It’s a wind farm, not a mushroom farm.
But as the Supreme Court of Victoria heard last week, that old adage about keeping them in the dark and feeding them on horse manure, certainly applies to the relationship between the operators of the Bald Hills Wind Farm and neighbouring farmers.
What can only be described as an extensive cover-up to hide such things as evidence of the highly irritating noise coming from faulty turbine gearboxes, came to light during a searching cross-examination of key Infrastructure Capital Group (ICG) employee, James Arthur.
It revealed, among other things, how the owner-operator of the Bald Hills Wind Farm, the IC Group, tried to remove, avoid or hide evidence of non-compliance, even to the point of accepting “liquidated damages” payments because of “tonal audibility defects” with a majority of the Senvion turbine gearboxes, while at the same time denying the complaints of neighbours about exactly that issue and pursuing the State Government for compliance approval.
In a feature of Day 9 at the Supreme Court hearing last Friday, September 17, Georgina Costello, barrister for the plaintiffs, local landowners, John Zakula and Noel Uren, demonstrated how ICG had known about the “special audible characteristics” coming from the faulty turbine gearboxes, not only from the complainants, but also from Marshall Day Acoustics, their own acoustic experts, and the turbine manufacturers Senvion Australia, as early as April 2017, but by 2021, the problem has still not been rectified.
Since the demise of Senvion in May 2019, ICG has been working with Vestas Australian Wind Technology Pty to try to fix the problem which may ultimately require the replacement of the gearboxes in most, if not all 52 turbines.
In August 2020, Vestas provided a condition report to ICG which included the following details:
“The Bald Hills Wind Farm, completed in 2015, consists of 52 Senvion MM92 wind turbines. Since commissioning, Senvion had been working with the owner, Infrastructure Capital Group, ICG, to resolve a gearbox tonality issue present in the majority of the turbines which breached Senvion’s contractual noise warranty and generated noise complaints from the community.”
Ms Costello pursed Mr Arthur over Vestas’ statement:
“There’s still a tonal problem affecting the turbines today, isn’t there?” Ms Costello asked Mr Arthur.
Mr Arthur: “That’s correct, yes.”
C: “So for years, by August 2020, you’d been working with Senvion to try to resolve a gearbox tonality issue which had generated noise complaints from the community, hadn’t you?”
A: “Factually we did not think that statement was necessarily correct.”
C: “You didn’t think it was absolutely correct. Did you think it was probably correct, Mr Arthur?
A: “No, I did not.”
C: “Did you ask Senvion to resend you that slide (for the presentation) with the line about ‘generated noise complaints from the community’ removed?
A: “I certainly did.”
C: “That’s because you didn’t want anyone to read that, isn’t it?”
A: “No, because, as I said before, I didn’t think it was factually correct and the tonality issue Senvion and Vestas had investigated relates to the EPC contract and not the planning permit.”
Ms Costello had earlier demonstrated that by April 2017, Marshall Day Acoustics had also told the Bald Hills Wind Farm operators that there was a tonal noise issue with the gearboxes in the turbines.
It was around the same time as Mr Arthur acknowledged reading letters from John Zakula complaining “the noise was causing him considerable disturbance and seriously affecting his sleep” as well as “affecting his health, causing anxiety, stress, headaches and other issues”.
Mr Zakula said: “The noise is severe and at its worst at night and it’s continuous through the entire nights and days… exceeding night-time levels as specified in the planning permit,”
And he also specifically reported, in October 2016 and November 2016, that “there are significantly notable special audible characteristics”.
Earlier in the week, another neighbour of the windfarm, Don Jelbart, had independently described the sound from the turbines as like “a gearbox noise… a gearbox that needs attention, a grinding sort of mechanical noise”.
“You will be watching the television, you will have it cranked up to 35 or something and you can still hear the wind turbines over the top of it and the other night, it was a pity Your Honour didn’t visit us the night before you came down here, because with the dishwasher on and the telly on 34 I could still hear them,” he said referring to a site visit by Justice Richards on Wednesday, September 8.
In a letter to the previous wind farm manager, Matthew Croome, dated 13 April 2017, Stuart Mallinson of Senvion noted “multiple or harmonic tones coming from the turbines” describing it as “not ideal”.
