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Wind farm noise may be a nuisance – but compliance remains a critical issue  

Credit:  By Heidi Asten, Partner, Melanie Debenham, Partner, Madeline Simpson, Special Counsel, Rebecca Davie, Senior Associate with Henry Materne-Smith, Solicitor | Herbert Smith Freehills LLP | April 12, 2022 | hsfnotes.com ~~

The Victorian Supreme Court has found that intermittent noise from Bald Hills Wind Farm at night was a nuisance, and awarded damages, aggravated damages in light of the past management of the complaints, and an injunction (stayed for 3 months) to prevent further noise nuisance.

The case is significant in confirming that intermittent noise may be a nuisance even if compliant with the regulatory regime, although the specific permit conditions for Bald Hills and different regulations that now apply to wind farms in Victoria mean that this decision cannot be directly translated to other circumstances.

Uren v Bald Hills Wind Farm Pty Ltd [2022] VSC 145 (25 March 2022)

Snapshot

  • The decision underlines that operational wind farm noise may constitute a common law nuisance where it impacts on a neighbour’s ability to sleep, including where the nuisance is intermittent. Intermittent nuisance may arise even where the wind farm is complying with the regulatory regime and permit conditions.
  • However critically in this case, the Court found that the wind farm had not demonstrated compliance with the regulatory regime, including because the Court did not agree with the interpretation of the applicable acoustic standard relied on by the wind farm’s experts. Although compliance will not necessarily mean that there is no nuisance, the Court noted that it would have carefully considered this if compliance over time could be demonstrated.
  • Each jurisdiction around Australia has its own regulatory regime, with its own challenges. There is no nationally consistent noise standard. However similar complaints are arising in other jurisdictions. Nationally, the Bald Hills decision highlights that non-compliance with the applicable regulation and noise standards creates a dual risk of statutory liability as well as private nuisance actions.
  • Similar cases are being brought in other jurisdictions. In Queensland, for example, proceedings currently before the Supreme Court involve a neighbour alleging common law noise nuisance and breach of a condition of a development approval as well as misleading and deceptive conduct on the part of the acoustic engineering firm engaged by the wind farm owner to undertake noise predictions and modelling as part of its application for approval. The matter is still before the court and yet to be decided.
  • Neighbour agreements remain an important project tool to address statutory and common law liability in relation to wind farm impacts. This case is a good reminder to check neighbour agreements and also to carefully investigate noise complaints.

Some key aspects of the decision and implications are explored further below.

What happened?

Noise complaints regarding Bald Hills Wind Farm had arisen since 2015 when the wind farm commenced operation. A complaint under the Public Health and Wellbeing Act 2008 led to a resolution of Council in 2019 that there existed a nuisance of the kind alleged by the complainants, but that the nuisance existed only intermittently. Of the further steps available under the Public Health and Wellbeing Act, the Council resolution found that the matter was better settled privately. The wind farm was unsuccessful in seeking judicial review of Council’s resolution.

The current proceeding related to a claim for common law nuisance, with 10 of the 12 plaintiffs resolving their claims before the trial.

Having found that there was a substantial and unreasonable interference with the acoustic amenity of the two plaintiffs’ properties, in particular their ability to sleep, and that this was a nuisance, the Court awarded:

  • To the first claimant who no longer resides near the wind farm, $46,000 (general damages for loss of amenity) plus $46,000 (aggravated damages);
  • To the second claimant, $84,000 (general damages for loss of amenity) plus $84,000 (aggravated damages);
  • An injunction restraining Bald Hills Wind Farm from continuing to permit noise from wind turbines on the wind farm to cause a nuisance at the second claimant’s house at night, and requiring it to take necessary measures to abate the nuisance. The wind farm has 3 months to remedy the issue before the injunction takes effect. The Court noted it would have awarded additional damages if it had not granted the injunction.

Role of acousticians and the Court

A key element was interpretation and application of the New Zealand Standard 6808:1998 Acoustics – The Assessment and Measurement of Sound from Wind Turbine Generators (1998 Standard), which applies to operational noise from Bald Hills Wind Farm. Some of these issues are different under the updated 2010 version, which applies to many Victorian wind farms.

