THE operators of the Bald Hills Wind Farm at Tarwin Lower have been ordered to stop the nuisance noise being created by their wind turbines, in the vicinity of neighbour John Zakula’s residence at night, as part of a decision handed down by the Supreme Court of Victoria today, Friday, March 25.
The injunction, applied for by Mr Zakula as part of an action against Bald Hills Wind Farm Pty Ltd after its operation stopped him from sleeping on at least 150 nights-a-year since it started operating in May 2015, comes into effect on June 25, 2022, three months from the date of the court decision.
Justice Melinda Richards also ordered aggravated damages against Bald Hills Wind Farm Pty Ltd for their “high-handed” approach to resolving the neighbours’ problems, totaling $92,000 for former neighbour of the wind farm, Noel Uren, and $168,000 for Mr Zakula, for causing a noise nuisance while failing to demonstrate that they were operating the wind farm within its planning conditions, and for failing to take action to reduce the noise, especially from faulty gearboxes on the turbines.
Justice Richards ordered that while Mr Uren had not suffered any loss of value for his land, she said the loss of value for Mr Zakula was in the order of $200,000.
In handing down her decision today, after a lengthy trial in September and October last year, 2021, Ms Richards said the neighbours of wind farms had a right to the enjoyment of their properties and a good night’s sleep.
“While wind power generation is a socially beneficial activity, it should be possible to achieve both a good night’s sleep and power generation at the same time,” Justice Richards said.
The opposing counsel in the matter, Mr Albert Dinelli for Bald Hills and Ms Georgina Costello SC for the plaintiffs, Mr Uren and Mr Zakula, agreed to negotiate the issue of costs in the case, and respond to the courts within 14 days.
However, while the amounts awarded in the case did not extend into the large sums that had been predicted before Friday’s decision, the injunction and findings of noise nuisance do carry with them considerable implications for Bald Hills Wind Farm Pty Ltd and the on-going operation of their wind energy facility at Tarwin Lower-Walkerville, but also for the wind-energy industry as a whole.
Justice Richards also said it was the role of the courts or VCAT to decide any dispute about whether a wind farm facility was operating within the conditions of its planning permit, and not the Minister for Planning whose role was to issue a permit and set the conditions, not to adjudicate on whether those conditions were being complied with.
One of the plaintiffs in the case Noel Uren said the decision vindicated the concerns of neighbours of the Bald Hills Wind Farm, not just those who were involved in the case.
“It’s been proven by the courts that they’ve been operating non-compliant, what more can you ask than that,” Mr Uren said, thanking the local farmers and other residents of South Gippsland who had provided moral support.
Mr Dinelli indicated that his clients would consider appealing the court’s decision.
Here is the judgement handed down in the case: Uren v Bald Hills Wind Farm Pty Ltd
“TORTS – Nuisance – Private – Wind farm operated by defendant – Plaintiffs complain noise from wind turbines disturbs sleep – Substantial interference with plaintiffs’ enjoyment of land – Interference is intermittent and specifically affects plaintiffs’ ability to sleep undisturbed at night – Social and public utility of wind farm – Whether plaintiffs hypersensitive (court found they were not) – Nature and established uses in locality – Whether wind farm an established use in locality – Whether defendant took reasonable precautions.
“Noise found to be substantial and unreasonable interference with plaintiffs’ enjoyment of land.
“PLANNING – Permit compliance – Relevance of permit compliance to private nuisance claim – Noise conditions in planning permit apply New Zealand Standard 6808:1998 Acoustics – The Assessment and Measurement of Sound from Wind Turbine Generators – Whether wind farm complied with noise conditions in permit – Proper interpretation of noise conditions and NZ Standard – Role of Minister in relation to permit compliance – Minister responsible authority for noise conditions under Planning and Environment Act 1987 (Vic)
“Not for Minister to determine permit compliance.
“Defendant did not establish compliance with noise conditions in permit.
“INJUNCTION – Whether damages an adequate remedy for continuing nuisance. Damages not an adequate remedy – Injunction restraining defendant from continuing to permit noise from wind turbines to cause nuisance at night and requiring defendant to take necessary measures to abate nuisance – Injunction stayed for three months.
“DAMAGES – Damages for past loss of amenity – Aggravated damages – High-handed
conduct of defendant – Exemplary damages not awarded.”