Ms Costello: “Something of an understatement, Mr Arthur?”
Mr Arthur: “Well, we read this issue and from our perspective, under the planning permit, tonality penalties were applied and as a result, turbines were curtailed. So, we took note of this issue and we dealt with it appropriately.”
Ms Costello: “Now, a month later, so in May 2017, you’ve just seen some correspondence showing the tonal issues in April 17, a month later you reported full compliance with the permit to the minister, didn’t you?
Mr Arthur said he couldn’t recall.
Ms Costello challenged Mr Arthur over a report by Resonate Acoustics in August 2017, detailing how tonality exceeded the guarantee in 10 out of 11 turbines tested, triggering liquidated damages payments to ICG.
Ms Costello: “When did you tell the plaintiffs that your company had been getting liquidated damages because of a tonal audibility defect, Mr Arthur?
Mr Arthur: “I don’t believe we did.”
Ms Costello also referred to a query from the ANZ bank to Bald Hills in which they wanted to know when the gearbox problem would be fixed.
Ms Costello said a range of solutions were discussed in a report including this note by Mr Arthur: “We could also add that we don’t think it will be necessary to replace every single gearbox at the wind farm because it’s not impacting operational performance and we comply with the noise conditions of the planning permit”.
Ms Costello: “You said that, didn’t you?”
Mr Arthur: “That’s correct, yes.”
C: “So this tonal audibility problem wasn’t affecting the money you were making at the wind farm, was it?”
A: “That is correct, yes.”
C: “But it was affecting the sleep of the neighbours, wasn’t it?”
A: “I can’t answer that for sure.”
C: “You can answer that, can’t you, Mr Arthur?”
A: “According to the neighbours, that’s correct.”
Ms Costello went on to say that while the operators of the wind farm claimed to have successfully implemented a curtailment program, to reduce noise levels under certain conditions, it hadn’t been operating successfully in 2015, 2016 and 2017 when neighbours started complaining about the noise.
Ms Costello also demonstrated how uncertain wind speed measurement, due to interference from surrounding turbines, meant some turbines continued to operate in unrestricted mode, that is still making excessive noise.
Ms Costello said the wind speed data, used to measure noise levels at Mr Zakula’s house and Mr Uren’s house was taken from a recording mast (BH80) located 5 kilometres away – Mr Arthur agreed.
Ms Costello then drew Mr Arthur’s attention to a report by the world’s largest technical consultancy firm to the renewable energy industry, DNVGL, in which they recommended mast 80 be completely refurbished due to the “uncertainty” of the wind speed data.
Ms Costello: “So, you say you don’t believe that the wind farm is causing the noise that Mr Zakula and Mr Uren were hearing because you’ve relied on your acoustic report. That’s your position, isn’t it?”
M Arthur: “That’s correct, yes.”
C: “But the appendix to the very report you rely on describes uncertainty associated with the wind speed as high, doesn’t it?”
A: “It does, yes.”
C: “So the acoustic report might be wrong. Do you agree with that?”
A: “No, I disagree with that.”
C: “So, you’re not prepared to accept that Mr Uren and Mr Zakula are correct on the one hand, but you will not consider that your acoustic expert might be wrong. Is that your position?”
A: “Sorry, can you please clarify the question?”
C: “You won’t accept that Mr Uren and Mr Zakula are telling the truth, but you will accept that the acoustic conclusion is correct, despite the uncertainty. Is that your position?”
A: “I just can’t say for sure if the wind farm is causing the plaintiffs issues, but in my opinion the acoustic work is correct.”
Ms Costello went on to describe how the Wind Farm operators had changed its complaints’ handling process without telling the neighbours, effectively allowing them to ignore any repeated issues.
A company secretary for ICG said in an email (May 12, 2017): “We don’t want to engage with the complainants until the Marshall Day report confirming that the wind farm noise is compliant with the regulations is confirmed by the EPA”.
Mr Arthur agreed, that in consultation with “the relevant government department” and “the National Wind Farm Commissioner”, they didn’t believe they had to investigate repeat complaints and the policy was changed in 2018 without telling the neighbours until 2020.
Ms Costello: “So you didn’t tell the plaintiffs – Mr Uren or Mr Zakula – that you were going to change the complaints handling process so that you weren’t going to investigate repeat complaints, did you, until much later? That’s right, isn’t it?”
