THE South Gippsland Shire Council has backed off on its initial intention to table the report by independent public health expert, James C. Smith and Associates, looking at the level of noise nuisance caused by the Bald Hills Wind Farm, at its next meeting.

Instead the shire has offered the operators of the wind farm, the Infrastructure Capital Group, 14 days to respond to the report.

The shire is also flagging that it will be seeking clarification from the author of the report, its own appointee, James C. Smith and Associates, on a number of, as yet, undefined points.

“Ultimately,” said the shire CEO Tim Tamlin this week, “it will be up to the council to decide if there is a nuisance or not,”

Mr Tamlin said James C. Smith and Associates were not the delegated authority to make such a determination under the Public Health and Wellbeing Act, which might be made by the elected council, by Mr Tamlin himself under delegated authority or some other officer of the council under delegated authority.

But, as Mr Tamlin revealed this week, the matter will not be going to the next meeting of council on Wednesday, September 26 for a decision as first indicated.

When the report will be tabled at council, and a decision made on whether the turbines are noisy enough to cause a nuisance for the neighbours living nearby, officially at least, is anyone’s guess but it was allegedly the subject of animated discussion at a councillor briefing on Wednesday this week (today).

James C Smith is clearly of the opinion that there is a problem. In part his report says: “there is a nuisance caused by wind farm noise, in that, the noise is audible frequently within individual residences and this noise is adversely impacting on the personal comfort and wellbeing of individuals”.

Shire statement

The South Gippsland Shire Council has received the report from James C. Smith and Associates into the nuisance complaints lodged by some of the neighbours of the Bald Hills Wind Farm.

In the interests of openness the report was immediately provided to representatives of the Wind Farm operator and the complainants.

We will be seeking comments on the report from both the wind farm operator and the complainants over the next few weeks.

Council’s Chief Executive Officer, Tim Tamlin, was pleased to receive the independent report.

“I am hopeful now that we have the report on the findings of the investigation that we are a step closer to this issue being resolved.

“The report has identified potential concerns at two of the properties in question.

“Given that this is such a high profile issue with so much at stake I believe Council needs more than the basic findings of the investigation. Council is the responsible agency when it comes to determining nuisance under the Health and Wellbeing Act, so at this stage – having had the report for less than two days – we will be seeking input from all parties and reviewing the report ourselves before deciding on the next steps.

“I acknowledge that this process has been drawn out and difficult.

“Without in any way suggesting that Council is avoiding its responsibility, I would like to point out that this finding demonstrates the apparent disconnect between the Planning and Environment Act and the Public Health and Wellbeing Act.

“While wind farm operators may be complying with their obligations under the Planning and Environment Act, nuisance under the Public Health and Wellbeing Act remains an issue.

“I would suggest – again – that this is something the Victorian Government needs to resolve, for the sake of the renewable energy sector and all those involved in the establishment of wind farms. If this apparent conflict between the two pieces of legislation did not exist our residents would not find themselves in this predicament today.

“I understand that people will be curious as to why Council’s environmental health officers found that there was no nuisance when the complaints were first lodged. All I can say to that is that there is no objective measure to determine whether a noise of the kind alleged constitutes a nuisance, and that the conditions experienced by James C. Smith and Associates may not have been the same as those that were experienced by our officers.” said Mr Tamlin.

Council Q&A

Q. How did Council initially determine that there was no determination of nuisance?

A. A report of nuisance when it applies to wind farms can be difficult to determine as there are many mitigating factors – such as wind strength and direction – that can impact on noise/comfort levels. There is unfortunately no definitive measure or definition that states what constitutes an acceptable level of noise when it applies to wind farms. It is possible that the conditions experienced by James C. Smith and Associates may not have been the same as those that were experienced by Council officers.

Q. What did the investigation cost?

A. Council authourised the CEO to accept a quotation of $33,600 for the report.  There will be additional legal and sundry costs but these are still to be determined.

Q. What will Council do now it has received the independent report?

A. We will be providing the wind farm operator and the complainants with an opportunity to provide feedback.  Council will, if necessary, also seek additional clarification from James C. Smith and Associates.

Q. What will Council do to remedy the situation if nuisance is established?

A. This is yet to be determined.

Q. What is Council’s involvement when it comes to wind farms?

A. The Minister for Planning is the responsible authority for an application for a permit for a wind energy facility. However, under the Public Health and Wellbeing Act 2008 Council is the responsible authority for the investigation of complaints of nuisance. Local governments are obliged to investigate nuisance complaints and abate any nuisances regardless of whether the wind farms are operating in accordance with the planning permits under the Planning and Environment Act 1987.

Q. What does this apparent conflict in legislation mean for local governments?

A. As it currently stands, local Councils can effectively be sidelined from the approval process for a wind energy facility via Planning and Environment Act but are still be required to undertake enforcement and investigate complaints under the Public Health and Wellbeing Act. This is an area of contention for local governments as it can be costly and carries significant risks for local government.

At the MAV state conference on May 18, South Gippsland Shire Council received support from the majority of Victorian council’s for MAV to endorse the following motion: “Advocate to the Minister for Planning and Minister for Health to address inconsistencies  between the Public Health and Wellbeing Act 2008 and the Planning and Environment Act 1987 in relation to wind farm enforcement.”

What’s the timeline from here? Unsure at this stage.