Noel Uren and John Zakula v Bald Hills Wind Farm

Author: Richards, Melinda | Australia, Law, Noise

Translate: FROM English | TO English

Supreme Court of Victoria, VSC 145, 25 March 2022

TORTS – Nuisance – Private
– Wind farm operated by defendant
– Plaintiffs complain noise from wind turbines disturbs sleep
– Substantial interference with plaintiffs’ enjoyment of land
– Interference is intermittent and specifically affects plaintiffs’ ability to sleep undisturbed at night
– Social and public utility of wind farm
– Whether plaintiffs hypersensitive
– Nature and established uses in locality
– Whether wind farm an established use in locality
– Whether defendant took reasonable precautions
– Noise found to be substantial and unreasonable interference with plaintiffs’ enjoyment of land.

PLANNING – Permit compliance
– Relevance of permit compliance to private nuisance claim
– Noise conditions in planning permit apply New Zealand Standard 6808:1998 Acoustics – The Assessment and Measurement of Sound from Wind Turbine Generators
– Whether wind farm complied with noise conditions in permit
– Proper interpretation of noise conditions and NZ Standard
– Role of Minister in relation to permit compliance
– Minister responsible authority for noise conditions under Planning and Environment Act 1987(Vic)
– Not for Minister to determine permit compliance
– Defendant did not establish compliance with noise conditions in permit.

INJUNCTION
– Whether damages an adequate remedy for continuing nuisance
– Damages not an adequate remedy
– Injunction restraining defendant from continuing to permit noise from wind turbines to cause nuisance at night and requiring defendant to take necessary measures to abate nuisance
– Injunction stayed for three months.

DAMAGES
– Damages for past loss of amenity
– Aggravated damages
– High-handed conduct of defendant
– Exemplary damages not awarded.

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