Resource Documents: Law (51 items)
Documents presented here are not the product of nor are they necessarily endorsed by National Wind Watch. These resource documents are provided to assist anyone wishing to research the issue of industrial wind power and the impacts of its development. The information should be evaluated by each reader to come to their own conclusions about the many areas of debate.
Luke Pickering v. Christchurch City Council
Author: New Zealand Environmental Court
[1] In an Interim Decision dated 1 December 2016 the court granted consent to Windflow Technology Limited for a wind turbine at Gebbies Pass, Banks Peninsula, subject to conditions which would be confirmed in a final decision.
[2] This decision finalises the conditions of consent and, subject to any issues as to costs, resolves this appeal.
[3] By way of background this is an appeal against a decision to re-consent an existing wind turbine at Gebbies Pass, Banks Peninsula. The turbine was made operational in 2004 and, as we recorded in the Interim Decision, the residents in the neighbouring McQueen’s Valley have experienced noise from the turbine which has intruded upon their general enjoyment of their properties and for some, disturbed and disrupted their sleep.
[4] During the tenure of the original consent, Windflow did not undertake compliance monitoring within McQueen’s Valley to confirm whether the turbine was operating within the conditions imposed on its consent. Instead it relied on predicted noise levels in the valley based on measurements undertaken at the turbine site. We were greatly troubled by this and by the reliance on the turbine’s attainment of the noise limits in the New Zealand Standard 6808:201 O as this proved inimical to an enquiry into the experience of noise within McQueen’s Valley which, in contrast to the turbine site, has a very low sound environment.
[5] Disengaged with the persons living within the receiving environment, Windflow has been met with strong opposition to this application. To its credit, at the conclusion of the hearing Windflow proposed restrictions on the hours of operation of the turbine in response to the parties’ concerns, although it maintained these measures were not mandated by the evidence.
[6] The court reached a different view on the evidence. Noise from the turbine, including amplitude modulation, was a particular feature of this case because of its adverse effect on the amenity of the residents in the low background sound environment of McQueen’s Valley. Overall, we concluded the restrictions on the hours of operation and ceasing operation of the turbine if verification measurements identified penalisable levels of amplitude modulation or tonality were an appropriate response given Windflow’s duty under s 16 of the Resources Management Act 1991 to avoid unreasonable noise. …
APPROVED CONDITIONS
3. Hours of Operation:
i. The turbine shall not be operated on any day of the week between the hours of 1900 and 2200 except when the wind speed measured at the hub height of the turbine exceeds 10 metres per second [22 mph] …
6. Verification measurements
In terms of the verification measurements required by this condition: …
v. If the verification measurements indicate the sound power level at the reference position at hub height wind speed of 8 m/s is 65 dB or greater, or contains tonality or amplitude modulation which would be penalisable under NZS 6808:2010, the requirements of Condition 7 shall apply …
7. Restricted operations
i. Should the criterion of Condition 6(v) apply, operation of the wind turbine between 1700 and 0500 hours shall immediately cease …
8. Compliance monitoring
In conjunction with the verification measurements required under condition 6:
i. The consent holder shall undertake compliance monitoring and confirm that the wind turbine is operating within the noise limits [LA90(10min)] set out in the following table when assessed at the measuring points defined in condition 8(ii) below.
| Background Sound Level | 424 Gebbies Pass Road | McQueen’s Valley |
| >35 dB | Background + 5 dB | Background + 5 dB |
| 30-35 dB | 40 dB | Background + 5 dB |
| <30 dB | 40 dB | 35 dB |
Download original document: “Pickering v. CCC: Final Decision of the Environmental Court”
A: Under section 285 of the Resource Management Act 1991, the Environment Court orders:
(i) the Christchurch City Council is to pay the sum of $3,605.00 to Luke Pickering; and
(ii) Windflow Technology Limited is to pay the sum of $10,815.00 to Luke Pickering.
B: Under section 286 of the Resource Management Act 1991, the District Court at Christchurch is named as the court this order may be filed in for enforcement purposes (if necessary).
Grounds for the application
[7] Mr Pickering submits it was necessary for him to pursue an appeal because the Council’s decision to grant consent did not offer reasonable protection to the surrounding neighbourhood.
[8] He has found the entire process stressful, and needless to say very costly. From Mr Pickering’s point of view, he approached mediation in a conciliatory manner and his desire was to reach early, meaningful resolution. During that time, despite requests not to, Windflow continued to operate the turbine without consent.
[9] The need to carry on with the appeal has resulted in considerable financial costs for Mr Pickering and he seeks to obtain fair recognition of these costs.
Discussion and findings …
Windflow
[25] Pursuant to s 16 of the Act, every occupier of land and every person carrying out an activity on it is to adopt the best practicable option to ensure that the emission of noise from that land does not exceed a reasonable level. The experts advising the City Council and Windflow have assumed the adverse effect of noise is acceptable provided that the wind turbine complies with the guideline noise limits in the New Zealand Standard 6808. We disagreed. Whether the effect of noise below the guideline limits is adverse is sensitive to the receiving environment in which that the noise is experienced.
