Farmers win wind farm battle, court rules turbines too noisy 

Victoria’s Supreme Court has ruled in favour of two Gippsland farmers who say a neighbouring wind farm has emitted unreasonable noise at their properties since 2015, in what their lawyer says is a first in Australia. [download the decision]

John Zakula and Noel Uren fought the Bald Hills Wind Farm for years in councils and courts, raising concern about the noise the turbines made near their homes in Tarwin Lower, about 170 kilometres south-east of Melbourne.

On Friday, Justice Melinda Richards ordered the wind farm operator to pay Mr Zakula and Mr Uren $168,000 and $92,000 respectively: half for noise disturbance, at $12,000 per year, and half in aggravated damages because the company’s conduct was “high-handed” towards them.

Wind farm operator Infrastructure Capital Group must also curtail its operations to stop the night-time noise disturbance at Mr Zakula’s house. If the company cannot fix the problem within three months, the noisy turbines near Mr Zakula’s house will be shut permanently at night.

The decision represents a win for individual community members amid a growing number of David-versus-Goliath cases across the country in the rapidly expanding wind farm sector.
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In her judgment, Justice Richards said renewable energy was a socially valuable activity and it was in the public interest that it continue.

“However, there is not a binary choice to be made between the generation of clean energy by the wind farm, and a good night’s sleep for its neighbours,” she said.

“It should be possible to achieve both.”

She concluded that noise from the 52 wind turbines had substantially interfered with the men’s enjoyment of their land, particularly their ability to sleep at night.

After replacing a floor-to-ceiling glass window with bluestone at his home, Mr Zakula said he still had to drive to a nearby beach and sleep there to avoid the noise.

Speaking to The Age last year, Mr Zakula described the sound from the turbines just over one kilometre from his home in Tarwin Lower as “like a roaring train”.

“Your body feels tight, your head feels in a compressive state. You just have to get out of the place,” he said.

Lawyer Dominica Tannock, who represented Mr Zakula and Mr Uren, said the decision was the first of its kind in Australia and would set a precedent for individuals challenging large corporations.

“This judgment will send shivers down the spine of corporate Australia and around the world,” she said.

A spokeswoman for Infrastructure Capital Group said: “We are currently absorbing the judgment and its implications, and therefore will not be commenting specifically about the ruling detail at this stage.”

Justice Richards decided that a noise assessment completed by Marshall Day Acoustics, on behalf of company in 2017, was “plainly flawed” and did not demonstrate the wind farm’s night-time noise was within its permit.

She was also critical of the wind farm operator’s conduct, and found the company never responded to either man’s complaints by trying to reduce wind turbine noise.
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“Rather, it denied that they had any cause for complaint, minimised their lived experience of the noise and treated them as hypersensitive trouble-makers,” said Justice Richards, who concluded the men were not hypersensitive to noise.

The wind farm’s response “at least doubled the impact of the loss of amenity each of them has suffered at their homes”, she added.

Justice Richards found the value of Mr Zakula’s property would decrease by $200,000 if the noise nuisance continued. The judge awarded a lesser damages payment to Mr Uren because he moved to a different property in 2018.

At least 14 of the state’s 34 wind farms have been built since 2015, as the Victorian government pursues its emissions reduction targets of 28 to 33 per cent by 2025, and 45 to 50 per cent by 2030. A further 22 are under construction or awaiting approval.

Unlike Mr Zakula and Mr Uren, challenges by farmer Hamish Cumming against the construction of a 215-turbine, $2 billion wind farm in the Golden Plains Shire, north-west of Geelong, were unsuccessful.

A court challenge against a 26-turbine wind farm by 25 residents from Hawkesdale, in south-west Victoria, was also unsuccessful in August.

Ms Tannock also represents Kevin Green, a resident of Numurkah, in northern Victoria, who says a GrainCorp oilseed refinery near his home has been emitting unpleasant odours and noise disturbance for years. He is preparing to file documents in the Supreme Court.