations and to widen the access road.  Transmission lines would be located underground within the site.  Two options for transmission were identified.

 

The Commissioner resolved:

 

"That the meeting adjourn until 11.42 am."

 

The meeting adjourned at 11.39 am and reconvened at 11.42 am.

 

The applicant argued that BRCTs own vision reflected the purpose of the Act.  It was noted that approval would send a positive message to other communities with New Zealand that they too can be masters of their own density.  The applicant concluded by requesting that consent be granted.

 

The meeting is adjourned at 11.55 am to allow the Commissioner time to consider the evidence provided today and reconvened on Thursday 16 June 2016 at 9.40 am.

 

RESOLUTION TO EXCLUDE THE PUBLIC

 

The Commissioner resolved:

 

        “That the public be excluded from the following parts of the proceedings of this meeting, namely, Item 1.

 

          The general subject of each matter to be considered while the public is excluded, the reason for making this ruling in relation to each matter, and the specific grounds under Section 48 (1) of the Local Government Official Information and Meetings Act 1987 for the making of this ruling were as follows:

 

 

 

General subject of each matter to be considered

Reason for making this ruling in relation to each matter.

Ground(s) under section 48 (1) for the passing of this resolution.

 

 

 

 

1

Resource Consent Application – 147 Church Road, Merton

That a right of appeal lies to any Court or Tribunal against the Dunedin City Council in these proceedings.”

S 48(1)(d)

 

                  

 

The meeting moved into non-public at 9.40 am.

MINUTES OF THE NON-PUBLIC PART OF A MEETING OF THE HEARINGS COMMITTEE, HELD IN THE EDINBURGH ROOM, MUNICIPAL CHAMBERS, ON 16 JUNE 2016, COMMENCING AT 9.45 AM

 

PRESENT:                                       Commissioner Colin Weatherall

 

IN ATTENDANCE:                            John Sule (Senior Planner/Committee Planning Advisor) and Wendy Collard (Governance Support Officer)

 

PART C:

 

1          RESOURCE CONSENT APPLICATION – LUC-2015-469, 147 CHURCH ROAD, MERTON

 

The Commissioner gave consideration to the Planner’s recommendation, to the points raised by the applicant and the submissions that had been received.

 

Decision

 

The Commissioner resolved:

 

"That pursuant to Section 34A(1) and 104B and after having regard to Part 2 matters and Sections 104 and 104D of the Resource Management Act 1991, and the relevant provisions of the Dunedin City District Plan and the Proposed Second Generation Dunedin City District Plan, the Dunedin City Council declines consent to a non-complying activity being the establishment and operation of 3 wind turbines on Porteous Hill and associated earthworks  on land at 47 Church Road, Merton, legally described at Lots 1 & 2 Deposited Plan 473199, held in Computer Freehold Register 646829."

 

 

Reasons for the Decision

 

The Permitted Baseline and the Existing/Receiving Environment

 

1.         Following visits to the wind farm site and neighbouring sites the Commissioner agreed that the subject site and the receiving environment were rural in character.  In terms of the receiving environment the Commissioner noted that the Landscape Architects evidence was reasonably consistent.   The site on Porteous Hill was not located in an outstanding landscape but it was located on a significant local landscape feature (Porteous Hill).  As Porteous Hill was a prominent feature near the settlements of Waitati and Warrington the turbines would be highly visible to a wide viewing audience.  The Commissioner accepted that although the receiving environment was modified by farming practices and shelter planting it retained a high degree of naturalness.

 

2.         In respect of whether the site forms part of the costal environment and the relevance of the NZ Coastal Policy statement the Commissioner considered that the location of the turbines was outside the coastal environment and therefore the Coastal Policy Statement was not a consideration in determining the outcome of the consent.

 

3.         The Commissioner accepted the advice that I received on the permitted baseline from Mr Sycamore.  The most relevant baseline to apply was that related to the installation of permitted utilities and permitted earthworks activities.  The discounting of effects in respect of permitted utility activities, given the scale of the turbines, provided minimal assistance to me in determining the matter.

 

4.         Consideration of the existing/receiving environment required a review of permitted activity rights and any resource consents that have been granted and were likely to be implemented.  The submission from John Thom referenced a future subdivision of his farmland and the construction of a dwelling.  While this might be a part of Mr Thom’s future plans the Commissioner accepted the legal submission from the applicant that it could not be a consideration in assessing the impacts of the proposed turbines.  This would also apply to the proposed subdivision and future residential use of Mr Bennett's land raised in his submission. 