[26] Background sound levels in this deeply incised Valley are very low relative to the sound levels on the windy ridgeline where the turbine is located. Turbine noise is the dominant noise in the Valley. The turbine noise is clearly audible above background sound, even though the level of turbine noise does not exceed the guideline limits in the New Zealand Standard. The particular character of this noise and its unpredictability has had an adverse effect on general enjoyment of the properties and for some disturbed their sleep.
[27] Windflow’s and the City Council’s assumption that the effect of noise below the guideline limits is acceptable was inimical to an enquiry into the actual experience of noise within McQueen’s Valley. This assumption was challenged by Mr Lewthwaite, the expert called on behalf of Mr Pickering.
[28] Because Windflow (and the Council) relied on expert advice, we do not go as far as to say Windflow neglected its duty. That said, the offer to amend the proposed conditions by providing residents respite from the noise of the adverse effects came very late, on the last day of the hearing. This is a significant improvement on an offer evidently made to Mr Pickering prior to the commencement of the hearing recorded in a letter from Windflow’s counsel to lawyers acting for a second appellant who later withdrew.
[29] Knowing of the residents’ concerns, I find that Windflow failed to adequately explore the possibility of settlement where compromise could have been reasonably expected. Given the above, I am satisfied that there are grounds to exercise my discretion and order costs against Windflow.
The Council …
[32] [T]he decision of Commissioner appointed by the Council to hear and determine the resource consent application records the Commissioner’s unease with the noise and its characteristics. He thought it possible that localised topographical features may make turbine noise more intrusive than what modelling might otherwise indicate. He was also critical of the failure of the Council to independently review Windflow’s assessment of noise and its effects. The Commissioner’s intuition as to the cause of the adverse effect was sound.
[33] At this hearing the Council engaged an independent expert on the topic of noise. The public’s interest is at the forefront of the Council’s role but it did not make enquiry into the actual experience of turbine noise within McQueen’s Valley. The Council did not appreciate that the New Zealand Standard is a guideline and instead relied on its expert’s advice that the effect of noise below the guideline levels in the Standard is always acceptable. For these reasons I am satisfied that there are grounds to exercise my discretion and that it is fair in the circumstances that the Council recompense Mr Pickering for a share of the costs that he has incurred. …
Quantum
[35] Given the modest sum claimed I am satisfied that a contribution of 75% costs ($14,420.19) is appropriate here.
[36] I will order Windflow to pay 75% of those costs and the Council to pay 25%.
Download original document: “Pickering v. CCC: Decision of the Environment Court on Application for Costs”
Sample Lease Documents, Golden West Wind Energy Project, El Paso County, Colorado
Author: Nextera Energy
“Next Era Energy has destroyed our lives and has caused the death of 26 of our animals since Sept. 17, 2015 (when these blades started turning). Now something must happen as all we have seen is death. We are struggling to live here in our beautiful home. Sleep deprivation is killing us. We hope you can use these documents. We got them from our county government.”
- Option for Transmission Easement Agreement and Transmission Easement (pages 2-11)
- Wind Project Neighbor Easement Agreement (pages 12-23)
- Grant of Electrical Line, Communication Line, Road and Wind Rights Easements (pages 24-42)
- Grant of Road Easement and Easement Agreement (pages 43-55)
- Road and Transmission Line Easement Agreement (pages 56-74)
- Windpark Easement Agreement (pages 75-97)
Download original document: “Sample Lease Documents, Golden West Wind Energy Project, El Paso Country, Colorado”
Memorandum of lease
Author: Upland Prairie c/o Apex Clean Energy
1. Lease. For the term and upon the provisions set forth in that Wind Energy Lease of even date herewith (the “Effective Date”) between Landlord and Tenant (the “Lease”), all of which provisions are specifically made a part hereof as though fully and completely set forth herein, Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord for Wind Energy Purposes, that certain real property (the “Property”) located in Clay County, Iowa, as more particularly described in Exhibit “A” attached hereto, together with all rights of ingress and egress and all other rights appurtenant to the Property, as more particularly described in the Lease. Pursuant to the Lease, Tenant has the sole and exclusive rights to use the Property for Wind Energy Purposes.
2. No Interference. The Lease requires Landlord, during the Term of the Lease, not to cause nor permit any restriction or interference with: (a) the siting, permitting, construction, installation, maintenance, operation, replacement, or removal of Wind Facilities; (b) the flow of wind, wind speed or wind direction over the Property; (c) access over the Property to Wind Facilities; or (d) any other activities of Tenant permitted under the Lease.
3. Term. The term of the Lease shall expire eight (8) years after the Effective Date, if not extended or sooner terminated as provided in this Lease. Tenant may at its sole discretion extend the term of this Lease for an additional thirty (30) year term, with the further option to extend the term for two (2) additional ten (10) year terms.
4. Notice. This Memorandum is prepared for the purpose of giving notice of the Lease and in no way modifies the express provisions of the Lease. In the event of any conflict between the terms and provisions of the Lease and this Memorandum, the Lease shall control. This Memorandum shall continue to constitute notice of the Lease and all amendments thereto, even if the Lease is subsequently amended.
