Renewable energy rent-seekers are clearly rattled by the Supreme Court decision, that forced a wind farm operator to shut down all of its turbines at night-time and ordered substantial damages in favour of the plaintiffs for the pain and suffering, already caused to its victims.
Being forced to limit the operation of wind turbines to the daytime only, has wrecked the wind industry’s business model in Australia by preventing them from collecting Renewable Energy Certificates (RECs) around-the-clock, a permanent loss in the order of tens of $millions, annually. It’s also opened them up to criminal prosecutions for defrauding the Australian Commonwealth; including obtaining $millions in RECs by deceptively claiming to be compliant with the noise conditions of their planning permits.
Predictably, the big end of town law firms that act for these villains, have been forced to recalibrate their advice. Until the Bald Hills decision, firms like Herbert Smith Freehills (HSF) gave their wind power outfit clients bullish advice about their ability to destroy lives and livelihoods, with impunity. Now, the suits clocking up $750 an hour for their prognostications about their client’s potential liability to neighbours have been forced to have a good, hard rethink about the common law tort of nuisance. [Note to Ed: isn’t that their day job?]
Properly advised, the operator of the Bald Hills wind farm would have settled with all of the original 13 plaintiffs and not allowed the case to run to judgment; a judgment that will allow the wind industry’s victims around the world to punish it for the noise torture they dish out on a nightly basis. The 11 who settled, pocketed figures of more than $2m for each affected household. But the last two, John Zakula and Noel Uren, rejected the cash and decided to take it all the way and teach their tormentors a lesson about human dignity and decency, and the long recognised legal right to sleep comfortably in your very own home. In that respect, every wind farm neighbour owes them an eternal debt of gratitude.
What’s set out below by a team from HSF, is a „don’t panic“ précis of the decision delivered on 25 March 2022 by Justice Melinda Richards of the Victorian Supreme Court – that slapped an injunction on the Bald Hills wind farm preventing operation of the turbines at night, because the noise they generate has been driving neighbours nuts for seven years, and the operator did absolutely nothing to relieve their suffering, despite hundreds of complaints.
The gang from HSF are clearly still keen to convince their clients that all is well (provided they keep throwing money into the HSF trust account) so there are quite a few significant omissions. STT will help fill in the gaps with our commentary on the HSF commentary, which appears in square brackets.
Wind farm noise may be a nuisance – but compliance remains a critical issue
Heidi Asten, Melanie Debenham, Madeline Simpson, Rebecca Davie, Henry Materne-Smith
12 April 2022
The Victorian Supreme Court has found that intermittent noise from Bald Hills Wind Farm at night was a nuisance, and awarded damages, aggravated damages in light of the past management of the complaints, and an injunction (stayed for 3 months) to prevent further noise nuisance.
The case is significant in confirming that intermittent noise may be a nuisance even if compliant with the regulatory regime, although the specific permit conditions for Bald Hills and different regulations that now apply to wind farms in Victoria mean that this decision cannot be directly translated to other circumstances.
Uren v Bald Hills Wind Farm Pty Ltd  VSC 145 (25 March 2022)
- The decision underlines that operational wind farm noise may constitute a common law nuisance where it impacts on a neighbour’s ability to sleep, including where the nuisance is intermittent. Intermittent nuisance may arise even where the wind farm is complying with the regulatory regime and permit conditions.
- However critically in this case, the Court found that the wind farm had not demonstrated compliance with the regulatory regime, including because the Court did not agree with the interpretation of the applicable acoustic standard relied on by the wind farm’s experts. Although compliance will not necessarily mean that there is no nuisance, the Court noted that it would have carefully considered this if compliance over time could be demonstrated.
- Each jurisdiction around Australia has its own regulatory regime, with its own challenges. There is no nationally consistent noise standard. However similar complaints are arising in other jurisdictions. Nationally, the Bald Hills decision highlights that non-compliance with the applicable regulation and noise standards creates a dual risk of statutory liability as well as private nuisance actions.
- Similar cases are being brought in other jurisdictions. In Queensland, for example, proceedings currently before the Supreme Court involve a neighbour alleging common law noise nuisance and breach of a condition of a development approval as well as misleading and deceptive conduct on the part of the acoustic engineering firm engaged by the wind farm owner to undertake noise predictions and modelling as part of its application for approval. The matter is still before the court and yet to be decided.
