Landmark Australian Decision: Supreme Court Orders Night Wind Farm Shutdown

Written by stopthesethings.com on March 30, 2022. Posted in Current News

In a world-first, neighbours tormented by wind turbine noise have won a landmark victory, forcing the operator to shut down all of its wind turbines at night-time.

Yesterday, Justice Melinda Richards of the Victorian Supreme Court slapped an injunction on a wind farm because the noise it generates has been driving neighbours nuts for seven years, and the operator has done absolutely nothing about their suffering.

Her Honour also ordered damages, including aggravated damages for the high-handed way in which the operator has treated its victims. Since March 2015, the community surrounding the Bald Hills wind farm have been tortured by low-frequency noise and infrasound generated by 52, 2 MW Senvion MM92s.

Neighbours started complaining to the operator about noise, straightaway. But, as is their wont, the operator simply rejected the mounting complaints and carried on regardless.

Locals, however, were not perturbed. Instead, they lawyered up. Engaging the tough and tenacious Dominica Tannock.

Starting in April 2016, Dominica went after the South Gippsland Shire Council which, under the Victorian Public Health and Wellbeing Act 2008 has responsibility for investigating nuisance complaints and a statutory obligation to remedy all such complaints within its municipal district.

The locals won that round, when Justice Richards found the wind turbine noise generated constituted an ‘unreasonable nuisance’ as defined by the Public Health and Wellbeing Act.

Following that victory, Dominica launched civil proceedings in the Supreme Court, based on an action in common law nuisance. There were 13 plaintiffs in all – when the action started there were 6 plaintiffs, who were later joined by another 7.

Over time, Dominica was able to settle the claims of 11 of her clients on very favourable (confidential) terms – STT hears that those who settled pocketed figures of more than $2m for each affected household.

However, two of the plaintiffs, Noel Uren and John Zakula rejected the operator’s monetary overtures, because they were furious with the way that the neighbours have been treated and, accordingly, determined to take the matter all the way.

After a bruising piece of litigation (where the operator withheld critical evidence from the plaintiffs and its acoustic consultant was caught out ‘filtering’ – ie destroying – rafts of noise data) and a hard-fought trial, these thoroughly courageous gentlemen have established what has been known, all along: everyone has a legally enforceable right to sleep soundly at night in their very own homes; and the wind industry has been destroying that right with impunity, for far too long.

What Noel Uren and John Zakula have achieved is not just notable and noble, it reflects the adage about evil prevailing when good men do nothing.

Refusing to be cowered by the operator’s threats, bullying and intimidation, these men did something and, accordingly, every wind industry victim owes them a debt of eternal gratitude for what they have achieved and placed on the public record. At last. At long last. Vindication. Sweet vindication.

What their efforts have also brought to the surface, is the monstrous corruption that is part and parcel of the wind industry, which has compromised the integrity of every political and government institution in this Country, and anywhere in the world it operates.

At one point during the trial, the National Wind Farm Commissioner (a Federally appointed wind industry stooge) approached the judge’s Chambers directly, without the knowledge of the plaintiffs’ lawyers, and offered his “assistance” to Justice Richards, including an offer to provide her with knowledge and information about how ‘wonderful’ wind turbines really are. Justice Richards was not amused.

The judgment is the first of its kind, where plaintiffs have established that the noise generated from wind turbines constitutes an unreasonable interference with the use and enjoyment of their homes and, therefore, an actionable nuisance, at common law.

The decision is, therefore, of immeasurable significance to any of the wind industry’s victims, anywhere in the common law world; Australia, New Zealand, Canada and the UK, for starters. And, no doubt, it will be seized on by our American cousins in the US.