Relevantly, the Court scrutinised the methodology and findings of early compliance reporting and the current compliance assessments. The Court held that the proper interpretation of the 1998 Standard is for a court or tribunal adjudicating a question of permit compliance; it is not a matter for acoustic experts. The assessment by the wind farm’s expert did not accord with the Court’s interpretation of the 1998 Standard, and the Court found that the assessment did not demonstrate that the wind farm was in compliance.

Role of the Minister for Planning and the Court

Bald Hills argued that, because the permit condition required compliance with the 1998 Standard ‘to the satisfaction of the Minister for Planning’, the Minister is the ‘final arbiter’ of compliance with condition 19 of the permit and ‘the Court could not go behind the Minister’s expression of satisfaction that the wind farm had demonstrated compliance’. In this case, Bald Hills had received a letter from the Minister stating that the wind farm was compliant at a particular point in time.

The Court found that the permit condition reference to the Minister’s satisfaction ‘indicates that the Minister is to be the responsible authority for monitoring and enforcing compliance’ with the condition, but that the Tribunal or Court is still the arbiter of compliance, rather than the Minister.

Application of the 1998 Standard and permit conditions in achieving the purpose of protecting sleep

A key complexity arises from the approach of the 1998 Standard in assessing compliance with noise limits over time, compared with a specific condition in the Bald Hills planning permit that addresses compliance at night. The Court was concerned about intermittent loud noise interrupting sleep, even if overall compliance with the 1998 Standard was achieved.

Partly this complexity arises from the specific permit conditions applicable to Bald Hills.

Compliance is not necessarily a defence to nuisance

The Court held that demonstrated compliance with the 1998 Standard and the planning permit ‘would not necessarily have established that the noise that from time to time disturbed [the claimants’] sleep was reasonable’ and therefore incapable of being a nuisance. Crucially, conclusions about average sound levels over time do not ‘negate’ variable and intermittently loud noise from the wind farm.

The Court’s approach indicates that particular instances of loud noise can still be substantial and unreasonable interference, therefore creating a nuisance.

However, the Court did state that if the wind farm had been able to demonstrate permit compliance at either dwelling the Court would have found that relevant (but ‘not determinative’) in assessing whether there is a nuisance. The Court was also influenced by there now being updated methodology in the 2010 NZ Standard and lower night noise limits in other States. The Court stated that it would nevertheless ‘also have taken into account that it is a matter of judgment whether 40 dB or 35 dB is an acceptable noise limit for rural dwellings at night, and that Victoria is the only Australian state that has adopted the higher limit.’

Relationship and response to claimants is important

The Court was critical of the way in which the successive wind farm operators had responded to the complaints over time. Ultimately, the Court found that the manner in which Bald Hills has dealt with the plaintiffs’ complaints warranted an award of aggravated damages.

The approach to tonality was a key issue and the Court was critical of the length of time the wind farm had known about the tonality issue but not actioned a long term remedy.

Further, a number of ex-plaintiffs gave damaging evidence for the plaintiffs, despite having settled their own claims. Among other things, it led the Court to find that the plaintiffs were not hypersensitive or over-reacting.

What does this mean for other wind farms in Victoria?

Many Victorian wind farms are required to comply with the updated 2010 NZ Standard, rather than the 1998 Standard, and many wind farm permits have specific conditions that will bring nuance to assessment of compliance and nuisance in each case. The nuisance complaint and investigation process used in Bald Hills ceased to apply to operational wind farm noise from July 2021. All Victorian wind farms are also now required to comply with the Environment Protection Act 2017 and Environment Protection Regulations 2021 (the EP regime).

Under the EP regime, compliance with the ‘general environmental duty’ is required, in summary to minimise the risk of harm to human health including psychological health from noise, so far as reasonably practicable. An operator of a wind farm also has a duty to ensure that operational noise complies with the noise limits in the relevant standard, and to manage and review wind farm noise. Compliance with these requirements is a way that operators can comply with the general environmental duty.

