Eastern Cape game reserves challenge wind farm approval in court

An endangered Martial Eagle drinking from a dam in the Kruger National Park. A nest of this species has been confirmed at the E.Cape wind farm site. At least 12 Martial Eagles have already been killed by wind farms in South Africa and BirdLife SA warns that this mortality rate is unsustainable for the species. Photo: John Yeld

• Kwandwe Private Game Reserve, Wilderness Foundation Africa and the Indalo Association are challenging government approval of the 25-turbine Albany Wind Energy Facility near Makhanda.
• They claim the Department of Forestry, Fisheries and the Environment made unlawful and irrational decisions, including approving the project without final turbine layouts and an environmental management programme for its operation.
• Part of their challenge is for 11 turbines to be removed from a six-kilometre buffer zone around an endangered Martial Eagle nest, arguing the wind farm violates bird protection standards.

Authorisation for a new Eastern Cape wind farm near Makhanda is being challenged in the High Court, with the applicants claiming unlawful, irrational, unreasonable and unconstitutional decision-making by the Minister of Forestry, Fisheries and the Environment (DFFE) and the department.

Two applications, making essentially the same arguments in voluminous court papers, have been filed to review and set aside DFFE’s approval of the wind farm and Minister Dion George’s dismissal of their appeals against the authorisation of the planned facility, formally called the Albany Wind Energy Facility (or Albany WEF).

One of the review applications is being brought jointly by the 30,000ha Kwandwe Private Game Reserve and Wilderness Foundation Africa, an environmental group started by Dr Ian Player.

A second application has been filed by Indalo Association, a collective of nine private game reserves in the Eastern Cape that is the management authority for the proclaimed Indalo Protected Environment, spanning more than 90,000ha across three municipalities.

Although Kwandwe is a member of Indalo, it is bringing its own application. It states in its court papers that it will be “materially and significantly negatively affected” by the proposed Albany wind farm facility.

Indalo says the wind farm will adversely impact ecotourism, an important contributor to the local economy and employment.

The main respondents in both applications are: the minister and senior officials who issued the wind farm’s environmental authorisation, and the developer, Albany Wind Power (Pty) Ltd.

DFFE spokesperson Peter Mbelengwa confirmed to GroundUp that both applications would be opposed. “The Department is in the process of compiling the record of decision,” he said.

A spokesperson for Albany’s parent company, EDF Renewables (now trading as EDF Power Solutions), confirmed receipt of the court papers and said it would also be opposing the applications. They declined further comment.

The wind farm

The Albany Wind Energy Facility is located on municipal land currently managed as commonage.

The wind farm’s initial design was for 66 wind turbines, but during the impact assessment process, this was first reduced to 43 turbines, and then further reduced to the currently approved number of up to 25 turbines (with a maximum power output of 297MW).

The turbines will be arranged in a narrow band along a prominent ridge (Botha’s Ridge), spread over some 20km along high-lying ground, and will be visible from many locations even beyond 30km in places.

The approved wind turbines planned for Albany will be up to 215 metres high. In its court papers, Indalo describes these turbines as “massive” and nearly as high as South Africa’s tallest building, the 234-metre-high Leonardo in Johannesburg.

Turbine hubs and turbine blades will be visible from “numerous” public nature reserves and private game reserves, says Indalo.

Both applicants state in their papers that no explanation was given for the reductions in the number of turbines. They argue that the siting of each individual pylon is crucial, not simply the number of turbines.

Albany’s own expert consultant found that despite the reduction in the number of turbines, the visual impact of the project remained high and could not be mitigated.

However, in his appeal decision, George states he is aware that Albany reduced the number of turbines “as a mitigation measure to address the visual concerns raised by interested and affected parties, including the appellants”.

Environmental management lacking

The environmental assessment process for the project started in 2018 and in March 2022 DFFE issued an environmental authorisation (EA). However, this did not include an approved final layout plan for all the turbines, and there was also no approved environmental management programme (EMPr) for the facility’s operation. The applicants argue that these two omissions constitute unlawful and irrational decision-making – a major part of their challenge.

In October 2023, then DFFE minister Barbara Creecy issued an interim appeal decision, directing Albany to finalise the site layout and the EMPr. The wind farm was also required to “ground-truth” (a term relating to verification through direct investigation and observation) the EMPr through 12 specialist reports.

In January last year, the final layout showing a reduced 25-turbine layout, the EMPr and ground-truthing reports were released for comment during a short 30-day public participation process.

The applicants participated in this process but argue that none of their comments were taken into account or reflected in the final EMPr and site layout. Also, reports by their own specialists contradict the ground-truthing reports in many respects – including as regards visual impacts, the impact on birds and groundwater, and on cultural and socio-economic aspects.

On 11 December 2024, George dismissed their appeal. He signed an 89-page decision confirming environmental authorisation for the wind farm and approving the environmental management programme and the 25-turbine site layout plan, provided that all mitigation measures were adhered to.

The final paragraph of the minister’s explanation for his appeal decision states: “I am satisfied that the specialists and the EAP [environmental assessment practitioner] considered the impacts of the proposed development efficiently and effectively. Also, I am of the view that the proposed mitigation measures outlined in those specialists’ studies and EIAR [environmental impact assessment report] as well as its EMPr will prevent the impacts. Where they cannot, the impacts will be minimised and remedied.”

Review application

In its review application, Indalo asks the Court to set aside George’s appeal decision and order him to reconsider their appeal and take “a properly informed and procedurally fair” decision.

Alternatively, it wants both the appeal decision and DFFE’s environmental authorisation for the wind farm to be set aside, and for the department to reconsider Albany’s application for environmental authorisation, also in a proper and procedurally fair manner.

Kwandwe requests a similar court order but includes alternative relief should its main application not succeed. This is for the removal of nine turbines in the wind farm’s western cluster and four turbines in the central cluster “because of their high or very high visual sensitivity”, and the removal of 11 turbines that fall within the circular six-kilometre no-go buffer zone of the Martial Eagle nest.

Each of these turbines constitutes a potential no-go area or fatal flaw in the approval, Kwandwe argues.

Eagles in danger

One key argument raised by the applicants is that the wind farm poses a grave threat to endangered bird species – particularly the Martial Eagle – and that the bird impact assessment of the project was flawed.

They say the approved layout of turbines does not comply with industry standards or with Birdlife South Africa-recommended best-practice parameters for bird impact assessment work at proposed wind farm developments in South Africa. These require that any current Martial Eagle nest site – such as that found at the Albany site – must be protected from potential death and disturbance through the imposition of a circular “no-go” turbine-free buffer with a radius of 6km.

Some 55 bird species are known to be at high risk from wind farms, and seven of these – all regional “Red Data” species – are found at the Albany WEF site.

They are the Martial Eagle (Endangered), Black Harrier (Endangered), Yellow-billed Stork (Endangered), Crowned Eagle (Vulnerable), Secretary Bird (Vulnerable), Verreaux’s Eagle (Vulnerable) and Blue Crane (Near-threatened).

The Martial Eagle is listed as “Endangered” in the newly published Regional Red Data Book of Birds 2025, which states that the South African population of this species is estimated at between only 950 and 1,100 mature individuals, and that population declines of around 60% over a period of three generations are suspected.

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