 

Effects

 

Landscape

5.         The Commissioner discussed the issue of divergent expert advice on landscape effects throughout the hearing and he noted the turbines described were as elegant at one end of the scale and ugly, large, spiky things at the other end.  All landscape experts agreed that the turbines would result in a significant change but disagree as to whether that change was adverse or the degree to which it was adverse.  Submitters too had a divergence of views on the landscape merits of the turbines ranging from the turbines being akin to a kinetic sculpture to a landscape abomination.  The Commissioner appreciated the brief summary of the landscape evidence provided by Mr Knox as it was a useful starting point outlining what was generally agreed by landscape experts and where there was disagreement.

 

6.         Determining a position on landscape effects is difficult as the assessment was subjective and potentially more art than science.   The turbines would have a large resident viewing audience which the evidence suggested was not typical for wind farms and the Porteous Hill location appeared to have been selected partly because of its visibility to the community of interest.  The applicant saw that as positive as the turbines were providing a symbol for the community that represented the proactive manner in which it was facing the challenges that climate change presented.  It was clear from the number of opposing submissions that not everyone would see it that way. 

 

7.         Ms Lucas noted in her evidence that the design of the proposed wind farm assisted in achieving an acceptable landscape outcome.  She identified that three, slim, elegant, 90m high turbines with three blades, painted light grey and established with minimal earthworks would result in only minor effects on landscape values.  Mr Moore who had peer reviewed the landscape assessment for the applicant largely agreed with Ms Lucas and he concluded that the wind farm would integrate acceptably with the character of the rural landscape and would generally have positive effects on visual amenity values.  Mr Knox the Council reviewer agreed.  The landscape architects appearing for the submitters Mr Brown and Mr Head disagreed and considered the adverse landscape effects to be significant.  Mr Head appeared to take the most extreme position on the turbines describing them at one point as ugly large spiky things.  He argued that they were entirely inappropriate at the proposed location.  Mr Brown was less extreme in his position but also concluded the proposal would have significant adverse effects on the landscape.

 

8.         Mr Knox the Council’s expert reviewing the landscape assessments had indicated that he preferred the position of Mr Moore and that he generally saw the impact on the wider Blueskin Bay environment as no more than minor.  In terms of the wider landscape effects, the Commissioner preferred the evidence that indicated that the wider landscape effects of the proposed turbines were no more than minor.  The turbines were not sited in an outstanding landscape and the proposal would not alter the landform.   Farming would continue to occur within a landscape modified by farming practices.  The reduced scale of the turbines to 90m and the design elements integrated into the proposal assist with landscape integration.  A significant change would occur and the viewer’s eye would be drawn to Porteous Hill but the effect on the wider environment was not necessarily adverse. 

 

Rural Character and Amenity

 

9.         The turbines at 90m high were very large structures and they would be located in close proximity to neighbouring rural properties that contained dwellings.  The dwelling at 90 Pryde Road would be the closest dwelling to any of the proposed turbines.  That dwelling would be 471m from the northernmost turbine.  Its proximity was such that achieving compliance with noise limits might require the output of the closest turbines to be reduced.

 

10.      The applicant acknowledged that the effects on the Pryde Road properties were more than minor.  Ms Lucas accepted the effects were more than minor and the applicant's peer reviewer Mr Moore considered the effects were moderate to significant.  The position of Mr Knox was aligned with Mr Moore.  Mr Head and Mr Brown considered the effects on rural amenity values to be significant.  Mr Brown prepared detailed evidence that looked closely at the amenity impacts at 22 and 90 Pryde Road.  After hearing the evidence and relating the evidence to observations on the site the Commissioner considered the effects to be significant for the properties at 22 and 90 Pryde Road and moderate for the property at 139 Pryde Road.  While the Commissioner acknowledged the turbines were not in full frontal view as noted by Ms Lucas proximity to the turbines was an issue.  The evidence suggested that there might be no other privately owned dwelling located as close to a turbine of this size in the country.  The Commissioner considered the turbines would be intrusive and visually dominant and the significant impact of the turbines on the closest properties could not be mitigated to any degree.