- Neighbour agreements remain an important project tool to address statutory and common law liability in relation to wind farm impacts. This case is a good reminder to check neighbour agreements and also to carefully investigate noise complaints.
Some key aspects of the decision and implications are explored further below.
Noise complaints regarding Bald Hills Wind Farm had arisen since 2015 when the wind farm commenced operation. A complaint under the Public Health and Wellbeing Act 2008 led to a resolution of Council in 2019 that there existed a nuisance of the kind alleged by the complainants, but that the nuisance existed only intermittently. Of the further steps available under the Public Health and Wellbeing Act, the Council resolution found that the matter was better settled privately. The wind farm was unsuccessful in seeking judicial review of Council’s resolution.
The current proceeding related to a claim for common law nuisance, with 10 of the 12 plaintiffs resolving their claims before the trial.
[There were 13 plaintiffs in all – when the action started there were 6 plaintiffs, who were later joined by another 7. Over time, their Solicitor, Dominica Tannock was able to settle the claims of 11 of her clients on very favourable (confidential) terms – those who settled pocketed figures of more than $2m for each affected household.]
Having found that there was a substantial and unreasonable interference with the acoustic amenity of the two plaintiffs’ properties, in particular their ability to sleep, and that this was a nuisance, the Court awarded:
- To the first claimant who no longer resides near the wind farm, $46,000 (general damages for loss of amenity) plus $46,000 (aggravated damages);
- To the second claimant, $84,000 (general damages for loss of amenity) plus $84,000 (aggravated damages);
- An injunction restraining Bald Hills Wind Farm from continuing to permit noise from wind turbines on the wind farm to cause a nuisance at the second claimant’s house at night, and requiring it to take necessary measures to abate the nuisance. The wind farm has 3 months to remedy the issue before the injunction takes effect. The Court noted it would have awarded additional damages if it had not granted the injunction.
Role of acousticians and the Court
A key element was interpretation and application of the New Zealand Standard 6808:1998 Acoustics – The Assessment and Measurement of Sound from Wind Turbine Generators (1998 Standard), which applies to operational noise from Bald Hills Wind Farm. Some of these issues are different under the updated 2010 version, which applies to many Victorian wind farms.
Relevantly, the Court scrutinised the methodology and findings of early compliance reporting and the current compliance assessments. The Court held that the proper interpretation of the 1998 Standard is for a court or tribunal adjudicating a question of permit compliance; it is not a matter for acoustic experts. The assessment by the wind farm’s expert did not accord with the Court’s interpretation of the 1998 Standard, and the Court found that the assessment did not demonstrate that the wind farm was in compliance.
[No, the court’s findings were not so limited and depended on the fact that in its reports, Marshall Day Acoustics (MDA) demonstrated the peculiar ability of wind industry acoustic consultants to obtain lower recorded noise levels at neighbour’s homes AFTER a wind farm is built and wind turbines start operating.
Her Honour held: „MDA reached the remarkable conclusion that the noise levels at both residences were lower overall than the background levels used for comparison. No-one from MDA was called to explain these findings. They were plainly not tenable. It is simply not possible that it became quieter at either Mr Zakula’s house or Mr Uren’s house after the wind turbines started operating in March 2015.“
The other clever trick played by the operator, in this case, was withholding the raw data from the plaintiffs’ acoustic experts, Dr Bob Thorne and Les Huson. Whereas, they were happy to provide the raw data to their own expert witness, Chris Turnbull, the plaintiffs’ acoustic experts were deliberately deprived of the opportunity to assess and review that data.