5. Successors and Assigns. The covenants, conditions and restrictions contained in the Lease shall run with the land and be binding on the successors and assigns of both Landlord and Tenant. Tenant and any transferee shall have the right throughout the Term to transfer, convey, sublease or assign this Lease or any interest in this Lease, the Property or the wind facilities to any person or entity without the consent of Landlord.
6. Ownership of Wind Facilities. Tenant shall at all times retain title to the Wind Facilities and shall have the right to remove them from the Property at any time. Landlord shall have no ownership, lien, security or other interest in any Wind Facilities installed on the Property and Landlord expressly waives, relinquishes and quitclaims any lien or security interest in and to the Wind Facilities or any other real or personal property of Tenant, whether arising at law or in equity.
7. No Severance of Wind Energy Rights. Landlord shall not assign or otherwise transfer an interest in the wind energy rights to the Property, or a portion thereof, separate from fee title to such real property, without Tenant’s consent which Tenant may withhold in its sole discretion.
8. Right of Reentry. Upon expiration or termination of the Term, Tenant shall have a license to enter onto the Property for eighteen (18) months following termination to restore the Property and for other activities as set forth in the Lease.
9. Transmission and Access Easement. If a utility requires and/or Tenant requests an easement in perpetuity with respect to one or more of the rights granted to Tenant pursuant to the Transmission and Access Easement, then Landlord shall grant the utility and/or Tenant, as applicable, such perpetual easement which covers the portion of the Property occupied by the utility’s and/or Tenant’s permanent roads, overhead and underground electrical and communications lines, collection and/or transmission equipment, as applicable, upon the terms set forth in the Lease.
As used herein, the term “Transmission and Access Easement” means, collectively, Tenant’s (i) exclusive right to construct, install, lay down, erect, improve, place, replace, remove, relocate and operate permanent roads, overhead and underground electrical and communications lines, collection and transmission equipment on the Property, and (ii) right of access more particularly described in Section 4.3 of the Lease.
Download original document: “Memorandum of lease”
Wind farm participation and support agreement
Author: Apex Clean Energy
Owner is the owner of that certain tract of real property located in Van Wert County, Ohio …
1. Setback Waiver.
1.1 To the extent that any applicable law, ordinance, regulation or permit establishes, or has established, minimum setbacks from the exterior boundaries of the Property (or any structures thereon) for Windpower Facilities constructed on Wind Farm Property, Owner hereby waives any and all such setback requirements (the “Setback Waiver”); provided however, Grantee agrees not to construct a Wind Turbine within One Thousand Three Hundred Twenty Feet (1,320’) of any occupied residence located on the Property (as measured from the edge of the base of the Wind Turbine to the exterior of the closest foundation of any occupied residence on the Property as of the date hereof) and not to allow the blade of any Wind Turbine to overhang any boundary of the Property.For the avoidance of doubt, this Agreement does not grant to Grantee the right to construct Windpower Facilities on the Property. …
11. Confidentiality. Owner shall maintain in confidence all information pertaining to the financial terms of or payments under this Agreement, whether disclosed by Grantee or discovered by Owner, unless such information is in the public domain by reason of prior publication through no act or omission of Owner or its employees or agents. Owner shall not publish or otherwise disclose such information to others except to accountants, lawyers, or other professionals who receive such information under an obligation of confidentiality; buyers of the Property; lenders that have a security interest in the Property; or family members who agree to keep such information confidential. The provisions of this Section 11 shall survive the termination or expiration of this Agreement.
12. Wind Energy Lease Agreement. In the event that Owner and Grantee enter into a Wind Energy Lease Agreement or other similar instrument whereby Owner grants Grantee the exclusive right to install Wind Turbines and/or Windpower Facilities on the Property, then this Agreement shall be superseded by such instrument and this Agreement and all payment obligations hereunder shall terminate as of the effective date of such instrument. The foregoing shall not obligate either party to enter into any Wind Energy Lease Agreement or other similar instrument unless it determines in its own best interest to do so.
FEE SCHEDULE
Grantee shall make the following payments to Owner during the Term:
(1) within thirty (30) days of the Effective Date of this Agreement, a one-time payment of Five Hundred and No/100 Dollars ($500.00); AND
(2) Upon the Commercial Operations Date of the Phase in which the Property is a part (as determined by Grantee in its reasonable discretion), an annual payment equal to one of the following, as applicable:
(B) One Thousand and No/100 Dollars ($1,000.00) if any boundary of the Property is within one thousand one hundred twenty-five feet (1,125’) of the nearest Wind Turbine (measured horizontally from the tip of the turbine’s nearest blade at 90 degrees from the turbine tower to the nearest adjacent property line of the Property) on such date; OR
(C) Five Hundred and No/100 Dollars ($500.00) if neither subsection (A) nor (B) above apply.
The annual payment due hereunder, shall be paid by Grantee within thirty (30) days after the Commercial Operations Date and then annually within thirty (30) days after each anniversary of the Commercial Operations Date until all of the Wind Turbines in the Phase of the Wind Farm of which the Property is a part are decommissioned.
Download original document: “Wind farm participation and support agreement”
