Evidence provided by a farmer claiming his property values dropped after a wind farm was built nearby cannot be used in a Victorian court case.
The revelation came on the sixth day of a potential landmark case that saw more than 100 pages of handwritten notes about wind farm noise produced as new evidence.
Noel Uren and John Zakula are seeking damages from the Bald Hills Wind Farm near Tarwin Lower in the state’s south-east, claiming the wind turbine noise is a nuisance.
Mr Uren gave evidence this week in the Supreme Court civil trial about four properties he and his brother owned that bordered the wind farm.
The blocks were sold in 2015 and 2016 for a total of $3.53 million.
Mr Uren stayed living on one property as a tenant until March 2018.
He claims his total property value dropped by about $200,000 due to the wind farm being built nearby in 2015.
He is seeking that amount in damages along with other damages because of the excessive noise from the turbines.
Mr Uren’s evidence to substantiate the drop in farm value was from the sale of nearby properties.
However on Tuesday, Justice Melinda Richards ruled this evidence was inadmissible because he relied on the sale of nearby land rather than the written evidence of an expert.
“The value of land and the effect of the wind farm is a matter of expert opinion; it’s not a matter where the court can piece together this on its own,” Justice Richards said.
“Evidence of nearby properties in June 2019 is not logically probative and whether the prices when they sold in 2015 and 2016 was depressed by wind farm noise.”
The wind farm’s legal team sought to remove this claim of property value loss from the plaintiffs’ list of damages.
And Mr Uren’s barrister admitted it “seems unlikely any better evidence will emerge” to substantiate the claim to property value loss.
Pages of new evidence found
In another development, 120 pages of Mr Zakula’s handwritten notes were given to the court.
They logged the noise of the wind turbines from November 2015 to October 2018.
The notes contained descriptions of the noise – some with expletives – such as “sounds like an aeroplane in the back yard”.
And when he was asked why he had “written some profane words” on the log sheets, Mr Zakula said that by October 2016 he had become frustrated at the lack of action by the wind farm to his sustained complaints.
“I had been recording these log sheets quite vigilantly for nearly 15, 18 months and I am basically recording the same information over and over again, with no results.”
Lawyers for the wind farm quizzed Mr Zakula about why he did not produce boxes of handwritten pages, which had been stored in his spare room, earlier in the discovery process.
“I just didn’t think anything of the handwritten ones,” Mr Zakula said
He explained he transferred the information from the handwritten log sheets into a spreadsheet or onto a complaint letter to the wind farm on his computer.
“I prepare my records in a formalised fashion; that’s how I normally present my material of my complaints to Bald Hills Wind Farm,” he said.
“I failed to tell my solicitor that I had these handwritten log sheets. I apologise to the court if I’ve caused any inconvenience.”
Under cross-examination by barrister Albert Dinelli, Mr Zakula admitted that not all the complaint letters and the handwritten notes were consistent.
Neighbour denies wind farm letter
Another witness who appeared on Wednesday was farmer Don Fairbrother, who along with his wife, Dorothy, were the first plaintiffs in a case against the wind farm.
They withdrew from the case before it reached trial after accepting a financial settlement from the wind farm operators.
Mr Fairbrother gave evidence for the remaining plaintiffs – Mr Uren and Mr Zakula – and under cross-examination from barrister Edward Batrouney admitted he had been against the wind farm being built from 2002.
But he denied he had written a letter to The Australian newspaper more than a decade ago that criticised the wind industry.
“This dud industry is never going to save the world. In the meantime, it’s destroying bird species already under pressure,” said the letter, which had his name and was dated September 26, 2007.
But Mr Fairbrother told the court he had never written a letter to the editor of The Australian.
“I never wrote that, it’s not mine.”
However, he offered that some of the text of the letter might have been taken from a submission he had written to various inquiries about the Bald Hills Wind Farm.
He confirmed he was concerned about the impact of bird life, including the orange-bellied parrot, which he often found on his farm.
Mr Fairbrother and his wife testified that the wind farm noise interrupted their sleep and they often got headaches when the noise was loud, with Mrs Fairbrother saying she regularly took medication to help with this.
The trial is expected to run until the middle of next week.
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