Her Honour was scathing about that conduct: „The questions explored during the experts’ evidence included what filtering [meaning the deletion of large tracts of relevant noise data by MDA] was applied by MDA to its background and operational sound level measurements used to assess compliance with condition 19(a). Dr Thorne and Mr Huson both said that they did not know how MDA had filtered its background data, because they had never seen MDA’s datasets. Mr Turnbull volunteered that he had asked for and analysed the raw background data for locations 19, 61 and 66, and had satisfied himself that they had applied the same filtering to both pre-construction and operational data. Dr Thorne was ‘stunned’ to learn that this raw data had been given to Mr Turnbull, when he had asked for the same information 18 months previously and it had never been provided. The raw background data was apparently not discovered by Bald Hills, or produced by MDA in answer to a subpoena served on it in May 2020. The raw data files were belatedly produced by Mr Turnbull during the trial, in response to a subpoena for production served on him in June 2021. It is unsatisfactory that Dr Thorne and Mr Huson did not have timely access to relevant data, and had no opportunity to analyse it while preparing their reports or before giving evidence. In those circumstances, it would be unfair to the plaintiffs to accept Mr Turnbull’s opinion based on that data.“
MDA was not a defendant in the action and, did not present a single one of its consultants, employees or staff as a witness. Funny about that!]
Role of the Minister for Planning and the Court
Bald Hills argued that, because the permit condition required compliance with the 1998 Standard ‘to the satisfaction of the Minister for Planning’, the Minister is the ‘final arbiter’ of compliance with condition 19 of the permit and ‘the Court could not go behind the Minister’s expression of satisfaction that the wind farm had demonstrated compliance’. In this case, Bald Hills had received a letter from the Minister stating that the wind farm was compliant at a particular point in time.
The Court found that the permit condition reference to the Minister’s satisfaction ‘indicates that the Minister is to be the responsible authority for monitoring and enforcing compliance’ with the condition, but that the Tribunal or Court is still the arbiter of compliance, rather than the Minister.
[Any assertion by the Minister would have been based on a series of fictions and tantamount to fraud, given that the defendant wind farm operator could not establish compliance with the noise condition of its planning permit, even with the clever tricks played by MDA – deleting and manipulating its noise data – and with the help of its ’star‘ acoustic expert witness, Chris Turnbull.]
Application of the 1998 Standard and permit conditions in achieving the purpose of protecting sleep
A key complexity arises from the approach of the 1998 Standard in assessing compliance with noise limits over time, compared with a specific condition in the Bald Hills planning permit that addresses compliance at night. The Court was concerned about intermittent loud noise interrupting sleep, even if overall compliance with the 1998 Standard was achieved.
Partly this complexity arises from the specific permit conditions applicable to Bald Hills.
[Any complexity about compliance arises from the fact that MDA destroyed and/or manipulated data and, in the end, the defendant could not present a shred of credible evidence to show that the noise generated by the wind farm satisfied the noise conditions of its planning consent. Quite simple, really.]
Compliance is not necessarily a defence to nuisance
The Court held that demonstrated compliance with the 1998 Standard and the planning permit ‘would not necessarily have established that the noise that from time to time disturbed [the claimants’] sleep was reasonable’ and therefore incapable of being a nuisance. Crucially, conclusions about average sound levels over time do not ‘negate’ variable and intermittently loud noise from the wind farm.
The Court’s approach indicates that particular instances of loud noise can still be substantial and unreasonable interference, therefore creating a nuisance.
However, the Court did state that if the wind farm had been able to demonstrate permit compliance at either dwelling the Court would have found that relevant (but ‘not determinative’) in assessing whether there is a nuisance. The Court was also influenced by there now being updated methodology in the 2010 NZ Standard and lower night noise limits in other States. The Court stated that it would nevertheless ‘also have taken into account that it is a matter of judgment whether 40 dB or 35 dB is an acceptable noise limit for rural dwellings at night, and that Victoria is the only Australian state that has adopted the higher limit.’
[Not precisely, no. All wind farm noise standards or guidelines are irrelevant when it comes to determining the actual noise effects on neighbouring residents. They were written by the wind industry’s pet acoustic consultants, including Chris Turnbull of Sonus and designed to allow wind turbines to be built less than a kilometre from homes. They exclude the effects of the low-frequency component of noise by exclusively using the dBA weighting; averaging noise levels so as to remove the pulsing, low-frequency content generated by turbines; and the so-called filtering of noise data by the acoustic consultants engaged by wind farm operators. Note again the remarkable ability of MDA to obtain lower recorded noise levels at neighbour’s homes AFTER a wind farm is built and wind turbines start operating. As to the utter irrelevance of wind farm noise guidelines and standards, including the NZ standard being discussed in this case, see the decision of the Administrative Appeals Tribunal, Waubra Foundation v Commissioner of Australian Charities and Not-for-profits Commission  AAT discussed in detail here.]