Mr Arthur: “That’s right, we didn’t tell them at the time, that’s correct.”
Ms Costello: “And poor old Mr Zakula kept writing to you, didn’t he, before you told him that you weren’t going to bother investigating repeat complaints. That’s right, isn’t it, Mr Arthur?”
Mr Arthur: “Yes, Mr Zakula was still writing, I believe, yes.”
In fact, ICG didn’t inform the complainants that they had affectively stopped acting on repeat complaints until May 2020.
It was around the same time as they were trying to change the post-construction noise monitoring program.
Ms Costello quizzed Mr Arthur over the noise monitoring program, noting that a submission to the South Gippsland Council, on behalf of the complainants pointed out that Marshall Day Acoustics had used a different site from the pre-construction testing for post-construction testing.
Mr Arthur agreed.
She also went on to say that Marshall Day and ICG had used average noise level data when seeking operational approval from the government rather than reporting intermittent loud noises that were often well in excess of that allowed under the government planning permit.
Ms Costello: “If you look at the green dots, being the actual noise levels recorded, you can see that on many occasions the noise at the Jelbart property is almost 60 decibels, even in low wind conditions. The MDA report ignored the outlying results which reflect the conditions experienced by the residents because the MDA report only dealt with averages. So that flaw in MDA’s approach was pointed out in the submission that you received in November 2018, wasn’t it?”
Mr Arthur: “That was pointed out, correct.”
C: “This point that I’m making to you now, and that was made in a submission that you received in November 2018, is that there’s an intermittent noise nuisance, a very loud intermittent noise occurring from your wind farm at the property of Mr Zakula. That’s what this graph shows, isn’t it?”
A: “I can’t comment on that concept, sorry.”
C: “Your experts weren’t advising you on whether there was a nuisance, were they, Mr Arthur?”
A: “Marshall Day were not providing expertise on that, that’s correct.”
C: “They were only advising you on permit compliance, weren’t they?”
A: “Yes, that’s correct.”
C: “But if Marshall Day is wrong about how the averaging works, then they’re wrong about whether there’s an intermittent nuisance at night, aren’t they?”
A: “I can’t comment on that statement.”
Ms Costello, said that while ICG didn’t ask Marshall Day to investigate the spikes in noise from the wind farm, James C Smith & Associates did undertake such research for the South Gippsland Shire Council ahead of the council ruling that there was indeed noise nuisance breaches under the Public Health and Wellbeing Act 2008. Mr Smith reported that he experienced the elevated noise levels at Mr Zakula’s house for himself.
But in a letter to the Minister for Planning, Richard Wynne, labelled “strictly confidential”, ICG ignored all these issues about the unreliability of wind speed data, the use of noise averaging instead of actual noise levels, the tonal noise problems, the managing of complaints and reports of elevated noise levels by experts in the field; to apply for and receive confirmation from the Minister that they were complying with their planning permit.
They received that confirmation from the Minister around the time, in April 2019, that the local council found there was an intermittent nuisance.
Council reached its decision, according to Ms Costello, based on what they described as credible and consistent noise logs, that there was a nuisance.
Ms Costello said the operators of the wind farm didn’t even tell the complainants that they were appealing the council’s decision, leaving them to apply to be joined in the appeal action that ultimately went to the Supreme Court.
The operators lost their appeal and the council’s decision still stands.
Ms Costello wrapped up her interrogation of Mr Arthur by summing up the number of actions ICG had taken to deny the complaints of the farming neighbours while shifting the goalposts, with the approval of the Planning Minister, most of the time without informing their neighbours about what they were doing.
After seeking clarification about what the operators might do to improve the amenity at Mr Zakula’s house, short of shutting down the Bald Hills Wind Farm, Mr Arthur said his firm was complying with the planning permit conditions, so there would need to be new noise-level targets set by the government for that to change.
The Supreme Court action, being brought by two neighbours of the Bald Hills Wind Farm, alleging alleging substantial and unreasonable interference with the use and enjoyment of their land, due to the noise coming from the wind farm, continues this week and is expected to run until Tuesday, September 21.
|Wind Watch relies entirely
on User Funding