 

Earthworks and Road Access

11.      Earthworks were identified as a concern to some submitters and questions were raised on the lack of detail on the earthworks that were proposed.  The application indicated that approximately 6,500m3 were anticipated.  The applicant had indicated that earthworks would be required for improvements to Porteous Road a vehicle access from Porteous Road to the turbine locations and for the foundations of the turbines.  Ms Irving referred me to an indicative layout prepared by Mark Walrond in relation to the proposed access.  Ms Irving also indicated that the applicant was confident that improvements to the road could all be undertaken within legal road reserve.  Ms Irving noted that no consents had been sought to carry out works beyond the legal road and if there was work required outside the legal road then this was a risk for the applicant.


 

 

12.      The Commissioner was satisfied that the earthworks on the site for access track and foundations could be undertaken with only minor effects and effects could be managed by conditions.  Recommended conditions were proposed in respect of the earthworks in the road that satisfy the roading authorities and he was satisfied that any adverse effects could be adequately managed through the recommended conditions. 

Noise

13.      Noise was an important effects issue for a number of submitters particularly the closest residents on Pryde Road.  The Commissioner noted that noise environment on Pryde Road would vary depending on proximity to the State Highway and would be influenced at times by activity at the quarry.  The Commissioner agreed that the District Plan noise limits were not appropriate for the assessment of wind turbine noise and accepted the expert advice from Dr Chiles that the noise standard NZS:6808-2010 was the appropriate measurement and assessment standard.  The Commissioner also accepted the expert advice that the modelling undertaken by the applicant had been conservative and this was confirmed by the peer review that was undertaken.  Both Dr Chiles and Mr Hunt were qualified and experienced in noise prediction and the assessment of noise from wind turbines. While some submitters including Mr Albert were critical of the noise modelling and assessment no alternative expert view was presented.

 

14.      In the absence of background sound measurement, which would potentially allow a noise level greater than L9040dBA, a predicted non-compliance at the notional boundary of 90 Pryde Road of 1 dB was identified by Dr Chiles.  The Commissioner noted that the level of non-compliance was unlikely to be noticeable to a receiver and the advice from Dr Chiles was that if any non-compliance of the level arose it could be addressed by managing the output of the turbines.  While the Commissioner accepted that achieving compliance by this means was possible it appeared to be a constraint that was less than ideal from the applicant’s perspective.

 

15.      Noise from the turbines would be audible at neighbouring properties at times, although within the dwellings of neighbouring sites it would be below the level the world health organisation identifies as appropriate for sleep.  The Commissioner also accepted the evidence that the proposed Enercon Turbines would not have special audible characteristics.  Special Audible Characteristics were a particular issue with early model turbines but no evidence was produced that it would be an issue with the model proposed for Porteous Hill.  He also accepted that audibility was not an appropriate standard that could be used to regulate noise emissions but noted that as the turbines could be heard the noise from the turbines would potentially impact on amenity values.  Dr Chiles' view on that matter was the while the noise form the wind farm would influence rural amenity it should not represent a significant deterioration.  Mr Brown noted that particularly at 90 Pryde Road the noise would reinforce awareness of the turbines and their visual dominance.  The Commissioner accepted that the noise from the turbines would be able to comply with the limit specified in NZS:6808-2010 and this could be secured through consent conditions.  He considered that the noise impacts would be restricted to a minor reduction in amenity values when considered discretely but the Commissioner agree with the evidence that indicated that the audibility of the noise would likely reinforce the visual dominance of the turbines particularly at the property at 90 Pryde Road.

 

Positive Effects

16.      The Commissioner noted that the positive effects that would accrue from the proposal were an important component of the applicant’s case.  The applicant had identified in their right of reply that these positive effects were as follows:

 

·                A contribution to increased renewable electricity supply consistent with the objectives of the NPSREG;

·                An increase in the diversity of supply within Dunedin increasing the resilience of the electricity supply for the city consistent with the Objectives of the 2GP;

·                Increased efficiency of the use of land at the site by allowing wind resource to be captured whilst farming activity would continue;

·                A reduction in carbon emissions which contributed to New Zealand’s international obligations;

·                A significant stream of funding to BRCT to enabled it pursue its vision; and

·                Providing a symbol for the community that represented the proactive manner in which it was facing the challenges that climate change presents.

