Jail threat over noisy turbines leak
By Michael Giles
A MAJOR brouhaha has erupted on the South Gippsland Shire Council about its failure to investigate, in a timely manner, complaints made by neighbours of the Bald Hills Wind Farm.
They say the noise nuisance emanating from some of the 52, 131 metre-high turbines is making them sick in their own homes and eight of them have lodged formal complaints with the responsible authority, as early as April 2016, that are yet to be properly investigated by the shire.
Council’s own officers conducted an investigation into the matter, undertaking a number of site visits between May and November 2016, but in a Joint Memorandum handed down with a Supreme Court ruling of August 29, 2017, both parties agreed the investigation had not been carried out properly and also that the shire’s Director Development Services Bryan Sword had not been delegated the authority, by the council, to find that there was no nuisance (decision January 23, 2017).
The Walkerville residents continued to seek the reasons for Sword’s ruling but without giving them any reason and refusing to release the report, the shire wrote to the complainants on April 3 saying the matter was closed.
It clearly wasn’t.
The Walkerville residents issued proceedings on April 6, 2017 aimed at forcing the shire to reveal its reasons, and after more argy-bargy, the shire did release details, on May 30, prompting a change of tack by the complainants legal team and ultimately the offer of a settlement by the shire in which costs of $20,000 were ordered against the South Gippsland Shire Council.
The shire also had to pay its own considerable costs to Maddocks of Collins Street.
The Supreme Court order of August 29 quashed the shire’s decision of no nuisance on jurisdictional grounds, without reflecting on the merits of the decision, and ordered a new investigation to be conducted – that was almost five months ago, and a full 22 months since the official complaints were first made.
John Zakula, the first named complainant on the original Supreme Court action is angry and upset.
He says the shire has had more than enough time to respond to the decision of the Supreme Court back in August but has failed to do so.
“They were supposed to get on with a new inquiry within a reasonable time but they’ve had four or five months and they’ve done nothing. They’ve continued to avoid their responsibilities.
“I’m convinced there’s something going on behind the scenes between the shire and Ministerial staff to avoid dealing with this matter. That’s all I’m prepared to say about that at the moment.
“The point is we are being deprived of our sleep as a result of the noise coming from these devices and as everyone knows, sleep deprivation can lead to serious health issues.”
Mr Zakula’s house is only 1.5km away from the closest turbine when the rules originally applying to the $1.2 billion facility called for a 2km separation.
The rules for new wind farms have since been changed.
In March 2015, the Andrews Government announced changes to these requirements, reducing the distance to 1km. The Bald Hills Wind Farm became fully operational in May 2015.
“You know who Daniel Andrews is don’t you? Why don’t you ask him why he decided to change the distance between turbines and houses from 2km to 1km without any technical reasons or proper justification for doing that just to appease the wind industry? Ask what his reasons were for doing that, why don’t you?” Mr Zakula said, deferring to his legal team for further comment.
The South Gippsland Mayor, Cr Lorraine Brunt, while regretting the delay, explained the situation.
“What happened after that ruling was handed down (August 29, 2017) was that it was felt the appointment of an approved specialist in the field had to be made at arms-length from the council, not by the shire CEO, but by the shire’s lawyers and it has simply taken time for all that to occur.
“It’s a very specialised field and there has been a delay in making an appointment,” Cr Brunt said, noting that these firms were unable to commit before Christmas.
“It’s unfortunate but I think if we can show that we have been making progress, slower than we would have liked, I think we’ll be alright.”
A report is set to come to council in February. But a community lobby group, the South Gippsland Action Group (SGAG), has seized on the incident to highlight the shire’s shortcomings
They claim the failure to act on the wind farm complaints is symptomatic of serious governance and process problems within the shire bureaucracy and they blame CEO Tim Tamlin for it.
Pointing to a reluctance to cut shire staff (e.g. HACC) to save ratepayers’ money, to millions “wasted” restructuring the caravan parks and the high cost of legal fees; the say the shire is unhelpful, wasteful and a law-unto-itself.
“For us this is just part of it,” said a spokesperson for SGAG, Gus Blaauw, saying the CEO has to go.
It is understood that this view is shared by a minority group on the council itself.
However the campaign to unseat the CEO and the issues surrounding the Bald Hills Wind Farm complaints could be completely overshadowed by an associated incident, the alleged committing of a serious criminal offence.
Someone, either a councillor or a member of the shire’s “executive management team”, has leaked a copy of an internal email from the CEO about this matter, which has found its way, either directly or indirectly, into the hands of the litigator for the complainants, Domonique Tannock of DST Legal in Abbotsford, which has legal proceedings against the shire on foot.
They have since used the contents of the email to accuse the shire of taking a position that “comes close to contempt of court” while issuing an ultimatum to release documents referred to in the confidential email.
