Wind farms, nuisances and the law

For years Australia’s wind farm has been reviled as ugly, noisy and unappealing by a number of public figures. Former Prime Minister Tony Abbott pathologized them, call the wind turbines the “dark satanic mills of the modern age”, not only being aesthetically problematic, but detrimental to health.

This latter view was rejected by the National Council for Health and Medical Research, who found “no consistent evidence that wind farms cause adverse health effects in humans”, although he agreed at the time “that further high-quality research on the possible health effects of wind farms should be required”. Literature examining the nature of wind farm complaints also notes “great historical and geographic differences in the distribution of complainants across Australia”.

Current Deputy Prime Minister Barnabas Joyce is another personality who never misses an opportunity to question the wider use of wind energy. In New South Wales, where his electorate is based, he warned the NSW government to “watch out” for the use of more turbines. “It’s not a bowl of cherries in this space,” the Nationals leader observed in typically gnomic fashion, “and that’s why you have to maintain your base load power.”

This put him at odds with the state government and its renewable energy program. Criticism of New England’s Renewable Energy Zone as turning its electorate “into a sea of ​​wind farms” did not impress Adam Marshall, NSW’s agriculture minister, in December 2020. In the newspaper The Land, Marshall, who is also a member of the Nationals, considered criticisms such as “banal, binary and prehistoric”.

On March 25, the Supreme Court of the State of Victoria gave citizens cause for joy, and policymakers and businesses potential cause for concern, by challenging the operation of these farms. the judgment found that noise from the Bald Hills Wind Farm based at Tarwin Lower in South Gippsland, “caused substantial interference with the two complainants’ enjoyment of their land – in particular, their ability to sleep soundly at night, in their own bed in their own house”.

There had been sufficient nuisance to warrant an award of damages and an injunction on the company to continue causing the noise at night, Bald Hills having failed to establish “that the sound received at one or the other [the plaintiffs’ houses] complied with the noise conditions of the permit at all times. While the relevant Planning Minister could “take enforcement action”, it was for the court or tribunal to determine whether compliance had taken place.

The two individuals in question – John Zakula and Noel Uren – sued the wind farm in 2021, alleging that the wind turbines were inflicting a “roaring” noise. Turns out Bald Hills had the most condescending form. Since the start of its operations in 2015, it had received “numerous complaints from local residents and landowners about the noise of wind turbines”. In 2015 alone, the Bald Hill register of registered complaints 50 complaints, some from Uren and Zakula, and all about noise pollution.

The company’s behavior in response to the complaints did not impress the court. Judge Melinda Richards decided that an award of aggravated damages was entirely appropriate. “The manner in which Bald Hills has dealt with Complainants’ reasonable and legitimate noise complaints, over many years, has at least doubled the impact of the loss of amenity each of them has suffered in their homes.” The judge ruled that Uren should receive $46,000 in aggravated damages, with Zakula expected to pocket $84,000.

Judge Richards was not indifferent to the implications of such a decision. Unlike Australia’s deputy prime minister, she showed no signs of prehistoric tendencies in her reasoning. Wind power generation, she acknowledged, was “a socially beneficial activity”. There was no reason, however, why it shouldn’t be “possible to get both a good night’s sleep and power generation at the same time”. The evidence presented to the court “did not suggest… that there was a binary choice to be made between the wind farm producing clean energy and a good night’s sleep for its neighbours”. The company could well have responded to Uren and Zakula’s complaints adequately “while continuing to produce renewable energy”.

Seen in its more specific context, the decision provides the renewable energy sector with an essential lesson. Even when engaged in socially responsible activities – in this case, renewable energy generation – companies need to be aware of the implications of their behavior for nearby residents. Being green and eco-friendly are noble undertakings, but barely enough when it comes to inflicting a nightmare on the residents.

Dominica Tannock, representing both applicants, suggested after its customers’ victory, “the implications are that Australian businesses will have to be very careful about complaints.” It was the company’s responsibility to behave reasonably, fairly and to “protect people’s sleep and if they don’t, there is precedent [now that] they can be closed.

The owner of the Bald Hills wind farm, Infrastructure Capital Group, says little in a statement responding to the ruling, simply that he was “currently absorbing the judgment and its implications.” They won’t be the only ones.

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