Wind farm nuisance test case starts in Victoria Supreme Court
7th September, 2021
by Emma field and Rio Davis,
What could become a landmark legal battle to determine if a Victorian wind farm created a significant nuisance for its neighbours in underway in Victoria’s Supreme Court.
- John Zakula and Noel Uren from Tarwin Lower claim noise from the Bald Hills wind farm reduced their enjoyment of their properties
- The wind farm’s operator says it’s taken measures to mitigate noise, and the level of noise was reasonable for a rural area
- One of the plaintiffs has bricked in his bedroom window and abandoned his farming plans, his lawyer says
The civil case against the Bald Hills wind farm near Tarwin Lower, in Victoria’s south-east, is expected to run for two weeks.
The plaintiffs are John Zakula, who lives about a kilometre from the nearest turbine, and Noel Uren, who sold his property next to the wind farm in 2018.
They are claiming damages and aggravated damages, saying they suffered sleep deprivation, loss of income and decreased property values.
They also seeking an injunction to have the turbines turned off under certain conditions, particularly at night.
To establish nuisance, the plaintiffs must prove that the turbines caused them substantial and unreasonable interference with their enjoyment of their properties.
While the case could set a precedent, Justice Melinda Richards said it was constrained to the facts of the matter.
“There are a confined set of issues for determination,” she said.
“It is not a broad-ranging inquiry into wind farms.”
Court heads to South Gippsland
Justice Melinda Richards said she would visit the wind farm on Wednesday.
Victoria is in lockdown, but court officials and two lawyers have received permission to make the trip.
Justice Richards said she and two of her associates would take a COVID-19 test before they visited the farm and she encouraged the two lawyers to do the same.
- 2015: Wind farm begins operations, residents launch legal action
- 2020: Supreme Court case upholds the validity of a South Gippsland Shire Council-commissioned report
- 2021: Six plaintiffs launch case and are joined by seven other. Now only two remain
The plaintiff’s legal team set out a broad suite of evidence arguing the effects of the noise form the wind farm were both “substantial and unreasonable”.
Mr Zakula’s lawyers told the court on Monday he had taken drastic action to try and minimise the noise.
“Mr Zakula can’t sleep most nights,” barrister Joel Fetter said.
“He’s bricked in his bedroom window to deal with the noise.”
The court heard the nearest turbine was 1,131 metres from Mr Zakula’s house, which he built in 2015.
Because the house was not built when the planning permit was issued, the condition of a maximum noise level does not apply to his residence.
But the wind farm’s defence barrister, Albert Dinelli, said the operator had performed monitoring at his house and ensured the noise levels were under the permit levels.
“Your Honour ought conclude the conduct of the wind farm is of a responsible corporate citizen,” he said.
Property values plunged, court told
Mr Zakula and Mr Uren’s lawyers told the Supreme Court on Monday that the noise from the 52 wind turbines caused the men headaches and sleep deprivation.
The claimant’s lawyers also said the noise meant Mr Zakula had abandoned plans to start an organic farm on his property and reduced his property’s value by 25 per cent, or $200,000.
“He’s had to give up the farm because he can’t stand to be outside,” Mr Fetter said.
The nearest turbine to Mr Uren’s residence was 2,167m.
When he sold in 2018, the court heard, it had lost $191,000 in value.
The wind farm operators undertook several stages of “curtailment” measures before and during the operation of the turbines, the court was told.
Offers were made to Mr Zakula for further noise abatement on two separate occasions.
Mr Dinelli said while the two plaintiffs’ subjective experience should be considered in the case, the findings of an “objective person” were more important.
Noise study questioned
A wind farm noise study ordered by Victoria’s Planning Minister was also questioned by the plaintiffs and defended by Bald Hills’ legal team.
Lawyers for the pair told the court a pre-operation noise survey to measure background noise report was not conducted at Mr Uren’s property.
“Mr Uren’s house is missed in this report,” Mr Fetter said.
He said in order to make a full assessment of the wind farm noise the company commissioned to do the study required the background noise data, plus the reading of the turbine noise.
Mr Fetter said this would not have been possible without Mr Uren’s data.
“The fact they never did background monitoring on his house means there is no background data on his house,” he told the court.
“You’ve got to cheat and take background data from another location to get this data.”
The defence’s argument that the measurement was appropriate rests on the expert evidence of Chris Turnbull, an acoustic engineer who reviewed the company’s sounds measurements.
But the defence will argue that taking background noise data from a proxy location – in this case a different neighbour’s residence – is appropriate.
The case continues.