It is understood that the deadline to comply of 4pm last Thursday, January 25 passed without a satisfactory response from the shire and a Directions Hearing in the Supreme Court, designed to force the shire to get on with the new investigation, will go ahead tomorrow, Wednesday, January 31.
The communique from Ms Tannock to the shire’s lawyer, John Rantino of Maddocks, makes it clear the complainants think the email was leaked by one of the councillors.
If found guilty of such an offence, the shire councillor involved could be hit with fines of up to $95,000 (600 penalty units) under Section 76D ‘Misuse of Position’ of the Victorian Local Government Act 1989 or even jailed.
Such a penalty would not prevent criminal or civil proceedings against the person involved, or their dismissal from council, if it could be established who leaked the document.
But that’s just the problem. The shire doesn’t know who released the document.
The email in question, which has since been copied to the ‘Sentinel-Times’, only shows that it was sent to “councillors” and the “Executive Leadership Team”, not specifically who received it or who passed it on.
In part the email says:
“I was surprised (and disappointed) today to receive advice from DST Legal that they have filed proceedings with the Supreme Court of Victoria on the grounds that we have not complied with the order. (Attached for your information). A directions hearing is set for 31 January 2018. Our legal representative is currently in contact with DST Legal regarding this matter and I am optimistic that it will be resolved prior to reaching court. Faith will keep you informed of any further developments whilst I am on leave.
“These proceedings have been filed despite the fact that on 2 November I requested an investigation plan from an independent expert in this field. Due to their availability it took some time for them to prepare a draft plan to undertake the work, but it has been received.
“I have requested for this to be finalised and costed so a report can be presented to you at the February Council meeting. The report will address appointing a lead person to undertake the investigation, a project plan and estimated cost for your approval. It was my intention to have this presented to the December meeting, which turned out to be unachievable due to the unique nature of the investigation, and the prior commitments of the investigator. It is not ideal that it is taking so long to get to this stage, but I believe we cannot afford to get this wrong and that careful planning will ensure satisfaction with the process for all concerned.”
It is understood Mr Tamlin sent the email on Friday, December 22, prior to going on leave, and that the lawyers for the wind farm complainants received a copy of it on January 12, prompting them to change tack in their action against the shire over the delays in investigating their clients’ grievances.
The shire is understood to be considering calling in a specialist IT investigator to root out the culprit.
Cr Brunt said the leaking of the information was a potentially more serious issue for the council.
“It’s hard to comprehend that someone would leak an internal document, especially on a legal matter, to the legal team of the people taking action against the shire.
“And we will be taking all necessary steps to find out who it was.
“If we can’t find out who it was, it could have implications for the council as a whole, yes, if we are seen to be allowing information of a very sensitive nature to be released.”
The information in the email has clearly put the shire at a disadvantage legally and could prove costly for ratepayers in the event of a settlement over the noise levels.
“I attach a copy of an email that my client instructs me he received on 12 January, 2018 from one of the councillors at the South Gippsland Shire Council (the Tamlin email),” says Ms Tannock in her letter to the shire’s lawyers.
“The Tamlin email appears to show that: (1.) Prior to 2 November, no steps had been taken by the Council to comply with the Court’s orders of 29 August 2017. (2.) After 2 November, the Council has made little progress with its investigation; and (3.) Instead of investigating the nuisance in accordance with Court orders and the Council’s obligations arising on 15 April under the Public Health and Wellbeing Act 2008, the Council is lobbying to be relieved of its obligation to investigate nuisances in relation to noise and health impacts from wind farms.
“The Council’s blatant attempt to sabotage nuisance complaints in the context of the Court oversight of the Council’s conduct is an extremely troubling development. I believe the Council’s position comes very close to contempt of Court.”
Ms Tannock goes on to request a copy of the “draft plan” referred to in the email by Thursday, January 25.
“If these documents give my client confidence that a bona fide investigation will occur, as ordered by the Court, with reasonably expeditious timeframes, my client will consider withdrawing this proceeding provided the Council pays his costs.”
Ms Tannock also refers the shire’s lawyers to a recent ruling in relation to the Waubra wind farm (Waubra Foundation v ACNC December 2017) that noise annoyance was a “plausible pathway to disease” and that there was “an established association between wind turbine noise annoyance and adverse health effects”.
This is an open letter, Ms Tannock concludes.
The whole incident is embarrassing, damaging and could possibly be very costly to the shire’s ratepayers and the council.
Mr Blaauw, the members of SGAG and other critics of the shire and the CEO Mt Tamlin say that there could be no “surprise” as stated in the leaked email, that legal action was finally taken to get the new investigation started because the complainants have been prompting the shire to do just that for months.