 

The applicant had also indicated in broad terms the intended dividend from the profits that would be directed back into community initiatives to improve community resilience would be in the order of $100,000 per annum.  It was clear from the evidence that the increase in renewable supply, the diversity of that supply and the reduction of carbon emissions accruing from the proposed development was very small.  This led to some disparaging comments by submitters about the merits of the proposal.  Despite this the Commissioner considered the proposal had positive effects and these included the significant symbolic value of the project.  It would provide an income stream for community initiatives.  As Ms Irving pointed out the objectives of the NPSREG applied regardless of scale.

 

Impacts on Farming Activity

 

17.      Submitters had raised concerns about potential impacts on their farming activities in relation into the application of fertiliser by helicopter of a fixed wing plane.  The applicant had addressed the issue to the Commissioner's satisfaction in the right of reply where the applicant noted that the neighbouring land owners would be able to utilise aerial topdressing methods as they wished and not breach CAA requirements.  Impacts on faming activities on the site and on neighbouring sites were considered to be minor.

 

Ecological Effects

 

18.      There was significant debate on the adequacy of the applicant’s evidence on ecological impacts particular in relation to effects on avifauna.  The Applicant’s expert Dr Craig argued that the effects would be minimal and that the applicant would be better directing money into pest control rather that large expensive studies which were highly unlikely to be of value.  Ms McClellan disagreed with this approach as did Mr Onley who provided detailed submissions arguing that in the absence of data collection there could be no certainty as to the significance of the effects.  I accepted that best practice would be to undertake detailed studies prior to the application being lodged. However, the work was expensive and time consuming and the effects assessment provided should relate to the scale and significance of the application.   With only 3 turbines proposed the scale of the application needed to be taken into account.  In general terms the Commissioner was satisfied that on the balance of probabilities that the effects on avifauna would be minimal.

 

Geotechnical/Groundwater

 

19.      The applicant responded to concerns raised in submission and Mr Sycamore in the review of his recommendation by supplying a geotechnical report from Mark Walrond of Geosolve.  The Commissioner acknowledged that spring water was critical to the farming activity on neighbouring sites.  Although, he was not able to question Mr Walrond on the assumptions in his report, on the balance of probabilities he considered that more than minor impacts to groundwater were unlikely.  The report noted that with the exception of the foundations, the site would remain permeable and the volume of spring flows was not likely to be affected.  No expert evidence to the contrary was submitted.

 

Financial Viability Decommissioning

20.      Although the Commissioner had received submissions questioning the viability of the project, he agreed with the advice from Mr Sycamore that financial viability was only a consideration in terms of environmental remediation and decommissioning should the project fail.  Mr Sycamore supported a bond but the applicant had argued that a bond was not necessary.  Mr Willis noted that the value of the metal from the turbines would be significantly more than the costs associated with disestablishing the towers but produced no figures to support that contention.  He considered the risk to the environment of project failure was relatively low.  It certainly did not have the degree or risk that a mining project would have.  Given the relatively low level of risk associated with project failure the Commissioner was satisfied that a condition requiring decommissioning in the event that the turbines were established and then no longer required would suffice in this case. 

 

Shadow Flicker and Blade Glint

21      These effects were identified as a concern in submissions, with the lack of detail in the assessment on these effects questioned.  The applicant responded to these concerns in the right of reply.  In terms of blade glint the applicant had promoted a matt paint finish as an appropriate means of mitigating blade glint and had argued that the effects of shadow flicker would be minor.  Having considered the evidence and submissions on these effects, the Commissioner was satisfied that the effects would be minor.

 

Lighting

22    Some submitters raised concerns about lighting on the top of the turbines.  The applicant confirmed that flashing lights would be required on the top of the turbines to meet civil aviation requirements but that the effects of the lighting would be minor as shielding would be provided to mitigate the effects of lighting on properties below the turbines.  Concerns were also raised by submitters in relation to the night sky.  The Commissioner accepted the applicant’s view on the effects from lighting and he agreed that with mitigation in place they would be minor.

 

Conclusion on Effects for Section 104D Gateway Test

23.      The Commissioner concluded that the adverse effects on the amenity and character of the use of the closest properties to the site (22 and 90 Pryde Road) were significant and the effects on the dwelling at 139 Road were moderate. 


