Wind farm noise may be a nuisance – but compliance remains a critical issue

Snapshot

• 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.