Thanks, but no thanks, says Bald Hills trial judge
9th September, 2021
by Sentinel-times; https://sgst.com.au/2021/09/thanks-but-no-thanks-says-bald-hill-judge/
The feathers are already flying in the Supreme Court fight between neighbours of the Bald Hills Wind Farm and its operators over allegations of “substantial and unreasonable” noise levels and Justice Melinda Richards had a few blows of her own to deliver.
Energy Commissioner blasted for ‘inappropriate’ call
IF JUSTICE Melinda Richards was still smoldering after the dressing down she gave wind industry heavy weight, Andrew Dyer, on the second day of the Supreme Court trial involving a nuisance claim against the Bald Hills Wind Farm, she didn’t show it while visiting the Walkerville area yesterday.
Justice Richards was taking a scheduled excursion away from the court room on Wednesday, September 8 to visit the site of the 52-turbine facility, also taking the opportunity to stop off at the homes of some of those due to give evidence in the case this week, including one of the plaintiffs John Zakula and prominent local farmers Dorothy and Don Fairbrother.
But, what she had to say about the “inappropriate” attempt at intervention in the case by Professor Dyer, the Australian Energy Infrastructure Commissioner no less, will not be forgotten in a hurry by those who heard it on Tuesday this week.
“This morning shortly before 9 o’clock my associate received a telephone call on my chambers’ number from Andrew Dyer, the Australian Energy Infrastructure Commissioner, who I understand was formerly the National Wind Farm Commissioner. I understand that Mr Dyer was one of a number of people who were watching the live stream of the proceeding yesterday,” Justice Richards said by way of opening remarks on the second day of the trial.
“Mr Dyer apparently wanted to let me know that there is a range of resources on his office’s website, and he also offered to speak with me about issues in the case. Needless to say, I will not be consulting the website and I will not be speaking with Mr Dyer.
“As my associate informed him, I will be making my decision on the basis of the evidence that I receive in the course of this trial.
“This is, of course, a trial of an adversarial proceeding involving a common law nuisance claim brought by Mr Uren and Mr Zakula against the Bald Hills Wind Farm. There are a confined set of issues for determination.
“It is not a broad-ranging inquiry into wind farms generally.
“While I don’t doubt that Mr Dyer’s contact with my chambers was well-intentioned, I do regard it as quite inappropriate, and I do not wish it to be repeated. If there is anything that arises from that I expect the parties will let me know.”
Even if the comments didn’t put the defence counsel for the Bald Wind Farm Pty Ltd, Albert Dinelli, off his game when he stood to provide his opening remarks in the case, it can’t have been the ideal start.
He followed Georgina Costello SC, barrister for the plaintiffs, Noel Uren and John Zakula, who made her opening gambit on Monday.
Mr Zakula and Mr Uren, the last of six aggrieved local landowners, who originally signed on to the case, are claiming aggravated damages, saying they suffered sleep deprivation, loss of income and decreased property values.
They are also seeking an injunction to have the turbines turned off under certain conditions, particularly at night.
Mr Dinelli set up his defence with remarks about the involved nature of noise testing, but he also homed in on Mr Zakula, who he said had purchased his property at Tarwin Lower when the permit for the wind farm already existed.
“Mr Zakula purchased a home in a rural zone where the permit was already in existence… and nevertheless proceeded to build a house on that some three years later,” allegedly failing to include proper soundproofing on the house despite “knowing that there is a turbine just over a kilometre away”.
He went on to say, however that this didn’t preclude Mr Zakula from bringing a complaint about noise.
Mr Dinelli also alleged there had been no claim made that the wind farm had devalued the surrounding farming land.
“That’s just not what this case is about. This case is about noise and infrasound and the plaintiffs, we say, bear the onus of establishing that that is substantial and unreasonable.”
The trial continues on Thursday, September 9 with the court due to hear from Walkerville farmers Don Jelbart, the plaintiffs John Zakula and Noel Uren with others to follow on Friday, including Sally Jelbart, Dorothy Fairbrother and Don Fairbrother, and further witnesses next week.
The trial is listed to continue until Tuesday, September 21.
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