Relationship and response to claimants is important
The Court was critical of the way in which the successive wind farm operators had responded to the complaints over time. Ultimately, the Court found that the manner in which Bald Hills has dealt with the plaintiffs’ complaints warranted an award of aggravated damages.
The approach to tonality was a key issue and the Court was critical of the length of time the wind farm had known about the tonality issue but not actioned a long term remedy.
Further, a number of ex-plaintiffs gave damaging evidence for the plaintiffs, despite having settled their own claims. Among other things, it led the Court to find that the plaintiffs were not hypersensitive or over-reacting.
[The defendant, as is typical of wind power outfits everywhere, began gaslighting its victims from the very beginning. For a rundown on their appalling treatment by the operator, see our post here: Supreme Court Exposes Wind Industry’s Appalling Treatment of Wind Farm Neighbours]
What does this mean for other wind farms in Victoria?
Many Victorian wind farms are required to comply with the updated 2010 NZ Standard, rather than the 1998 Standard, and many wind farm permits have specific conditions that will bring nuance to assessment of compliance and nuisance in each case. The nuisance complaint and investigation process used in Bald Hills ceased to apply to operational wind farm noise from July 2021. All Victorian wind farms are also now required to comply with the Environment Protection Act 2017 and Environment Protection Regulations 2021 (the EP regime).
Under the EP regime, compliance with the ‘general environmental duty’ is required, in summary to minimise the risk of harm to human health including psychological health from noise, so far as reasonably practicable. An operator of a wind farm also has a duty to ensure that operational noise complies with the noise limits in the relevant standard, and to manage and review wind farm noise. Compliance with these requirements is a way that operators can comply with the general environmental duty.
The EP regime also provides that where wind farm noise is not compliant with the applicable noise standard, this is ‘unreasonable noise’ as defined in that regime. Of relevance then, where the 2010 NZ Standard is expressed as having been designed to ensure ‘reasonable’ amenity at neighbour receptors, and a wind farm can demonstrate compliance such that the noise is not ‘unreasonable’ under the EP regime, it remains to be determined whether, and in what circumstances, a Court would nevertheless conclude that wind farm noise is ‘unreasonable’ in a way that would constitute a common law nuisance.
Wind farm operators should therefore continue to comply with the applicable noise standard, and review and manage wind farm noise in accordance with the EP regime. Aspects of the Court’s decision regarding methodology may have implications for how the 2010 Standard is applied for other wind farms and should be carefully considered.
Noise management plans to be required under the EP regime include a requirement for addressing noise complaints, and this investigation and response will continue to be important where applicable.
[The key point of Justice Richard’s decision is that proving compliance with the so-called noise standards (whatever they might be) does not exonerate a wind farm operator if they wreck people’s ability to sleep comfortably in their own homes at night. That’s been the common law position for nearly 2 centuries and the gang from HSF might dust off their old torts textbooks and brush up on the law of nuisance and sleep: “a man is entitled to sleep during the night in his own house”: Halsey v Esso Petroleum Co Ltd  1 WLR 683 at 701.]
What does this mean for other States?
The Bald Hills decision is not binding on other States but it sets an interesting precedent.
In NSW, the regime for assessing and regulating wind farm impacts is different. In respect of noise impacts, there is less weight on the NZ Standard, with noise assessment being undertaken in accordance with the South Australian EPA Wind Farms Environmental Noise Guidelines 2009. There is a strong reliance on individual negotiations and neighbour agreements. That said, the legal principle is the same – that compliance with regulatory requirements and conditions of consent does not preclude common law nuisance claims.
