David Brooks Calls On Minister Hazzard For Public Inquiry Into Gullen Range Wind Farm
Parkesbourne/Mummel Landscape Guardians Inc.
PO Box 1237, Goulburn, NSW 2580
28 March 2014
The Hon. Brad Hazzard MP
Minister for Planning and Infrastructure
Dear Minister Hazzard
Re Gullen Range Wind Farm turbine re-locations: the need for a public inquiry
I am writing to you to urge you to set up an independent, public inquiry into the matter of the unauthorised Gullen Range Wind Farm turbine re-locations, and into the Gullen Range Wind Farm generally, from proposal through assessment and approval to construction and operation. I suggest that the inquiry should be at least a Judicial Commission.
The grounds for instituting such an inquiry are as follows:
1. The proponent, Gullen Range Wind Farm Pty Ltd (GRWF) has admitted that it has changed the location of 69 of the 73 turbines of the Gullen Range Wind Farm from the locations authorised by the Project Approval (see Micrositing Consistency Review (2013) (prepared for the proponent by ngh environmental), pp. 1-2, 5). The turbines have been re-located by distances from 1 metre to 187 metres, the average distance of change being 42 metres (p. 5).
2. These changes are not notional but real. The entire system of roads, hardstands and turbine footings has been built. About 50 turbines have already been erected. The erection of turbines, including some illegally located, continues.
3. All this has happened, and continues to happen, without the proponent having submitted a modification application to yourself.
4. Therefore, these turbine re-locations constitute a violation of condition 1.5 of the Project Approval, which states clearly and unequivocally:
“1.5 Pursuant to section 75J (4) of the Environmental Planning and Assessment Act 1979 the project is modified to remove the ability of the Proponent to relocate turbines from the locations indicated in the document referred to under condition 1.1b) [i.e. the Environmental Assessment, 2008] by up to 250 metres, without further assessment and approval in accordance with the requirements of the Environmental Planning and Assessment Act 1979.”
5. The proponent has argued that it is allowed to make “minor relocations” from those authorised (Goulburn Post, 3.3.14), but this argument has no validity.
6. Section 75W (2) of the Environmental Planning and Assessment Act 1979 allows modifications that are “consistent with the existing approval” to be made without seeking the Minister’s approval. But, the proponent’s turbine re-locations are not consistent with the “existing approval”. They directly violate condition 1.5 of the Project Approval, and they do so on a massive scale.
7. The proponent’s Micrositing Consistency Review (2013) emphasises that the turbine re-locations are, in its judgment, consistent with the “Approved Project” (pp. 1, 20-21). Thence, the proponent asserts that the changes must be consistent with the conditions of approval (pp. 20-21). But this argument is fallacious.
8. The EP&A Act, in section 75W, does not refer to the “Approved Project”. It refers to the “existing approval”. Section 75W (2) states, in part: “The Minister’s approval for a modification is not required if the project as modified will be consistent with the existing approval under this Part [i.e. Part 3A].”
9. The proponent may have been influenced by an error in the Director-General’s Major Project Assessment (2009), a document produced by officials in your department. At section 2.2 of the Major Project Assessment the Director-General discusses the proponent’s request to be allowed to move the turbine locations by up to 250 metres, and rejects it. But, the Director-General adds:
“It should be noted that notwithstanding this prohibition, the Environmental Planning and Assessment Act 1979 permits the Proponent to make minor amendments to the project where such amendments would not be inconsistent with the approved project, or to seek the Minister’s approval to modify the approval if the amendments are in fact deemed to be inconsistent. (bold added)”
10. As we have seen, section 75W does not refer to consistency with the “Approved Project”. It refers to consistency with the “existing approval”. And in section 75W (2) the word “minor” does not occur. The Director-General is therefore wrong in asserting that “minor” amendments which are consistent with the “Approved Project” are permitted without the proponent seeking the Minister’s approval.
11. It seems that your own department now recognizes that the proponent’s position has no validity, since your department has told the proponent that its turbine re-locations are unauthorised, and that the proponent faces the threat of legal action in the Land & Environment Court (DoPI, media release, 28.2.14).
12. Moreover, the proponent has now backed away from what must have been a bluff, because it has now, apparently, agreed to submit a modification application, according to section 75W of the EP&A Act (Goulburn Post, 21.3.14).
13. However, the unauthorised turbine re-locations still need to be investigated by an independent, public inquiry, because of the very large sums of money involved in the re-locations, and because of the associated possibility of impropriety or corruption.
