THE operators of the Bald Hills Wind Farm are scheduled to be back in the Supreme Court on Monday, September 6.
The case, being brought by some of the neighbouring landowners, is expected to decide once and for all whether the facility has caused “substantial and unreasonable interference with the use and enjoyment of the land” owned by its neighbouring farmers.
But it could be the State Government and not the operators of the facility that is ultimately at fault. There’s a lot at stake.
Not only are the lawyers for the aggrieved landowners seeking aggravated and exemplary damages, to compensate the plaintiffs for their distress and to punish the operators for their alleged wrongdoing, they are also seeking abatement of the noise, potentially involving the shutting down of the facility at night.
According to Dominica Tannock of DTS Legal, representing the local farmers, they are also seeking a declaration from the court that the wind farm does not comply with its planning permit, an argument they hope to advance by subpoenaing the Victorian Planning Minister Richard Wynne to appear.
Mr Wynne is resisting their attempts to have him appear, responding through the Victorian Government Solicitors Office that a new case in the Supreme
Court is not the forum for reviewing the decision he made in 2019, that Bald Hills is operating in compliance with its planning permit, and that any complaints about breaches should go to VCAT.
“The Minister is not in a position to give evidence of any of the underlying facts of the operation of the wind farm, and is not qualified to give expert evidence on the issue of compliance with the New Zealand Standard as an objective question of fact.”
The letter, dated July 21, 2021, does however confirm that the Minister’s “satisfaction” that Bald Hills was operating within the conditions of its planning permit relied solely on noise monitoring data provided by the operators themselves.
“Condition 19 (including that noise levels should not exceed 40dBA or 5dBA against background noise, tighter restrictions at night) is a condition that requires compliance to the Minister’s satisfaction. In the Minister’s 2019 Decision, the Minister concluded that he was so satisfied. In these circumstances, the Plaintiffs’ claims for relief from alleged non-compliance with the Permit, and the identified basis for its Subpoena, are not appropriate or permissible,” according to the Victorian Solicitor’s Office, giving reasons.
If the court is able to rule that the Bald Hills Wind Farm is not operating under the terms of its planning permit, millions of dollars in wind energy income could be at risk, but it might be the government that is ultimately on the hook, not the operators.
Ms Tannock acknowledged the problem.
“Yes, certainly, Bald Hills Wind Farm is saying that the Minister was satisfied that the facility was operating within its permit conditions, but what we want to ask the court, and why we have called the Minister, is ‘Are you still satisfied?’.
“Bald Hills is separately making application to change the conditions under which it operates at night. If they were compliant, why seek to change the conditions?”
Initially, six landowners at Tarwin Lower and Walkerville were joined in the action against the operators of the wind farm.
But four of them, the owners of the larger farming enterprises adjoining or in close proximity to the wind energy facility, have reached confidential, out-of-court settlements.
One of them reached a settlement late last week.
Two remain to take the case forward: Noel Uren, who no longer owns a farm in the area and a retired engineer, and John Zakula, who has a small landholding at Tarwin Lower.
Mr Uren, who declined to be quoted about the substance of the case, nonetheless said the case had the potential to have important ramifications for the operation of wind energy facilities across Australia and even overseas.
He said the case against Bald Hills was not diminished by the withdrawal of four of the complainants.
They have, however, not been asked to recant their complaints as part of the settlement and privately at least, stand behind their claims about the “loud drone, whining and roaring” noise coming from the turbines, for days and nights on end, one saying “the noise is so unbearable that she has to leave her home in order to get rest”.
Some kept diaries about the disturbance and commissioned their own noise monitoring that was at odds with the noise data submitted by contractors for the operators.
Others documented severe headaches and sleep deprivation from the thumping and whining of the turbine blades especially at night.
“A loud drone, could hear it over the TV, had to have TV up quite loud but couldn’t drown it out.”
Some local residents were forced out of their homes permanently, sold up and left.
After six years trying to get the responsible authorities, including the South Gippsland Shire and the State Government, to take action on their noise nuisance concerns, next month’s court case is expected to deliver a final solution, or at least a clear way forward.