Damages in the millions and an injunction placing restrictions on the operation of the 52-turbine Bald Hills Wind Farm, especially at night.
These are among the possible outcomes when the Supreme Court hands down its decision in the case of Uren v Bald Hills Wind Farm Pty Ltd on Friday this week.
The owners of the wind farm, south of Tarwin Lower, the Infrastructure Capital Group (ICG), might also get off scot-free if found by Justice Melinda Richards to have been operating the wind farm within the law and the conditions of their planning permit.
But you’d think that highly unlikely after ICG failed to disclose that it had received a liquidated damages payout of $11.7 million from the manufacturer for its noisy turbines while at the same time telling both the State Government and neighbours that a particularly irritating noise coming from their faulty gearboxes did not exist.
It’s an important decision.
For the plaintiffs John Zakula, a landowner and neighbour of the Bald Hills Wind Farm since its inception, and Noel Uren, a former landowner at Walkerville, there’s a lot at stake.
On just the issue of loss of sleep alone, the evidence presented in a trial last September and October supports a finding that on at least 150 nights-a-year the Plaintiffs were woken up by the wind farm noise.
Even if you take the $2250 awarded for two days’ loss of sleep in a precedent case (McFadzean 2004), for 150 nights-a-year over six and a half years for Mr Zakula ($1.1 million) and three and a half years for Mr Uren ($590,000), that’s almost $1.7 million for loss of sleep alone.
Then there’s the loss of farm value, loss of enjoyment of their property and the on-going impact of the nuisance noise, almost unabated by BHWF Pty Ltd since the facility became operational in May 2015.
The plaintiffs have also submitted to the courts that there should be “a significant sum” ordered by way of aggravated damages for the way the operators failed to deal with the neighbours’ reasonable complaints about the excessive noise.
There must also be exemplary damages, they say.
“The conduct of the Defendant has been high handed, and in contumelious disregard of the Plaintiffs’ rights to sleep peacefully in their own homes. The Defendant must be punished for this conduct, to deter repetition by it, and to stand as a warning to other noise-producing businesses, including other wind farm operators,” the Plaintiffs said in their closing submission on October 8, 2021.
The awarding of such damages would have implications for the operation of other windfarms in Australia and for other future on-land projects, potentially forcing all new wind farms offshore.
The court could also order the operators of Bald Hills to “abate the nuisance forthwith” which might require BHWF Pty Ltd to shut down the offending turbines during certain wind conditions, speed and direction.
There is also the issue of costs for a lengthy Supreme Court trial.
|Wind Watch relies entirely
on User Funding