The full judgment appears here: Uren v Bald Hills WF [2022] VSC 145

At 148 pages it is a thumping analysis of the evidence and issues, and well worth careful consideration. However, set out below are the key extracts of Justice Richard’s reasons, interposed with our commentary on the factual background and legal principles in issue, appearing in square brackets. Note that the extracts below do not contain the citations to the legal authorities or evidence. For that, you need to see the PDF of the judgment linked above. Please enjoy and share widely the judgment in Uren & Zakula v Bald Hills Wind Farm Pty Ltd [2022] VSC 145

OVERVIEW

The Bald Hills wind farm is located near Tarwin Lower in South Gippsland, Victoria. Since it began operating in 2015, the wind farm has received many complaints from neighbouring residents and landowners about noise from the wind turbines. In this proceeding, two of those neighbours, Noel Uren and John Zakula, seek remedies from the operator of the wind farm, Bald Hills Wind Farm Pty Ltd, for common law nuisance.

From about 1994, Mr Uren lived in a house at 1550 Buffalo-Waratah Road, Tarwin Lower on land that he owned together with his brother, Bruce Uren. The Uren brothers farmed sheep and cattle on that land, and on another property to the north at 87 Kings Flat Road, Tarwin Lower, together the Uren properties. Their partnership dissolved in mid-2015 and the Uren properties were sold.

The southern property, on which Mr Uren was living, sold on 18 March 2016. By agreement with the new owner, Mr Uren continued living in the house until December 2018, when he moved into the town of Tarwin Lower.

Mr Zakula bought his property at 860 Buffalo-Waratah Road, Tarwin Lower in June 2008. He described the land that he bought as a ‘cow paddock’, on which he planned to establish an organic farm. Mr Zakula established windbreaks of native vegetation around the property, and planted olive, fruit and nut trees.

While there was no house on the property when he bought it, there was a planning permit to build a dwelling. Mr Zakula designed and built an energy efficient house on the property, which was completed during 2011. He moved into the house in late 2011 and has lived there since.

The Minister granted planning permit TRA/03/002 on 19 August 2004, which allowed the use and development of land ‘for a wind energy facility for the generation and transmission of electricity from wind generators, together with associated buildings and works’. The permit allowed the construction of a wind farm of 52 turbines of up to 110 metres each, and included detailed conditions concerning acoustic amenity.

The permit prescribed noise conditions, which applied the noise limits and methodology set out in the New Zealand Standard 6808:1998 – Acoustics – The Assessment and Measurement of Sound from Wind Turbine Generators (NZ Standard).

Construction of the wind farm commenced in about 2012 and was completed during 2015. The first of the 52 turbines started generating electricity in February 2015, and the wind farm was fully operational by September 2015

In February 2020, Mr Uren, Mr Zakula and ten of their neighbours commenced this proceeding. The other plaintiffs resolved their claims against Bald Hills before the trial of the proceeding, and were removed as parties. Six of the former plaintiffs — Don and Dorothy Fairbrother, Don and Sally Jelbart, Stuart Kilsby and Alexander McDougall — were called as witnesses by Mr Uren and Mr Zakula.

The issues for determination in the proceeding, and my conclusions in relation to each issue, are as follows.

Nuisance

(1) Has noise from wind turbines on the wind farm operated by Bald Hills caused a substantial interference with the plaintiffs’ use and enjoyment of their land?

Yes. Noise from the turbines on the wind farm has caused a substantial interference with both plaintiffs’ enjoyment of their land — specifically, their ability to sleep undisturbed at night, in their own beds in their own homes. The interference has been intermittent and, in Mr Zakula’s case, is ongoing. While both Mr Uren and Mr Zakula have been annoyed by the sound of the turbines during the day, it has not substantially interfered with their enjoyment of their properties.

(2) If yes to question 1, does the burden shift to Bald Hills to establish that the interference was reasonable?

It is unnecessary to decide this question, because the evidence enables me to make the necessary findings of fact in relation to most issues. Bald Hills accepted that it bore the burden of proof on the one issue on which I may have been left in doubt, which is whether the sound from the turbines received on the plaintiffs’ land at all times complied with the noise conditions in the permit.

(3) What is the nature and extent of the interference?

The interference does not involve property damage or personal injury. It is an interference with the acoustic amenity of the plaintiffs’ properties, in particular their ability to sleep undisturbed in their beds at night. The interference is substantial, albeit intermittent, and in Mr Zakula’s case is ongoing.

(4) Has the sound from the turbines received on the plaintiffs’ land at all times complied with the noise conditions in the permit?