 

While the outlook from the dwellings on these properties was for the most part oriented away from the turbines to the North the turbines were in close proximity to the dwellings at 22 and 90 Pryde Road.  The evidence suggested that the dwelling at 90 Pryde Road at 471m from the closest turbine mighty be the closest privately owned dwelling to a turbine 90m or higher in the country.  The Commissioner agreed that due to the proximity of the turbines, particularly the most northern turbine, and the elevation of the landform on which the turbines were sited relative to Pryde Road, they would be imposing and visually dominant for the owners and occupiers of these properties.  The noise from the turbines would be audible at these properties drawing attention to the visual dominance of the turbines.  As a result, they would significantly alter the rural amenity values for the closest properties, adversely affecting the use and enjoyment of these properties. 

 

24.      The Commissioner accepted the legal advice that he had received on the effects gateway limb of the Section 104D gateway test.  As a consequence he considered that the proposal did not pass the effects limb on the 104D gateway test and therefore the proposal must pass the objectives and policies limb of the gateway test before he could consider granting consent to the proposed development. 

 

Objectives and Polices

 

The NZ Coastal Policy Statement 2010

25.      The Commissioner accepted advice that while the site was close to the coast, the location of the turbines was not within the coastal environment and as a consequence he had not given the policy any weight.

 

The National Policy Statement for Renewable Electricity Generation (NPSREG)

26.      Ms Irving in her closing submissions noted that the national policy statement was applicable and an important consideration regardless of the scale of the project.  Mr Farrell the planner for the applicant also placed weight on the NPSREG noting that the weight he placed on the policy statement was a point of difference between his position and that of Mr Sycamore.  The Commissioner accepted that the NPSREG was relevant and that it applied regardless of the scale of the project.  As a result, the direction within the policy statement was important and needed to be taken into account when determining the application.

 

District Plan Objectives and Policies

27.      The applicant conceded that the proposal did not pass the effects gateway and argued that the proposal passed the objectives and policies limb of the Section 104D gateway test.  The closing submissions from the applicant argued that the Commissioner should assess the objectives and policies as a whole.  Ms Price and Mr Much identified a High Court case that promoted an approach where a proposal would fail the gateway test limb if it was contrary a single objective or policy.  This case was described by Ms Irving as an outlier.  The Commissioner considered that the orthodox approach of considering the objectives and policies as a whole was appropriate in this case and he applied the orthodox approach to his consideration of the objectives and policies.


 

28.      The Commissioner also considered the divergence of legal opinion on the weight to be afforded to the objectives and policies of the second generation proposed District Plan in relation to energy generation.  His consideration was assisted by additional independent legal advice provided by Michael Garbett from Anderson Lloyd.  The Commissioner accepted the advice that more weight could be given to the proposed 2GP objectives and policies on energy generation than would typically be the case as they were prepared specifically in light of the NPS for renewable energy generation.

 

29.      The Commissioner also agreed with the independent legal advice that he could not consider the objectives and policies of the operative plan in relation to the Landscape Section as the turbines were not located within the overlay. He agreed with Mr Farrell that there was no policy guidance in the operative plan that would suggest that effects from outside the overlay area that impact on land within the landscape overlay required the Landscape Section objectives and policies to be considered. 

 

30.      Both Mr Farrell and Mr Sycamore had determined that an overall assessment of the objectives and policies indicated that the proposal was not contrary to the relevant objectives and policies of the operative and proposed District Plans.  Mr Head and Mr Brown argued that the proposal was contrary.  Having considered the evidence the Commissioner agreed with Ms Irving that the expert landscape evidence from Mr Head and Mr Brown in relation to the assessment of objectives and policies was too focused on landscape issues in coming to an overall position on how the proposals fit with the policy framework.  He also noted that case law established contrary as a high bar meaning opposite to or repugnant to. 

 

Conclusion on Objectives and Policies

31.      The Commissioner preferred the position of Mr Sycamore and Mr Farrell that the proposal was not contrary to the objectives and policies of both the operative and proposed second generation plans when the objectives and policies were considered as a whole.  Therefore the proposal passed the objectives and policies gateway in section 104D and he was able to consider granting the consent following an assessment under Section 104 of the RMA, subject to part 2 of the Act.

 

Consideration of Alternatives 

32.      Mr Farrell did not consider alternatives as he considered the adverse effects were more than minor but not significant.  The Commissioner noted that the applicant contended that if the effects were found to be significant then it had undertaken an adequate assessment of alternative sites which was a requirement of the RMA when the effects were significant.  The applicant identified the alternative sites that were considered in the evidence of Mr Willis and in its right of reply.  He accepted that the applicant had looked at other sites and he considered that the description of alternative locations provided by the applicant had met the applicant’s obligations in relation to the consideration of alternatives.