Similarly, in Queensland, the outcome in Bald Hills means that wind farm operators should carefully investigate any noise nuisance complaints. Even if fully compliant with relevant conditions of a development approval issued under the Planning Act 2016 (Qld) for the wind farm, the specific noise restrictions contained in the State Code 23 – Wind Farm Development and the provisions of the Environmental Protection (Noise) Policy 2019 (Qld), this may not necessarily be a defence to a claim for common law nuisance. Operators should take steps to address the complaint and ensure that the wind farm is not causing a substantial and unreasonable interference with the acoustic amenity of a complainant’s property to mitigate this risk of a successful claim for common law nuisance.
Wind farm operators should also follow the Mt Emerald Wind Farm proceedings currently before the Queensland Supreme Court and consider what any decision ultimately means for their operations. In these proceedings, a neighbour alleges common law noise nuisance and breach of a condition of a development approval as well as misleading and deceptive conduct on the part of the acoustic engineering firm engaged by the wind farm owner to undertake noise predictions and modelling as part of its application for approval.
[What the team from HSF fails to mention about the Mt Emerald wind farm case is that the “acoustic engineering firm” being sued is none other than Marshall Day Acoustics (MDA), the same characters who deleted and manipulated the noise data at Bald Hills, and who decided not to present a single one of its acoustic consultants as a witness to defend its work there.
MDA’s hesitance to pop one of its consultants in the witness box was probably because it might have been a tad difficult to convince a Supreme Court Judge that “it became quieter at either Mr Zakula’s house or Mr Uren’s house after the wind turbines started operating in March 2015.”
And the Bald Hills is not the only place where MDA has destroyed data and/or written false reports claiming that the wind farm in question was in compliance with the conditions of its planning permit. MDA has been pulling stunts like that at Waubra and Cape Bridgewater since 2006. So, on its present form, STT wouldn’t be betting on MDA slipping the noose in the Mt Emerald case.]
In Western Australia, wind farm developments typically have few nearby neighbours and therefore face less acute risks in relation to operational noise. Nevertheless, non-compliance with the regulatory regime and noise standards presents dual risks pursuant to the offence framework under those regimes as well as private nuisance. Noise modelling and the defensibility of methodologies adopted is important not only in approval processes but subsequently during operation.
Recommendations for wind farm developers and operators
Our key messages for wind farm developers and operators from the decision in Bald Hills are:
- take state-specific advice about opportunities to minimise the risk of a common law nuisance claims;
[or better still, retain lawyers who understand the common law tort of nuisance, including the well-settled principle that “a man is entitled to sleep during the night in his own house”.]
- consider any acoustic expert advice or review required in relation to compliance or reasonableness of operational noise;
[retain any other firm than MDA, and ensure that the firms you do engage don’t destroy or manipulate data or share MDA’s remarkable ability to obtain lower recorded noise levels at neighbour’s homes AFTER a wind farm is built and wind turbines start operating.]
- carefully investigate any noise nuisance complaints;
[stop gaslighting, bullying, berating and lying to your victims. Start treating them like human beings, rather than wind industry roadkill, as you’ve been doing for the best part of 20 years.]
- implement necessary steps to ensure compliance with the regulatory regime in the relevant jurisdiction and any project-specific conditions of approval; and
[if you are trying to claim compliance, then don’t rely upon the likes of MDA. But, here’s a thought, instead of claiming compliance with the so-called ’standards‘, why not listen to your victims and treat them with respect, according to law?]
- check neighbour agreements (operational and pro forma for future projects) to ensure they appropriately address common law nuisance liability.
[note that under these agreements, neighbours are required to literally sell their souls for somewhere between $5,000 to $10,000 a year, giving up their right to complain about the wind turbine noise that will inevitably torment them, being gagged about the agreement itself, and relinquishing their right to sue in nuisance.
Anyone who has entered such a monstrously one-sided arrangement might well seek to have a Court set the agreement aside on the basis that they were lied to by the operator about the actual noise impacts they would experience, thereby entering an agreement based on misleading and deceptive conduct. The Bald Hills case provides them with a great starting point. It also provides neighbours with a very good reason to not enter these so-called ‚good neighbour agreements‘, in the first place.
If you think that wind farms make good neighbours, we suggest you read the summary of the evidence given by the victims at Bald Hills in our post: Landmark Decision Vindicates Victims: Supreme Court Orders Total Wind Farm Shutdown.]
via STOP THESE THINGS
April 25, 2022, by stopthesethings