When is a noise limit not a noise limit?
Hall & Wilcox | April 7 2022 | www.lexology.com
In a landmark ruling, the Victorian Supreme Court has held that noise emitted from the Bald Hills Wind Farm constituted a nuisance to its neighbours, even if those emissions had been found to comply with the conditions in its planning permit.
Further, and of cause for concern and uncertainty for the industry is the finding that newer, more conservative noise limits imposed in newer wind farm permits were a better indicator of what is a reasonable standard for judging whether an emission is unreasonable for the purposes of a nuisance claim.
This shifting of the goal posts puts all existing wind farm operators at risk of common law claims of nuisance, even where there is compliance with noise limits in an existing approval.
We discuss the findings of Uren v Bald Hills Wind Farm Pty Ltd [2022] VSC 145, and their implications for the wind industry. [download the decision]
Background
A group of residents first asked South Gippsland Shire Council in 2016 to investigate and remedy alleged noise nuisance from the wind farm pursuant to the Council’s statutory responsibilities under the Public Health and Wellbeing Act 2008 (Vic).
After an investigation, in 2019 the Council resolved that it was satisfied that there existed a nuisance of the kind alleged by the complainants, but that it only existed intermittently and that Council considered the matter was better settled privately.
Bald Hills Wind Farm unsuccessfully sought judicial review of the Council’s resolution, with the proceedings being dismissed in 2020.
Relevantly, the wind farm permit imposed an operational noise limit of the greater of either:
The permit also provided that any exceedance of these level for 10% of the night time period amounted to a breach of the limits.
What was the claim?
In line with the Council resolution, two of the neighbouring residents to the Bald Hills Wind Farm, Noel Uren and John Zakula (plaintiffs), brought the proceedings and sought remedies from the operator of the wind farm for common law private nuisance. Private nuisance requires demonstration that there has been interference with another person’s use or enjoyment of their land in way that is both substantial and unreasonable.
The Court held that these criteria were satisfied in the context of noise emitted from the wind turbines at night, awarding the plaintiffs:
(1) an injunction preventing the wind farm operator from continuing to permit noise from the wind turbines at night, and to take necessary measures to abate the nuisance; and
(2) damages totalling $260,000.
This decision will give wind farm operators significant cause to pause and reassess their approach to noise compliance assessment and compliant management processes.
Complaint management
Since its commencement in 2015, the wind farm had received numerous complaints from neighbouring residents and landowners in relation to noise emissions from the wind turbines. In 2015 for example, the Bald Hills complaint register recorded 50 complaints. Although the wind farm operator investigated the complaints of residents in 2015, it concluded that the noise levels at the plaintiff’s properties were consistent with the noise conditions in its planning permit and, thus, took no remedial action.
The wind farm’s response to complaints came under scrutiny in the hearing and formed part of the Court’s considerations about whether or not the operator had acted reasonably in responding to the complaints.
Complaint management and compliance have generally been considered separate matters in wind farm noise management plans. That is, complaints do not always equate to non-compliance. While a complaint should be investigated and compliance with noise levels at the relevant time determined and communicated to the complainant, if compliance is found the complaint is usually considered to be resolved. The Court’s findings throw doubt on this approach and
The decision
The Supreme Court of Victoria found in favour of the neighbouring residents and determined that noise nuisance had been emitted from the wind farm during the relevant times.
Findings on key issues in dispute were as follows.
Did noise emissions cause a substantial and unreasonable interference with the plaintiff’s use and enjoyment of their land?
Noise from the turbines on the wind farm amounted to ‘a substantial, albeit intermittent, interference with the acoustic amenity of the plaintiff’s properties at night’.
The evidence showed that Mr Zakula’s sleep was disturbed on hundreds of occasions and Mr Uren’s sleep on around one hundred occasions between 2015 and 2018. The interference was ongoing for Mr Zakula;
Were noise emissions in compliance with the noise conditions in the permit held by Bald Hills Wind Farm?
The Court held that the operator had not established that the sound received at either Mr Uren’s house or Mr Zakula’s house complied with the noise conditions in the permit at any time.
