Victims Vindicated: Farmers Victorious in Landmark Legal Battle Over Wind Turbine Noise

Victors vindicated: Don Fairbrother and his community’s tormentors.

 

A farming community tormented by wind turbine noise for years is celebrating the Supreme Court’s decision that declared it an unlawful nuisance.

The community surrounding the Bald Hills wind farm, built by a Japanese developer, Mitsui and Co, have been tortured by incessant turbine generated low-frequency noise and infrasound since March 2015, when its 52, 2 MW Senvion MM92 turbines spun into action.

Neighbours started complaining to the developer about noise, straightaway.

But, as is their wont, the developer and its goons simply rejected the mounting complaints and carried on regardless.

Locals, however, were not perturbed. Instead, they lawyered up. Engaging the feisty and tenacious Dominica Tannock.

Starting in April 2016, Dominica went after the South Gippsland Shire Council which, under the Victorian Public Health and Wellbeing Act 2008 has responsibility for investigating nuisance complaints and a statutory obligation to remedy all such complaints within its municipal district.

The Council, no doubt pressured by the Japanese developer, firstly refused to investigate the numerous complaints made about wind turbine noise.

Then, after further pressure from Dominica, the Council engaged in the pretence of an investigation, sending one of its environmental officers to one of the complainant’s homes to “listen” to the noise for a few minutes and – rejecting a request to carry out indoor/outdoor noise measurements – claimed it was “not normal practice for Council to use noise level readings” to investigate noise nuisance complaints.

The Council claimed that all it had to do to satisfy its obligations under the Act was to send one of its officers to the complainants’ homes, listen for a few minutes (irrespective of whether the turbines were operating or not) and close the complaint.

Instead of carrying out anything like an investigation, the Council threatened the complainants that it would vigourously defend any legal action pursued by the complainants and chase them for the Council’s legal costs when it won. Otherwise, the Council simply ignored the complainants.

Dominica Tannock didn’t let up.

Dominica’s clients launched an action in the Supreme Court of Victoria, which rejected the Council’s claim that there was no nuisance being generated by the Bald Hills wind farm and ordered the Council to launch a proper, independent investigation into the complaints made by the plaintiffs.

That was in August 2017. 12 months later, an independent investigator deemed that the turbine noise generated constitutes a nuisance, rendering the Council liable to act under the Public Health and Wellbeing Act 2008. We gave detailed coverage of the operation of that Act here.

Based on the investigation and the opinion given by a Melbourne Queen’s Counsel, Paul Connor, the Council was forced to accept the inevitable conclusion. The noise generated is a nuisance and, accordingly, an unlawful interference with the use and enjoyment of residents’ homes. That led to a Council resolution to that effect, including the following findings:

Council is satisfied that there exists a nuisance of the kind alleged by the complainants, for the following reasons:

A. The credible and consistent character of the noise logs provided by the complainants and/or the complaints made by the complainants about sleep disturbance and the injury to their personal comfort;

B. The conclusions of the Smith Report; and

C. The weight of the other evidence presented to Councillors suggests the existence of a nuisance.

The wind power outfit was furious. Not least because the Council’s findings threatened its entitlement to receive Large-Scale Generation Certificates (aka RECs) under the LRET legislation (as to which see our post here).

With the prospect of losing hundreds of $millions in subsidies, it appealed the council’s decision to the Supreme Court. Here’s a couple of articles detailing the delightful result.

Bald Hills Wind Farm neighbours win historic legal battle against turbines ‘too close to homes’
ABC News
Jedda Costa
20 August 2020

The South Gippsland Shire Council and local residents have won a legal fight against the Bald Hills Wind Farm (BHWF) near Tarwin Lower, about 150 kilometres south-east of Melbourne.

Key points:

  • A council in Victoria’s south-east has won a historic legal battle against a wind farm near Tarwin Lower
  • Last year, the operator of the Bald Hills Wind Farm sued the South Gippsland Shire Council after a report found turbine noise was affecting the wellbeing of nearby residents
  • The Supreme Court yesterday ruled there were no legal errors made by the council

The operator of the windfarm sued the council in March last year after it commissioned an independent report, which found noise from the farm’s turbines was having an adverse impact on the comfort and wellbeing of residents.

The company appealed against the council’s findings and sought a judicial review of the report, claiming it was incorrect and unlawful, but the Supreme Court yesterday ruled no legal errors were made throughout the council’s investigation.

The council’s chair administrator Julie Eisenbise welcomed the court’s decision.

“Noise emissions from wind farms are complex matters that local government is rarely called upon to adjudicate,” Ms Eisenbise said.

“I am pleased that council’s processes have withstood the scrutiny of the Supreme Court and I remain hopeful that the other parties can now settle this matter privately.”

People power at the heart of outcome
Bald Hills landholder John Zakula said he hoped the outcome would highlight the experiences of locals who have fought to hold major corporations legally accountable.

“We’re now starting to see some sort of positive action and some of our complaints are coming to fruition,” Mr Zakula said.

“People think that these wind farms are out in the country, out in the middle of nowhere, and it’s not going to affect anyone.

“But this is affecting us — previous wind farms that are already existing and also other wind farms that are in the planning stages here in South Gippsland.”

Principal lawyer at DST Legal Dominica Tannock represented the land owners in the five-year legal saga.

She said she hoped the case would encourage planning authorities to consider appropriate locations for wind farms in the future.

“Yes, we do want renewable energy, we do want wind farms, but they have to built in the right locations with the right buffers and they can’t be built too close to people’s homes,” Ms Tannock said.

“Just because people are out in the country doesn’t mean that they should be sacrificed so people in the city can have their lights on at night time and their air conditioning running during summer.”

