Supreme Court says Bald Hills ‘nuisance’ decision stands 

The Supreme Court of Victoria handed down its decision on Tuesday, August 18, in the cases of the Bald Hills Wind Farm Pty Ltd versus South Gippsland Shire Council, and the BHWF v five local landowners and found entirely in the council’s favour, and that of the landowners.

Justice Melinda Richards found that the operators of the Bald Hills Wind Farm had not established that the April 2019 resolution of council was affected by any jurisdictional error.

As a result, their decision, that there is an “intermittent nuisance of the kind alleged” by the nearby landowners and acknowledged by the council, stands.

The decision is, however, open to appeal for 28 days.

Lawyer for the aggrieved landowners, Dominica Tannock of DST Legal in Abbottsford said today that the ruling by the Supreme Court was an emphatic vindication of the decision by the council and a substantial decision for the landowners and the operation of the facility.

Ms Tannock said the operators of the Wind Farm not only lost their challenge of the council’s decision but were also likely to be liable for the considerable legal costs associated with the proceedings.

Her Honour also handed down that she proposes to award costs against the plaintiff, that is Bald Hills Wind Farm Pty Ltd in both instances although the court will be prepared to hear any party which seeks a different order as to costs if they lodge an application by Friday, August 28.

In respect of South Gippsland Shire Council ratepayers, the legal costs that would have been paid by the council to its lawyers, Maddocks, are likely to be now be met by Bald Hills.

Ms Tannock said she believed the decision today would also have a bearing on the Supreme Court action next year, in which the owners of the neighbouring rural properties are claiming aggravated and exemplary damages against Bald Hills Wind Farm Pty Ltd over what they say is an illegal level of noise created by some of the 52 turbines.

In her general disposition of the case between BHWF Pty Ltd, the council and the landowners, Justice Richards said: “As none of the grounds of review have been made out, there is no basis to make the declaration sought by Bald Hills. There is therefore no need for me to consider whether declaratory relief should be refused on discretionary grounds, as was submitted for the complainants. The proceeding must be dismissed.”

A spokesperson for the landowners said today that it was an important decision for those affected by the wind farm noise, one that he believed left the operators very little scope for appeal.

The South Gippsland Shire Council has also welcomed the decision, as a vindication of the council’s processes but has again raised what it believes are inconsistencies between the Planning and Environment Act and the Public Health and Wellbeing Act under which wind energy facilities operate.

Council’s response

South Gippsland Shire Council has successfully defended Supreme Court proceedings brought against it by the Bald Hills Wind Farm Pty Ltd. Five local residents were also co-defendants to the case. The decision is open to appeal for a period of 28 days.

The application sought a judicial review of Council’s resolutions of March and April 2019 that there existed an intermittent nuisance caused by the operation of the Bald Hills Wind Farm. Council’s findings of 2019 included that the matter was better settled privately.

The court was asked to quash the Council’s decision and consider whether Council failed to have regard to mandatory considerations in finding that a nuisance existed and whether Council disregarded material essential to performance of its statutory task.

South Gippsland Shire Council’s Chair Administrator, Julie Eisenbise welcomed the Supreme Court decision which dismissed the Wind Farm’s application and proposed Orders to pay Council’s costs.

“Noise emissions from wind farms are complex matters that Local Government is rarely called upon to adjudicate. I am pleased that Council’s processes have withstood the scrutiny of the Supreme Court and I remain hopeful that the other parties can now settle this matter privately.

“As it currently stands wind farm operators may be complying with their obligations under the Planning and Environment Act but not the nuisance provisions of the Public Health and Wellbeing Act. We believe that this is something that Statutory Authorities need to resolve to avoid the situation that has occurred in South Gippsland, happening elsewhere,” said Ms. Eisenbise.

[Download PDF of ruling]