14. Appendix B of the Micrositing Consistency Review (2013) makes it clear that the main reasons for the turbine re-locations were to increase “wind yield” and to minimise “wake loss”. That is, the reason for the re-locations was to maximise electricity production, and hence to maximise revenue. Over the lifetime of the wind farm the turbine re-locations could make a difference in revenue of tens of millions of dollars. This provides a sufficient motive for the proponent’s attempt to make all the turbine re-locations without seeking further assessment and approval, in blatant violation of condition 1.5 of the Project Approval, and to delude your department into accepting that the proponent did not need to seek further assessment and approval.
15. Therefore, an independent, public inquiry needs to determine whether the proponent’s deliberate violation of the Project Approval, by changing the locations of 69 of the 73 turbines from the locations authorised in the Project Approval, constitutes attempted fraud, and corruption.
16. Another aspect of this situation concerns the appointment and performance of the “independent Environmental Representative to the project”, Mr Erwin Budde.
17. According to condition 7.1 of the Project Approval, the proponent is to nominate to the Director-General of the Department of Planning a suitably qualified and experienced individual to be appointed as the independent Environmental Representative to the project. The independent ER is to advise the proponent of the proponent’s compliance obligations (condition 7.1b), and to have “the authority and independence to recommend to the Proponent reasonable steps to be taken to avoid or minimise unintended or adverse environmental impacts, and, failing the effectiveness of such steps, to recommend to the Proponent that relevant activities are to be ceased as soon as reasonably practicable if there is a significant risk that an adverse impact on the environment will be likely to occur.” (condition 7.1c)
18. It is clear from the language of 7.1c) that the independent ER must be genuinely independent of the proponent, since the ER must be prepared to give to the proponent advice that the proponent may think is not in its interests.
19. The individual appointed as the independent ER for the Gullen Range Wind Farm is Mr Erwin Budde. But Mr Budde is, arguably, not a suitable candidate for the role, as he cannot be considered independent of the proponent. He has a blatant and extreme conflict of interest.
20. Erwin Budde is a Director of the consultancy ngh environmental (www.nghenvironmental > About Us). ngh environmental has been working for the proponent on the project of the Gullen Range Wind Farm since its inception in 2007. ngh environmental prepared the Environmental Assessment (2008) and the Submissions Report (2008). Since 2008 it has continued to act for the proponent in the proponent’s relations with the NSW government, with other agencies and bodies, and with the general public. Its latest production on behalf of the proponent is the Micrositing Consistency Review (2013), which justifies the unauthorised turbine re-locations, and justifies the proponent’s view that it does not need to submit a modification application in respect of them. It is obvious that ngh environmental is the agent of the proponent.
21. Erwin Budde, therefore, has a blatant and extreme conflict of interest, and should never have been appointed as the independent ER.
22. In discussions with myself, and with others, officials in the Department of Planning have justified the appointment of Erwin Budde as the independent ER by referring to the wording of condition 7.1 of the Project Approval. In condition 7.1 the only constraint on the nomination of candidates for the role of independent ER is that the candidate should be “independent of the design, construction and operation personnel”.
23. I suggest that the wording “independent of the design, construction and operation personnel” is at least improper, if not corrupt, since it seems to have been designed to allow someone like Mr Budde, an individual with an extreme conflict of interest, to be appointed. Mr Budde may have played no role in the preparation of the Environmental Assessment (2008) or of the Submissions Report (2008), but that is irrelevant. As a Director of ngh environmental, he shares in the obligations of that company to promote the interests of the proponent, thereby promoting the interests of ngh environmental and of himself.
24. Mr Budde’s conflict of interest has now been proved in practice. Acting in his capacity as “independent” ER, he has approved all the unauthorised turbine re-locations, and has supported the proponent’s fallacious and possibly fraudulent argument that the proponent does not need to submit a modification application in respect of the turbine re-locations. To put it bluntly, Mr Budde has approved the deliberate violation of the Project Approval, which violation is on a massive scale. (see Micrositing Consistency Review (2013), Document Verification page, and p. 1)
25. Therefore, the independent, public inquiry that you must set up must investigate (i) the nomination by the proponent of Erwin Budde for the role of independent Environmental Representative to the project; (ii) the parts played in this nomination by ngh environmental and by Erwin Budde; (iii) the appointment of Erwin Budde by the Director-General of the Department of Planning; (iv) the use of the wording “independent of the design, construction and operation personnel” in condition 7.1 of the Project Approval, as determined by officials in the Department of Planning; (v) Erwin Budde’s misuse of his powers as independent ER to promote the interests of the proponent, of ngh environmental and of himself; (vi) the apparent conspiracy of the proponent, ngh environmental and Erwin Budde to violate the Project Approval by attempting to achieve the turbine re-locations without submitting the required modification application, thereby to increase the revenue of the proponent by illicit means; (vii) any complicity in this conspiracy by officials of the Department of Planning.