Historic win after 5-year legal saga
Since the BHWF began operating its 52 turbines in 2015, residents submitted complaints to various authorities claiming the noise was causing sleep disturbance and headaches, especially on nights with rough weather conditions.

Flinders University in Adelaide is completing a five-year project researching the effect of wind farms on people’s sleep.

Frustrated neighbours to the BHWF issued a complaint to the council under the Public Health and Wellbeing Act.

An initial investigation by the council found there was no impact from the wind turbines.

But the complainants challenged the decision and the Supreme Court ordered the council to commission an independent report which cost more than $33,000.

Wind farm disappointed
The council recommends the residents and windfarm operator now resolve the matter privately.

In statement, a spokesperson from the BHWF said it was disappointed by the outcome but respected the decision.

“BHWF has participated in good faith in mediation with the landowners who joined the Supreme Court proceedings,” the statement said.

“Despite BHWF’s best and reasonable efforts the matter has not been resolved.”
ABC News

Supreme Court says Bald Hills ‘nuisance’ decision stands
Sentinel-Times
18 August 2020

Aggrieved neighbours of the Bald Hills Wind Farm have welcomed the Supreme Court decision in their favour, and that of the council, today.

 

THE Supreme Court of Victoria handed down its decision on Tuesday, August 18, in the cases of the Bald Hills Wind Farm Pty Ltd versus South Gippsland Shire Council, and the BHWF v five local landowners and found entirely in the council’s favour, and that of the landowners.

Justice Melinda Richards found that the operators of the Bald Hills Wind Farm had not established that the April 2019 resolution of council was affected by any jurisdictional error.

As a result, their decision, that there is an “intermittent nuisance of the kind alleged” by the nearby landowners and acknowledged by the council, stands.

The decision is, however, open to appeal for 28 days.

Lawyer for the aggrieved landowners, Dominica Tannock of DST Legal in Abbottsford said today that the ruling by the Supreme Court was an emphatic vindication of the decision by the council and a substantial decision for the landowners and the operation of the facility.

Ms Tannock said the operators of the Wind Farm not only lost their challenge of the council’s decision but were also likely to be liable for the considerable legal costs associated with the proceedings.

Her Honour also handed down that she proposes to award costs against the plaintiff, that is Bald Hills Wind Farm Pty Ltd in both instances although the court will be prepared to hear any party which seeks a different order as to costs if they lodge an application by Friday, August 28.

In respect of South Gippsland Shire Council ratepayers, the legal costs that would have been paid by the council to its lawyers, Maddocks, are likely to be now be met by Bald Hills.

Ms Tannock said she believed the decision today would also have a bearing on the Supreme Court action next year, in which the owners of the neighbouring rural properties are claiming aggravated and exemplary damages against Bald Hills Wind Farm Pty Ltd over what they say is an illegal level of noise created by some of the 52 turbines.

In her general disposition of the case between BHWF Pty Ltd, the council and the landowners, Justice Richards said: “As none of the grounds of review have been made out, there is no basis to make the declaration sought by Bald Hills. There is therefore no need for me to consider whether declaratory relief should be refused on discretionary grounds, as was submitted for the complainants. The proceeding must be dismissed.”

A spokesperson for the landowners said today that it was an important decision for those affected by the wind farm noise, one that he believed left the operators very little scope for appeal.

The South Gippsland Shire Council has also welcomed the decision, as a vindication of the council’s processes but has again raised what it believes are inconsistencies between the Planning and Environment Act and the Public Health and Wellbeing Act under which wind energy facilities operate.

Council’s response
South Gippsland Shire Council has successfully defended Supreme Court proceedings brought against it by the Bald Hills Wind Farm Pty Ltd. Five local residents were also co-defendants to the case. The decision is open to appeal for a period of 28 days.

The application sought a judicial review of Council’s resolutions of March and April 2019 that there existed an intermittent nuisance caused by the operation of the Bald Hills Wind Farm.  Council’s findings of 2019 included that the matter was better settled privately.

The court was asked to quash the Council’s decision and consider whether Council failed to have regard to mandatory considerations in finding that a nuisance existed and whether Council disregarded material essential to performance of its statutory task.

South Gippsland Shire Council’s Chair Administrator, Julie Eisenbise welcomed the Supreme Court decision which dismissed the Wind Farm’s application and proposed Orders to pay Council’s costs.

“Noise emissions from wind farms are complex matters that Local Government is rarely called upon to adjudicate. I am pleased that Council’s processes have withstood the scrutiny of the Supreme Court and I remain hopeful that the other parties can now settle this matter privately.

“As it currently stands wind farm operators may be complying with their obligations under the Planning and Environment Act but not the nuisance provisions of the Public Health and Wellbeing Act. We believe that this is something that Statutory Authorities need to resolve to avoid the situation that has occurred in South Gippsland, happening elsewhere,” said Ms. Eisenbise.
Sentinel Times

For the full details of the decisions in question, here are the Supreme Court’s reasons:

Bald Hills Wind Farm Pty Ltd v South Gippsland SC [2020] VSC 512

Bald Hills Wind Farm Pty Ltd v South Gippsland SC (No 2) [2020] VSC 513

The Supreme Court judge’s findings have, no doubt, boosted farmers’ spirits in and around the Bald Hills. And place them in a winning position for their civil claim for $millions in damages against Bald Hills Wind Farm Pty Ltd.

STT hears that the plaintiffs’ civil action is to be tried before a jury in September next year, giving them all an opportunity to recount their nightly torment and suffering to a dozen of their peers. STT will keep you updated on the progress of their claim.

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August 25, 2020 at 02:36AM

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