Bald Hills has not established that the sound received at either Mr Uren’s house or Mr Zakula’s house complied with the noise conditions in the permit at any time. Permit compliance is not determined by the Minister, who is the responsible authority for the permit. While the Minister can initiate enforcement action, it is for the relevant court or tribunal to determine permit compliance.

Bald Hills did not demonstrate compliance with condition 19(a) of the permit, either by the 2021 assessment of noise monitoring data undertaken by its acoustic expert, Christopher Turnbull, or his review of MDA’s noise assessments. Mr Turnbull’s method for assessing compliance with condition 19(a) was not the method prescribed by the NZ Standard, properly interpreted. MDA initially did not assess compliance at Mr Zakula’s house or at Mr Uren’s house, but at other nearby locations. The findings of the noise assessment reports MDA produced for Mr Zakula’s house in March 2017 and for Mr Zakula’s house in June 2017 were plainly flawed.

Neither Mr Turnbull nor MDA demonstrated compliance with condition 19(c), in relation to the night period. Condition 19(c) provides a ‘hard measure’ for protecting sleep and requires assessment on individual nights.

In addition, neither Mr Turnbull nor MDA properly applied condition 19(b) of the permit in assessing compliance with conditions 19(a) and 19(c).

(5) If so, what is the relevance of compliance with the noise limits in the permit?

Demonstrated compliance with the NZ Standard and condition 19 of the permit would not necessarily have established that the noise that from time to time disturbed Mr Uren’s and Mr Zakula’s sleep was reasonable. Significantly, the NZ Standard sets a limit on the extent to which wind turbine noise may increase continuous underlying noise levels, assessed over a long period.

It is not directed to intermittent loud noise from wind turbines, and does not provide a way of assessing whether a wind farm produces unreasonably annoying noise in certain weather conditions, or on a particular night.

(6) What is the social and public interest value in operating the turbines to generate renewable energy?

The generation of renewable energy by the wind farm is a socially valuable activity, and it is in the public interest for it to continue. However, there is not a binary choice to be made between the generation of clean energy by the wind farm, and a good night’s sleep for its neighbours. It should be possible to achieve both.

(7) Is either of the plaintiffs hypersensitive to noise from the turbines?

No. Neither Mr Zakula nor Mr Uren is hypersensitive to wind farm noise.

(8) What is the character of and the nature of established uses in the locality of the plaintiffs’ land?

Both properties are in a relatively quiet and remote rural locality. Sounds associated with farming activities are typical of the area during the day, but do not cause intrusive noise at night. Traffic on nearby roads is light and usually creates limited disturbance. The wind farm itself cannot be taken into account as an established use in the locality, because it has not established compliance with the noise conditions in the permit or Div 5, Pt 5.3 of the Environment Protection Regulations 2021 (Vic).

(9) What precautions has Bald Hills taken to avoid or minimise the interference?

Bald Hills has not demonstrated compliance with the noise conditions in the permit at Mr Uren’s house or at Mr Zakula’s house at any time. While Bald Hills investigated and responded to their numerous complaints, it did not take any remedial action to reduce the noise from wind turbines received at either property.

(10) Could Bald Hills reasonably have taken any other precautions?

Bald Hills could reasonably have taken at least two further precautions to reduce the noise levels at the plaintiffs’ homes. It could have implemented selective noise optimisation of nearby turbines. It could also have remedied the gearbox tonality issue that was identified by MDA in December 2016.

(11) Having regard to the answers to questions 3 to 10, has the interference with the plaintiffs’ use and enjoyment of their land been unreasonable?

Yes. Noise from the wind turbines on the wind farm has amounted, intermittently at night, to a substantial and unreasonable interference with the plaintiffs’ enjoyment of their land. The wind farm noise has been a common law nuisance at both properties.

(12) If yes to question 11, will noise from the turbines continue to cause a substantial and unreasonable interference with Mr Zakula’s use and enjoyment of his land?

Yes. The nuisance is ongoing at Mr Zakula’s property.

This is taken from a long document. Read the rest here: stopthesethings.com

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