26. The above matters must be investigated for possible impropriety, and for possible corruption.
27. To return to the role of the Department of Planning and Infrastructure: in an e-mail to me (3.3.14) Azmeena Kelly, Manager for Compliance in DoPI, claims that the Department only became aware of the unauthorised turbine re-locations in November 2013. The implications of this claim are awesome.
28. November 2013 is over a year after construction of the wind farm began in September 2012. So, for more than a year, while the construction of the entire infrastructure for the wind farm was occurring, over a 25 kilometre site, only 200 kilometres from Sydney, the Department was unaware that 69 of the 73 turbine locations (95%) were being positioned in places not authorised by the Project Approval, in direct violation of the Project Approval. The Department was unaware that some turbine locations were being moved by over 50 metres, others by over 100 metres, and yet others by over 150 metres.
29. It can only be concluded that the Department had in place no effective system of its own for monitoring compliance during the construction phase of the wind farm. This is a colossal failure on the part of the Department of Planning.
30. The independent, public inquiry that you must institute must investigate whether this failure of the Department of Planning was sheer incompetence, or collusion with the proponent and/or any of the proponent’s agents to ensure for the proponent a lax and negligent system of oversight, thereby to promote the interests of the proponent, even to the extent of the possible violation of the Project Approval. The inquiry must also investigate whether any of the parties involved are guilty of impropriety or corruption.
31. A relevant fact in this connection is that neighbours of the Gullen Range Wind Farm informed the Department of Planning as early as July 2013 that, in their opinion, some turbine locations appeared to be in the wrong place. It would seem that these communications by neighbours were ignored by the Department. Was this incompetence or corruption?
32. It would appear that the only form of compliance monitoring that the Department set up was the appointment of the “independent” Environmental Representative Erwin Budde. As Mr Budde misused his powers to approve a deliberate violation of the Project Approval, contrary to his obligations as set out in condition 7.1 of the Project Approval, the appointment of Mr Budde must be judged another colossal failure of the Department of Planning.
33. The independent, public inquiry that you must institute must investigate whether that failure was merely incompetence, or possibly impropriety or corruption.
34. Since the Department became aware of the unauthorised turbine re-locations, in November 2013 – assuming that this claim is true – , the Department has failed to act properly in relation to this matter.
35. The Department has failed to order a halt to the construction of illegally located turbines. Since November 2013 about twenty turbines have been erected, almost all of which are illegally located. Your Department is thus allowing the proponent to continue to violate the Project Approval.
36. The Department has only requested the proponent to halt construction of 16 turbines that are alleged to be closer to homes. “Closer to homes” is not the relevant criterion. The criterion for halting construction must be illegal location. Moreover, by claiming that only 16 turbines have moved closer to homes, the Department ignores the fact that most, if not all the illegally moved turbines will have moved closer to some homes, because of the relatively high density of settlement in the area (about 60 non-involved residences within 2 km; 118 non-involved residences within 3 km).
37. Therefore, the independent, public inquiry that you must institute must investigate whether the Department’s failure to order a halt to the construction of all illegally located turbines is merely incompetence, or whether it is deliberate negligence, impropriety or corruption. Prima facie, it appears to be yet another instance of the Department ignoring what is right and proper, in order to benefit the proponent. Thus, it appears to be at least impropriety. The inquiry must also investigate the proponent’s continuing violation of the Project Approval, even after having been informed by the Department that the new turbine locations are unauthorised.
38. The Department has also failed, so far as I know, to order that all illegally located turbines not operate. According to a media release (17.12.13) issued by Goldwind (the owner of the proponent GRWF), the Gullen Range Wind Farm is connected to the power grid, and is already providing electricity for the “National Electricity Market”. The media release states: “The project has now started to contribute to meeting the Australian Government’s renewable energy target, delivering renewable energy into the Australian Electricity Market.”
39. Presumably, the facts reported in Goldwind’s media release imply that the turbines feeding electricity into the grid, thereby contributing to the Renewable Energy Target, must be earning Renewable Energy Certificates. If so, then those RECs are being earned illegally.
40. It is quite certain that illegally located turbines have been operating since late last year. Observation by neighbours confirms this.
41. The Commonwealth’s Renewable Energy (Electricity) Act 2000 (as amended) states in Part 2, Division 11, section 30E (3): “The Regulator may, by written notice, suspend the accreditation of an accredited power station if the Regulator believes on reasonable grounds that the power station is being operated in contravention of a law of the Commonwealth, a State or a Territory.” Since illegally located turbines of the Gullen Range Wind Farm have been operating, it is clear that their operation does contravene NSW law, namely, the Project Approval of the project. Therefore, any RECs earned by that operation must have been earned illegally.
