A Supreme Court Judge started hearing the trial of a noise nuisance claim brought by farmers against a wind farm operator last week. The plaintiffs are seeking substantial damages, including aggravated and exemplary damages for over six years of nightly noise punishment.
As we pointed out in an earlier post, the action was being pursued by 13 plaintiffs, 11 of whom have settled on favourable, confidential terms – STT hears that those who have settled pocketed figures approaching $2m each.
The case is now being pursued by two plaintiffs, Noel Uren and John Zakula; the trial is a battle between hard-working farmers and one of the more corrupt ‘industries’ on earth.
We’ll come to the wind industry’s latest efforts on that score, in a moment. But, first, here’s a little update on the case from the ABC.
Wind farm nuisance test case starts in Victoria Supreme Court
Emma Field and Rio Davis
7 September 2021
What could become a landmark legal battle to determine if a Victorian wind farm created a significant nuisance for its neighbours in underway in Victoria’s Supreme Court.
The civil case against the Bald Hills wind farm near Tarwin Lower, in Victoria’s south-east, is expected to run for two weeks.
The plaintiffs are John Zakula, who lives about a kilometre from the nearest turbine, and Noel Uren, who sold his property next to the wind farm in 2018.
They are claiming damages and aggravated damages, saying they suffered sleep deprivation, loss of income and decreased property values.
They also seeking an injunction to have the turbines turned off under certain conditions, particularly at night.
To establish nuisance, the plaintiffs must prove that the turbines caused them substantial and unreasonable interference with their enjoyment of their properties.
While the case could set a precedent, Justice Melinda Richards said it was constrained to the facts of the matter.
“There are a confined set of issues for determination,” she said.
“It is not a broad-ranging inquiry into wind farms.”
Court heads to South Gippsland
Justice Melinda Richards said she would visit the wind farm on Wednesday.
Victoria is in lockdown, but court officials and two lawyers have received permission to make the trip.
Justice Richards said she and two of her associates would take a COVID-19 test before they visited the farm and she encouraged the two lawyers to do the same.
2015: Wind farm begins operations, residents launch legal action
2020: Supreme Court case upholds the validity of a South Gippsland Shire Council-commissioned report
2021: Six plaintiffs launch case and are joined by seven others. Now only two remain [because the other plaintiffs settled on confidential terms – STT hears they each pocketed figures approaching $2m]
The plaintiff’s legal team set out a broad suite of evidence arguing the effects of the noise from the wind farm were both “substantial and unreasonable”.
Mr Zakula’s lawyers told the court on Monday he had taken drastic action to try and minimise the noise.
“Mr Zakula can’t sleep most nights,” barrister Joel Fetter said.
“He’s bricked in his bedroom window to deal with the noise.”
The court heard the nearest turbine was 1,131 metres from Mr Zakula’s house, which he built in 2015.
Because the house was not built when the planning permit was issued, the condition of a maximum noise level does not apply to his residence.
But the wind farm’s defence barrister, Albert Dinelli, said the operator had performed monitoring at his house and ensured the noise levels were under the permit levels.
“Your Honour ought to conclude the conduct of the wind farm is of a responsible corporate citizen,” he said.
Property values plunged, court told
Mr Zakula and Mr Uren’s lawyers told the Supreme Court on Monday that the noise from the 52 wind turbines caused the men headaches and sleep deprivation.
The claimant’s lawyers also said the noise meant Mr Zakula had abandoned plans to start an organic farm on his property and reduced his property’s value by 25 per cent, or $200,000.
“He’s had to give up the farm because he can’t stand to be outside,” Mr Fetter said.
The nearest turbine to Mr Uren’s residence was 2,167m.
When he sold in 2018, the court heard, it had lost $191,000 in value.
The wind farm operators undertook several stages of “curtailment” measures before and during the operation of the turbines, the court was told.
Offers were made to Mr Zakula for further noise abatement on two separate occasions.
Mr Dinelli said while the two plaintiffs’ subjective experience should be considered in the case, the findings of an “objective person” were more important.
Noise study questioned
A wind farm noise study ordered by Victoria’s Planning Minister was also questioned by the plaintiffs and defended by Bald Hills’ legal team.
Lawyers for the pair told the court a pre-operation noise survey to measure background noise report was not conducted at Mr Uren’s property.
“Mr Uren’s house is missed in this report,” Mr Fetter said.
He said in order to make a full assessment of the wind farm noise the company commissioned to do the study required the background noise data, plus the reading of the turbine noise.
Mr Fetter said this would not have been possible without Mr Uren’s data.
“The fact they never did background monitoring on his house means there is no background data on his house,” he told the court.
“You’ve got to cheat and take background data from another location to get this data.”
The defence’s argument that the measurement was appropriate rests on the expert evidence of Chris Turnbull, an acoustic engineer who reviewed the company’s sounds measurements.
