Bald Hills Wind Farm a nuisance to neighbours: injunction, damages and aggravated damages awarded
Uren v Bald Hills Wind Farm Pty Ltd [2022] VSC 145
In February 2020, the plaintiffs commenced proceedings in the Supreme Court of Victoria against Bald Hills Wind Farm in private nuisance at common law. The Court found that turbine noise amounted, intermittently at night, to a substantial and unreasonable interference with the plaintiffs’ enjoyment of their land and awarded damages, aggravated damages, and an injunction. The case was complex, requiring, among other things, the Court to consider technical acoustic evidence. Significantly, the wind farm’s expert evidence failed to demonstrate compliance with the noise conditions of the wind farm’s planning permit at any time, largely because its expert relied on an incorrect interpretation and application of the relevant conditions and standard.
Since it began operating in 2015, the Bald Hills Wind Farm, located in South Gippsland, Victoria, has received many complaints from its neighbours about noise from its 52 turbines.
The Supreme Court first considered whether noise from the turbines is a nuisance in Bald Hills Wind Farm Pty Ltd v South Gippsland Shire Council [2020] VSC 512 (Bald Hills No 1). A group of neighbouring residents submitted complaints to the South Gippsland Shire Council under the Public Health and Wellbeing Act 2008 (Vic) that the wind farm created an acoustic nuisance that caused the complainants to suffer headaches and sleep disruption. The Council resolved that it was satisfied there existed a nuisance of the kind alleged by the complainants but opined that the matter was better settled privately. In Bald Hills No 1, the wind farm sought judicial review of the Council’s resolution but failed to establish that the Council’s finding of nuisance was affected by jurisdictional error. Tom Clarke’s useful and engaging article on Bald Hills No 1 concluded with the astute observation that the “real test of the complaints will lie in the pending nuisance proceeding.”
In Uren v Bald Hills Wind Farm Pty Ltd [2022] VSC 145, (Bald Hills No 2), the complainants brought a claim against the wind farm directly, alleging that the noise from the wind farm was a nuisance. A person commits a private nuisance if that person interferes with another person’s use or enjoyment of their land in a way that is both substantial and unreasonable. Whether an interference is unreasonable is an objective question, to be answered by weighing the respective rights of the parties in the use of their land. At trial, the plaintiffs were Mr Uren, who lived near the wind farm until December 2018, and Mr Zakula, who still lived near the wind farm at the time of the trial. Ten other complainants had resolved their claims against the wind farm before trial; six of these complainants were called as witnesses by Mr Uren and Mr Zakula.
The Court found that noise from the turbines caused a substantial and unreasonable interference with the plaintiffs’ enjoyment of their land – specifically, their ability to sleep undisturbed at night, in their own beds, in their own homes. The interference was a substantial, albeit intermittent, interference with the acoustic amenity of the plaintiffs’ properties. The wind farm was restrained from continuing to permit noise from the turbines to cause a nuisance at night and was required to take necessary measures to abate the nuisance. The injunction was stayed for three months to allow the wind farm time to remedy the issue, but not so long as to force Mr Zakula “to endure another winter in which his sleep is disturbed by excessive wind turbine noise.” The plaintiffs were also awarded general damages for past loss of amenity (in the amount of $46,000 for Mr Uren and $84,000 for Mr Zakula) and aggravated damages as a result of the manner in which the wind farm dealt with the plaintiffs’ “reasonable and legitimate” complaints (again, $46,000 for Mr Uren and $84,000 for Mr Zakula).
The Court had no difficulty in accepting the plaintiffs’ claim that the noise from the turbines caused a substantial interference with their use and enjoyment of their land. Richards J found that the noise had woken Mr Zakula or kept him awake on hundreds of occasions since June 2015 and disturbed Mr Uren’s sleep on around 100 occasions between May 2015 and December 2018. Relevantly, contrary to the wind farm’s submission, neither plaintiff was found to be hypersensitive to turbine noise. Further, the wind farm’s expert evidence, which measured turbine noise at the plaintiffs’ properties over a six week period in 2021, failed to negate the plaintiffs’ dynamic descriptions of variable and intermittently loud noise from the wind farm. This was because the expert’s evidence related to average sound levels attributed to the turbines at the plaintiffs’ properties.
The Court’s dissatisfaction with the wind farm’s expert evidence also permeated its finding that the wind farm failed to establish that the sound received at the plaintiffs’ houses complied with the noise conditions in its planning permit, such compliance being a central component of the wind farm’s defence. Despite finding that the wind farm’s expert, Mr Turnbull, was meticulous in his approach to assessing the wind farm’s compliance with the conditions of the permit, his evidence was not accepted. This was because, in summary, the Court found the interpretation adopted and/or used by Turnbull of the permit conditions, and in turn, the “NZ Standard” (being, the New Zealand Standard 6808:1998 – Acoustics – The Assessment and Measurement of Sound from Wind Turbine Generators), was incorrect. The interpretation of the standard and the permit conditions was a matter for the Court.
An interrelated aspect of the wind farm’s defence that it had complied with its permit conditions was its submission that the Minister, being the “final arbiter” of permit condition compliance, had, by expressing his satisfaction that the permit conditions had been complied with, conclusively determined the issue of permit compliance. This submission was rejected by Richards J who, after considering the statutory framework applicable to the enforcement of permit conditions, found such an interpretation would be repugnant to the enforcement framework provided in the Planning and Environment Act 1987 (Vic), notwithstanding that the Minister was the responsible authority for the permit and could initiate enforcement action.
Justice Richards was also unimpressed by the wind farm’s failure to take any remedial action to reduce turbine noise at either property. There were at least two identified precautions to reduce the noise levels at the plaintiffs’ homes: implementing selective noise optimisation; and addressing a known gearbox tonality issue. Similarly, the wind farm’s belated offer to further soundproof Mr Zakula’s home was found not to have been reasonable or effective.
For those in favour of renewable energy, the Court found that wind farms are a socially valuable activity, although not to the extent that the renewable energy generation interferes with their neighbours’ sleep.
Finally, in obiter, Richards J observed that demonstrated compliance with the NZ Standard and all permit conditions would not necessarily have established that the noise that from time to time disturbed the plaintiffs’ sleep was reasonable. This was because the NZ Standard is not directed to intermittent loud noise from wind turbines, and therefore provides no means of determining whether a wind farm produces unreasonably annoying noise in certain weather conditions, or on a particular night. Caution should be applied prior to attempting to make too much of this observation, particularly given that: (1) the NZ Standard was superseded in 2010 by the New Zealand Standard 6808: 2010 – Acoustics – Wind farm noise; (2) there have been recent changes to the Victorian environment protection regime;[1] and (3) each planning permit is likely to contain bespoke conditions. Further, outside of Victoria, different regulatory regimes will apply.
There are two pertinent lessons from Bald Hills 2.
First, ensuring the process adopted by one’s expert complies strictly with any statutory or regulatory framework (including the judicial interpretation of such framework) is of critical importance to the value of such evidence. In the context of incredibly complex and technical evidence, that can be easier said than done.
Secondly, for wind farm operators, the value in heeding the age-old wisdom of “give and take” between neighbours cannot be underestimated. If nothing else, a failure to “take” noise complaints seriously may result in being “given” aggravated damages.
[1] See the Environment Protection Act 2017 and the Environment Protection Regulations 2021.