42. In the circumstances, you as Minister ought to have informed the Clean Energy Regulator that the Gullen Range Wind Farm is in contravention of State law, and so not entitled to any RECs that it may have been earning. If you have not so informed the Clean Energy Regulator, that would seem to be dereliction of duty on your part.
43. Therefore, the independent, public inquiry that you must institute must investigate whether there has been any illegal earning of RECs, and if so, whether that constitutes actual fraud and/or corruption. The inquiry must also investigate the parts played by officials of the Department of Planning, and by the Minister.
44. The Department of Planning, it seems, has failed to dismiss Erwin Budde from his role as “independent” Environmental Representative. In an e-mail (21.3.14) to me, Azmeena Kelly states: “The proponent is currently seeking Planning and Infrastructure’s approval to engage a new Independent Environmental Representative for the Gullen Range Wind Farm.” I have asked Azmeena Kelly whether Erwin Budde has tendered his resignation to the Director-General, or been dismissed by the Director-General. But she has not responded to my query. I can only assume that Erwin Budde is still occupying the role. If so, then he should be dismissed immediately.
45. The independent, public inquiry that you must institute must investigate whether Erwin Budde has resigned or been dismissed by the Director-General. And if not, the inquiry must investigate whether the Department’s failure to dismiss Erwin Budde constitutes impropriety or corruption.
46. The Department of Planning has failed, so far as I know, to revoke all of Erwin Budde’s approvals, given since his appointment, and has failed, so far as I know, to review them.
47. Therefore, the independent, public inquiry that you must institute must investigate whether the Department of Planning has revoked, and is reviewing Erwin Budde’s approvals, given since his appointment, and if not, whether this failure constitutes impropriety or corruption.
48. It appears that your Department is willing that the proponent should now submit a modification application, according to section 75W of the EP&A Act, in order to gain retrospective legitimacy for the unauthorised turbine re-locations. Setting aside the fact that you and your officials have repeatedly asserted to neighbours that your government will not take any action that might be considered retrospective, I suggest to you that the willingness of your Department to consider a modification application now is outrageous and improper. The only proper course of action for your Department to take is to halt the construction and operation of all illegally located turbines, to dismiss Erwin Budde, to revoke and review all his approvals, to suspend all further assessment of the project, and to institute an independent, public inquiry into the whole matter. Not to do this is, I suggest, dereliction of duty. It manifestly helps to promote the illegitimate interests of the proponent.
49. Therefore, the independent, public inquiry that you must, albeit belatedly, institute must investigate whether the failure of your Department and yourself to undertake the proper courses of action described in point 48. above constitutes impropriety and/or corruption.
50. The independent, public inquiry that you must institute must not only investigate the conduct of the proponent GRWF, ngh environmental, Erwin Budde, and the Department of Planning generally. It must also investigate Goldwind Australia Pty Ltd, Xinjiang Goldwind Science and Technology Co. Ltd, the Director-General of the Department of Planning, the former Minister for Planning Kristina Keneally, and the current Minister for Planning, yourself.
51. Goldwind Australia Pty Ltd is the immediate owner of the proponent GRWF.
52. Xinjiang Goldwind Science and Technology Co. Ltd is the owner of Goldwind Australia Pty Ltd, and the ultimate owner of the proponent GRWF.
53. The independent public inquiry, therefore, must investigate whether, if there is any fraud, impropriety or corruption involved in the unauthorised turbine re-locations, that fraud, impropriety or corruption has been committed, to any extent, by Goldwind Australia Pty Ltd or by Xinjiang Goldwind Science and Technology Co. Ltd.
54. The Director-General of the Department of Planning, it must be assumed, approved the wording “independent of the design, construction and operation personnel” in condition 7.1 of the Project Approval; the Director-General appointed Erwin Budde; the Director-General has been in charge of the Department of Planning all through the period of the unauthorised turbine re-locations; he has failed to prevent the violation of the Project Approval from occurring; he has failed to ensure that his Department act properly since the unauthorised turbine re-locations became known (whenever that was).
55. The independent, public inquiry must, therefore, investigate the conduct of the Director-General of the Department of Planning.
56. The former Minister for Planning Kristina Keneally approved the wording “independent of the design, construction and operation personnel” in condition 7.1 of the Project Approval.
57. The independent, public inquiry must, therefore, investigate the conduct of the former Minister for Planning Kristina Keneally.