 

Other Matters

Precedent

33.      In terms of precedent Mr Sycamore identified that in his opinion the proposal would not create an undesirable precedent for future applications.  He noted its non-complying activity status related to the fact that wind generation was not considered in the operative plan.  The Commissioner agreed that precedent issues which arose from the proposal were not likely to be readily transferable to any other "like" proposals within Dunedin City.

Consultation

34.      In relation to consultation the Commissioner noted that this was not a requirement under the RMA.  Despite this, a large number of submissions and a lot of evidence was directed towards consultation.  The applicant’s aspirations in relation to community resilience and its description of the proposal as community support activity might explain why this was a particular focus.  The applicant argued that the evidence indicated that the applicant had put significant effort into consulting and involving the local community in its projects including the current proposal.  He acknowledged that effort.   However, it is also clear from the submissions that the more recent changes to the project prior to lodgement of the application were not well understood by the local community.  There was no evidence to indicate that there was any specific consultation on the establishment of three 90m high turbines on Porteous Hill and the large number of submissions questioning the consultation process is testament to this. 

Determination

35.      The Commissioner considered the proposal was not contrary to the objectives and policies of the operative and proposed District Plans.  Having determined that the proposal was not contrary to the objectives and policies of the operative and proposed plans he was required to consider the matter under Section 104 and Section 104 is subject to Part 2 of the RMA.

 

36.      The Commissioner considered the range of effects arising from the proposal and he believed the most significant adverse effects would be on the closest neighbours to the site on Pryde Road.  Their amenity would be adversely affected by the close proximity of the turbines to their farms and dwellings.  The proximity of the turbines was important as the evidence and his questioning indicated that the adverse effects of the turbines on rural character and amenity were not able to be mitigated to any degree.  This was not surprising given their 90m height.  It was accepted that the dwellings were oriented away from the turbines although the dwelling at 22 Pryde had a kitchen/living area window and parts of the outdoor living space that looked towards Porteous Hill.  Despite this, the turbines would be imposing and visually dominant, particularly the northern most tower, in relation to the properties at 22 and 90 Pryde Road and to a lesser extent the property at 139 Pryde Road.  

 

37.      Ms Irving in her closing identified that the only live issue for the proposal was the significance of the adverse effects on Pryde Road residents.  The Commissioner agreed that this was the area of most contention and critical in determining the outcome of the consent.  He noted there had been a number of wind farm cases that had dealt with dominance and/or significant and very significant effects on neighbouring sites by the removal of one or more turbines.  The Commissioner considered the imposing nature of the turbines on the sites at 22 and 90 Pryde Road and the impact on rural character and rural amenity values of their dominance would be reduced by the removal of the northernmost turbine from the proposal.  The option was not offered by the applicant in their closing and he was reluctant to impose this as mitigation as the three turbines appeared central to the applicant’s proposal.  

 

38.      In respect of the other effects of the proposal including landscape, there would be adverse effects but not to a degree that would be significant enough to compel refusal of the application.  Noise would meet the required standard but the Commissioner considered it would add to the intrusion and dominance experienced by residents and it would contribute to the reduction in amenity values.

 

39.      The Commissioner considered the positive effects of the proposal and the influence of the NPSREG on the assessment renewable energy generation projects.  He accepted the NPSREG provided a strong direction to grant consents to renewable energy projects regardless of their scale due to the national benefits of renewable energy.   In considering the NPSREG the Commissioner noted that when adverse effects could not be mitigated the direction within the policy statement was to look at compensation or environmental offsets.  Any compensation involved with the project was not directed to the worst affected neighbours and did not provide any respite from the significant amenity impacts on those nearest neighbours.  In this case he considered that the adverse effects on amenity values were too great for these worst affected residents.  Ultimately the Commissioner decided that the wider benefits of the application did not outweigh the significant adverse effects on the amenity values of the nearest neighbours.  He noted that the determination might have been different if the option of removing the closest and most dominant turbine from the application had been identified as an option that was available to me.  

 

40.      The Commissioner considered that declining of consent was necessary to achieve the purpose of the Resource Management Act 1991 to promote the sustainable management of natural and physical resources.

 

 

The meeting ended at 12.15 pm.

 

 

 

 

 

                                      

COMMISSIONER