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.
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