58. The current Minister for Planning, yourself, has presided over the Department of Planning for the whole period of the unauthorised turbine re-locations. You have failed to prevent the violation of the Project Approval from occurring. You have failed to ensure that your department act properly since the unauthorised turbine re-locations became known (whenever that was).
59. The independent, public inquiry that you must institute must, therefore, investigate your role in the whole affair.
60. The above are the grounds for you to institute an independent, public inquiry into the unauthorised turbine re-locations of the Gullen Range Wind Farm. I suggest to you that the grounds are overwhelming, since there is ample prima facie evidence of incompetence, negligence, and impropriety. Whether any of the actions or failures to act, described above, constitutes fraud or corruption in law must be for the inquiry to determine. But that there must be an inquiry is indisputable.
An inquiry into the unauthorised turbine re-locations is an opportunity to inquire into the whole matter of the Gullen Range Wind Farm, from proposal through assessment and approval to construction and operation. Neighbours of the wind farm, including myself, have, for years now, been providing you with evidence that the assessment and approval of the wind farm are unreliable and unsafe, that the wind farm is likely to be a disaster for the local community, and that the approval of the wind farm should be revoked, and reviewed in the light of the best acoustic, medical and other scientific evidence. I will not repeat those claims here or itemise the supporting evidence. You are already well informed of our views.
However, you have consistently rejected our requests for revocation and review on the ground that your government will not take any action that might be considered retrospective. And yet, your department is now preparing to assess illegal modifications to the project, in order to give retrospective legitimacy to those illegal modifications.
I suggest that it would be more appropriate to extend the terms of reference of the inquiry, which you will no doubt set up, to cover the investigation of all the real, potential impacts of the project, of all the real defects in the Environmental Assessment (2008), of all the real defects of assessment in the Major Project Assessment, and thus of all the grounds for judging the approval to be unreliable and unsafe.
Such an investigation would have to extend to issues of incompetence, negligence, impropriety and corruption, since the proponent and its agents, the Department, the Director-General and the former Minister for Planning were all involved in the proposal, assessment and approval of the project. If the inquiry into the unauthorised turbine re-locations were to find that any of the parties were guilty of misconduct, of whatever degree of gravity, that would be a prima facie ground for extending the investigation further, into the previous history of the project. For example, if your department were found to have been negligent in its oversight of the project from a bias towards the interests of the proponent, then it would not be unreasonable to suspect that such a bias might be the underlying cause of the many and obvious deficiencies in the Department’s assessment of the project.
The inquiry should also investigate the construction of the wind farm, since there has been ample evidence of the proponent disregarding the safety of local residents by the dangerous driving of its contractors, of violations of the Project Approval in relation to reversing alarms, and of the very low quality of the compliance monitoring by the Department of Planning.
The operation of the wind farm will fall under the matter of the unauthorised turbine re-locations, and should thus also be investigated.
Whatever else you do, Minister, you must do the following immediately:
- Order a halt to the construction of all illegally located turbines.
- Order that all illegally located turbines not operate.
- Dismiss Erwin Budde from his role as “independent” Environmental Representative to the project.
- Revoke all Erwin Budde’s approvals, given since his appointment, and order that they be reviewed (by independent reviewers, not by officials in your department).
- As the figures for the distances of movement of the turbine locations all come from the proponent (in the Micrositing Consistency Review, Appendix B), you must order that genuinely independent experts visit the Gullen Range site, take their own fixes on the co-ordinates of the existing turbine footings, and make their own calculations as to the real distances and direction of movement from the locations authorised in the Project Approval.
- Suspend all further assessment of the project until an independent, public inquiry into (at least) the unauthorised turbine re-locations reports.
I respectfully suggest to you that if you have any concern for the integrity of the planning and assessment process in NSW, and if you have any concern for your own reputation, you will institute such an independent, public inquiry as I have outlined above. Nothing less will be adequate to what can only be described as a debacle. The proponent and its agents have been contemptuous of the planning process in NSW, of the Land & Environment Court, of yourself and your department, of the neighbours of the Gullen Range Wind Farm, and of the NSW public generally. And your department appears to have been complicit in this, either through gross incompetence, or in conscious collusion. As very large sums of money are involved, the issue of corruption must be raised. Only an independent, public inquiry will now serve to resolve the matter.
I must inform you that I have already referred the matter of the unauthorised turbine re-locations of the Gullen Range Wind Farm to the NSW Ombudsman, and to the Independent Commission Against Corruption.
I am sending a copy of this letter to the Premier of New South Wales.
Yours sincerely
David Brooks
Chairman
Parkesbourne/Mummel Landscape Guardians Inc.