But the defence will argue that taking background noise data from a proxy location – in this case a different neighbour’s residence – is appropriate.
The case continues.
Now, to the latest attempt by the wind industry to stack the deck in its favour.
But first, for the uninitiated, a litigious contest between parties is meant to be about all of the evidence and all of the arguments being placed before a judge in open court, so that each party can respond and retort, in turn.
Civil litigation is not meant to be about a party, or someone associated with a party, sneaking off behind the backs of their opponent to start privately influencing the judge or her decision, along the way. Pretty fundamental stuff, really.
The concept of open and transparent justice, however, appears to have been entirely lost on one Andrew Dyer.
Dyer was appointed as the National Wind Farm Commissioner back in 2015 by Malcolm Turnbull, then Federal PM – on the pretext that Dyer would act to protect rural residents from the excesses of the wind industry, in general, and the soul-destroying effects of wind farm, in particular.
Well, that was the pretext, anyway. However, rather than acting in the interests of those treated as ‘road-kill’ by the wind industry and its enablers in government, Dyer openly sided with the villains.
Dyer’s disdain and contempt for rural Australians quickly became legend across Victoria, where hundreds of giant industrial wind turbines have been shoehorned into once viable and prosperous communities.
For example, at a community meeting back in July 2018, one long-suffering wind farm neighbour, Sonia Trist – who lives within 640 m of wind turbines at Cape Bridgewater – told the Commissioner she was “living a life of misery” and that her house was now worthless, to which the Commissioner simply told her “to move out”.
No mention of compensation; no mention of redress against Pacific Hydro, the operator that made this woman’s life a living hell. Not even a word of feigned consolation. After he gave his heartless advice, Sonia retorted that Dyer’s “contract shouldn’t have been renewed”. Truth is, he should have never got the job in the first place (for more, see our post here),
Dyer’s still at it; although he’s had a name change from National Wind Farm Commissioner to Australian Energy Infrastructure Commissioner, no doubt to take account of the fact that he’s in there batting for the solar industry, as well.
Now, back to the concept of open and transparent justice.
The trial of the action being pursued by Noel Uren and John Zakula started on Monday, 6 September 2021. It will be the first noise nuisance claim against a wind farm operator in Australia that will be fully heard and determined by a judge; all previous cases have settled in favour of the plaintiffs, on confidential terms.
Accordingly, the trial was deemed so significant, the presiding Judge, Justice Richards decided to broadcast the proceedings by AVL to any interested party.
Andrew Dyer tuned in, apparently taking a keen interest in what occurred on day one of the trial. What Dyer did next is simply gobsmacking to anyone with the vaguest understanding of that aforementioned principle of open and transparent justice. As recorded in the transcript from day 2 of the trial, what her Honour, Justice Richards had to say about Andrew Dyer and his clandestine attempt to assist her says it all, really.
TRANSCRIPT OF PROCEEDINGS
SUPREME COURT OF VICTORIA
S ECI 2020 00471
COMMON LAW DIVISION – TRIAL DIVISION
TUESDAY 7 SEPTEMBER 2021 (2nd day of hearing)
BEFORE THE HONOURABLE JUSTICE RICHARDS
NOEL UREN & JOHN ZAKULA (Plaintiffs)
BALD HILLS WIND FARM PTY LTD (Defendant)
1 HER HONOUR: Good morning everyone. There’s a matter that I
2 need to raise with the parties before I turn to you,
3 Ms Costello.
4 This morning shortly before 9 o’clock my
5 associate, Jane Kluske, received a telephone call in my
6 chambers number from Andrew Dyer, the Australian Energy
7 Infrastructure Commissioner, who I understand was
8 formerly the National Wind Farm Commissioner. I
9 understand that Mr Dyer was one of a number of people
10 who were watching the live stream of the proceeding
11 yesterday. Mr Dyer apparently wanted to let me know
12 that there is a range of resources on his office’s
13 website and he also offered to speak with me about
14 issues in the case. Needless to say, I will not be
15 consulting the website and I will not be speaking with
16 Mr Dyer. As my associate informed him, I will be
17 making my decision on the basis of the evidence that I
18 receive in the course of this trial.
19 This is, of course, a trial of an adversarial
20 proceeding involving a common law nuisance claim
21 brought by Mr Uren and Mr Zakula against the Bald Hills
22 Wind Farm. There are a confined set of issues for
23 determination. It is not a broad-ranging inquiry into
24 wind farms generally.
25 While I don’t doubt that Mr Dyer’s contact with my
26 chambers was well-intentioned, I do regard it as quite
27 inappropriate and I do not wish it to be repeated. If
28 there is anything that arises from that I expect the
29 parties will let me know.
30 Ms Costello, did you have anything further that
31 you wanted to add this morning?
via STOP THESE THINGS
September 12, 2021 at 02:31AM