The EP regime also provides that where wind farm noise is not compliant with the applicable noise standard, this is ‘unreasonable noise’ as defined in that regime. Of relevance then, where the 2010 NZ Standard is expressed as having been designed to ensure ‘reasonable’ amenity at neighbour receptors, and a wind farm can demonstrate compliance such that the noise is not ‘unreasonable’ under the EP regime, it remains to be determined whether, and in what circumstances, a Court would nevertheless conclude that wind farm noise is ‘unreasonable’ in a way that would constitute a common law nuisance.

Wind farm operators should therefore continue to comply with the applicable noise standard, and review and manage wind farm noise in accordance with the EP regime. Aspects of the Court’s decision regarding methodology may have implications for how the 2010 Standard is applied for other wind farms and should be carefully considered.

Noise management plans to be required under the EP regime include a requirement for addressing noise complaints, and this investigation and response will continue to be important where applicable.

What does this mean for other States?

The Bald Hills decision is not binding on other States but it sets an interesting precedent.

In NSW, the regime for assessing and regulating wind farm impacts is different. In respect of noise impacts, there is less weight on the NZ Standard, with noise assessment being undertaken in accordance with the South Australian EPA Wind Farms Environmental Noise Guidelines 2009. There is a strong reliance on individual negotiations and neighbour agreements. That said, the legal principle is the same – that compliance with regulatory requirements and conditions of consent does not preclude common law nuisance claims.

Similarly, in Queensland, the outcome in Bald Hills means that wind farm operators should carefully investigate any noise nuisance complaints. Even if fully compliant with relevant conditions of a development approval issued under the Planning Act 2016 (Qld) for the wind farm, the specific noise restrictions contained in the State Code 23 – Wind Farm Development and the provisions of the Environmental Protection (Noise) Policy 2019 (Qld), this may not necessarily be a defence to a claim for common law nuisance. Operators should take steps to address the complaint and ensure that the wind farm is not causing a substantial and unreasonable interference with the acoustic amenity of a complainant’s property to mitigate this risk of a successful claim for common law nuisance.

Wind farm operators should also follow the Mt Emerald Wind Farm proceedings currently before the Queensland Supreme Court and consider what any decision ultimately means for their operations. In these proceedings, a neighbour alleges common law noise nuisance and breach of a condition of a development approval as well as misleading and deceptive conduct on the part of the acoustic engineering firm engaged by the wind farm owner to undertake noise predictions and modelling as part of its application for approval.

In Western Australia, wind farm developments typically have few nearby neighbours and therefore face less acute risks in relation to operational noise. Nevertheless, non-compliance with the regulatory regime and noise standards presents dual risks pursuant to the offence framework under those regimes as well as private nuisance. Noise modelling and the defensibility of methodologies adopted is important not only in approval processes but subsequently during operation.

Recommendations for wind farm developers and operators

Our key messages for wind farm developers and operators from the decision in Bald Hills are:

  1. take state-specific advice about opportunities to minimise the risk of a common law nuisance claims;
  2. consider any acoustic expert advice or review required in relation to compliance or reasonableness of operational noise;
  3. carefully investigate any noise nuisance complaints;
  4. implement necessary steps to ensure compliance with the regulatory regime in the relevant jurisdiction and any project-specific conditions of approval; and
  5. check neighbour agreements (operational and pro forma for future projects) to ensure they appropriately address common law nuisance liability.
Source:  By Heidi Asten, Partner, Melanie Debenham, Partner, Madeline Simpson, Special Counsel, Rebecca Davie, Senior Associate with Henry Materne-Smith, Solicitor | Herbert Smith Freehills LLP | April 12, 2022 | hsfnotes.com

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

The copyright of this article resides with the author or publisher indicated. As part of its noncommercial effort to present the environmental, social, scientific, and economic issues of large-scale wind power development to a global audience seeking such information, National Wind Watch endeavors to observe “fair use” as provided for in section 107 of U.S. Copyright Law and similar “fair dealing” provisions of the copyright laws of other nations. Send requests to excerpt, general inquiries, and comments via e-mail.

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