Although the wind farm operator argued that it complied with its permit, the court was critical of the measurement techniques used by the wind farm’s noise consultants, stating:
‘(the) method for assessing compliance with condition 19(a) was not the method prescribed by the NZ Standard, properly interpreted. MDA initially did not assess compliance at Mr Zakula’s house or at Mr Uren’s house, but at other nearby locations. The findings of the noise assessment reports MDA produced for Mr Zakula’s house in March 2017 and for Mr Zakula’s house in June 2017 were plainly flawed’
This criticism may be unfair – it is often the case that consultants need to use alternative proxy locations for testing due to extraneous background noise at certain locations causing interference with measurements or in circumstances where wind farm opponents refuse access to land.
The Court was also critical of the consultant’s methodology for determining compliance and their interpretation of the NZ Standard including in relation to:
The Court was critical of the fact that it did not hear evidence from the original consultant, MDA, about its methodology. It was perhaps an error in the case strategy for the wind farm operator that MDA was not called to give evidence about its methodology, rather reliance was placed on an independent review witness.
In any event, this criticism will need to be reviewed by the consultants and wind farm operators and a response or ‘defence’ to it determined and put in place in future assessments of compliance so as to minimise risks of further claims.
Was compliance with the noise conditions in the permit held by Bald Hills Wind Farm was relevant in assessing whether Bald Hills Wind Farm caused a nuisance?
Importantly, the Court held that, even if the wind farm operator had demonstrated compliance with the noise limits in the permit, this would not have been determinative of reasonableness in the law of nuisance.
The Court questioned the use of the NZ Standard in the defendant’s planning permit stating, ‘I do not doubt that [the NZ standard] reflected the then current state of knowledge about the effect of wind farm noise on neighbouring residents, and acceptable noise limits. However, more than 20 years have passed since the NZ Standard was adopted, and it is not the only benchmark for assessing whether the noise emitted from a wind farm is reasonable’.
The Court also noted that the NZ Standard had been superseded by the 2010 NZ standard, which imposed a 35dB noise limit in high amenity areas (this was 5 dB lower than the limit stated in the permit). Additionally, the Court stated that other jurisdictions within Australia had prescribed 35dB as an acceptable wind farm noise limit in most circumstances. The plaintiffs also relied on evidence that newly approved wind farms in Victoria were subject to a 35dB noise limit.
The Court found that where ‘higher standards’ exist in more modern planning permits, this is a better indication of the relevant standard by which to judge whether a noise is unreasonable, rather than relying on current permit conditions.
Was it relevant to consider the social and public interest value in renewable energy?
The Court commented that renewable energy generation at wind farms is a socially valuable activity and it is in the public interest to continue. However, it stated that there should not need to be a binary choice made between the generation of clean energy by a wind farm and a good night’s sleep for its neighbouring residents. Wind farm operators must strive to achieve both.
Was the wind farm an established use and did this thereby excuse the wind farm from a nuisance claim?
The wind farm operator argued that the interference arose from an activity that was an ‘established use’ in the locality and was, thus, not a nuisance.
However, the Court held that the wind farm could not be classified as an ‘established use’ in the locality because of the finding that compliance with the noise conditions in the permit was not demonstrated. That is, the wind farm had to be lawfully operating to be ‘eligible’ to be considered an established use.
Whether Bald Hills Wind Farm took adequate precautions to avoid or minimise the interference?
The Court found that, although some precautions were taken to reduce noise levels at other locations, this did not achieve compliance with the permit at the plaintiffs’ properties. Further, that the wind farm operator could have taken further precautions including:
The Court found that the manner in which Bald Hills dealt with the plaintiffs’ reasonable and legitimate complaints of noise, over many years, at least doubled the impact of the loss of amenity each of them suffered at their homes. This is a significant finding and sounds a warning bell to the industry to ensure the focus on community relations and interactions with neighbours and complainants is handled sensitively and effectively and that it is given a high priority.
Implications for the industry
The Court’s decision, while hailed as a victory for opponents or wind farms, presents numerous challenges for the established practices at many existing and previously permitted wind farms including:
This article was written with the assistance of Sheruni Fernando, Law Graduate.
URL to article: https://www.wind-watch.org/news/2022/04/07/when-is-a-noise-limit-not-a-noise-limit/