March 30, 2022
Australia, Opinions

Victorian wind farm ordered to pay damages and curb night noise nuisance – Implications for wind farms in Australia

Victorian Wind Farm Ordered to Pay Damages and Curb Night Noise Nuisance – Implications for Wind Farms in Australia | Kirstie Richards, Luke Salem, K&L Gates | National Law Review | Tuesday, March 29, 2022 | www.natlawreview.com

OVERVIEW

On 25 March 2022 the Victorian Supreme Court issued its long awaited judgment in the ongoing Bald Hills Wind Farm nuisance proceedings in Uren v Bald Hills Wind Farm Pty Ltd [2022] VSC 145. Justice Richards held that operational noise the Bald Hills Wind Farm was causing a nuisance to two local residents at night time and ordered the operator of the Bald Hills Wind Farm to:

This article outlines the decision and its likely implications for other wind farms in Australia.

WHAT WAS IT ABOUT?

The Bald Hills Wind Farm consists of 52 turbines which has been operational since 2015. The planning permit issued for the wind farm contains detailed conditions regulating noise impacts, including operational noise limits applying to both daytime and night time operations. The operational noise limits under the planning permit applied the New Zealand Standard ‘Acoustics – The Assessment and Measurement of Sound from Wind Turbine Generators’ (NZ 6806:1998) (NZ Standards) and relevantly:

The Bald Hill Wind Farm has experienced a level of ongoing opposition from some members of the local community, including ongoing noise complaints by a number of nearby residents who experienced noise impacts, including sleep disturbance.

The wind farm operator engaged acoustic specialists to investigate the noise complaints. The investigation determined that the operational noise levels from the wind farm were compliant with the noise limits applying under the planning permit. Accordingly, the wind farm operator took no remedial action in response to the noise complaints.

As a result, the local residents complained to the local Council and asked them to take action under the Public Health and Wellbeing Act 2008 (Vic) (PH&W Act). The PH&W Act relevantly adopts the common law definition of nuisance and requires the Council to:

The Council ultimately found that operational noise from the Bald Hills Wind Farm constituted intermittent nuisance but determined that it should take no action under the PH&W Act as the matters were better settled privately.

Accordingly, it advised the complainants of their rights to either commence proceedings in private nuisance or bring proceedings in Victorian Civil and Administrative Tribunal (VCAT) regarding any alleged non-compliance with the operational noise limits under the planning permit.

Notwithstanding that the Council determined to take no action, and that it was always open to the neighbouring landholders to take private action, the operator of the wind farm commenced proceedings in the Supreme Court of Victoria. The operator challenged the legal validity of the Council’s decisions that operational noise from the Bald Hills Wind Farm intermittently constituted nuisance within the meaning of the PH&W Act. These proceedings were unsuccessful and the Supreme Court upheld the legal validity of the Council’s findings that operational noise from the Bald Hills Wind Farm was causing intermittent noise nuisance.

Following this, in February 2020, a number of individual neighbouring landholders commenced separate proceedings for the tort of nuisance against the operator of the Bald Hills Wind Farm. A claim in private nuisance can be made where there is a substantial and unreasonable interference with a person’s land or enjoyment of it. While some of the local residents resolved their claims with wind farm operator prior to trial, two of local residents proceeded with the case.

The Court heard evidence that night time operational noise from the wind turbines caused one resident to replace one of his bedroom windows with bricks, sleep in a car at the beach, and sleep at friends’ houses to try and avoid having his sleep disturbed.

WHAT DID THE COURT DECIDE?

The Court applied established principles at common law to determine that operational noise from the wind turbines at night amounted to a private nuisance because it caused a substantial interference with the two residents’ use and enjoyment of their land.

In particular, the Court found that:

  1. been subject to the more stringent noise limits which generally apply to Australian wind farm; and

  2. been able to demonstrate compliance with these more stringent noise limits, the operational noise may have been regarded as being a reasonable interference only, with no actionable nuisance arising.

  1. determine background noise levels for the purpose of determining compliance with the noise limits;

  2. assess night time operational noise compliance; or

  3. objectively assess special audible characteristics for the purpose of applying the 5 dBA penalty.

The generation of renewable energy by the wind farm is a socially valuable activity, and it is in the public interest for it to 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. It should be possible to achieve both.

As a result, the Court:

It is not yet clear whether the wind farm operator will seek to appeal the decision.

IMPLICATIONS FOR WIND FARM OPERATORS

The decision highlights the difficulties in balancing the public benefits of wind farm projects against the need to prevent undue interference with neighbouring resident’s enjoyment of their properties.

While the judgement is somewhat of a cautionary tale, the decision should not be regarded as “opening the floodgates” for nuisance claims against wind farms across Australia as the operational noise conditions imposed on the Bald Hills Wing Farm planning permit are relatively unique and less stringent than those which apply to most Australian wind farms.

Further, it is important to note that:

  1. the wind turbines in question were found to have breached the sound warranties given by the turbines supplier and in that sense were defective; and

  2. the approach of the wind farm operator to the noise complainants contributed to the outcome of the case.

That said, to minimise the risk of noise nuisance claims, and to ensure appropriate stakeholder management, we strongly recommend that wind farm operators:

Louise Chen also contributed to this article. 


URL to article:  https://www.wind-watch.org/news/2022/03/30/victorian-wind-farm-ordered-to-pay-damages-and-curb-night-noise-nuisance-implications-for-wind-farms-in-australia/