No Christmas for wind farm operator or neighbours 

It’s all over bar the turbine noise.

The Supreme Court case, in which Tarwin Lower/Walkerville landowners, Noel Uren and John Zakula, are seeking aggravated and exemplary damages, plus an injunction against the operation of Bald Hills Wind Farm, came to a shuddering halt last Tuesday.

Whether the allegedly excessive noise coming from the turbines, especially those at the northern end of the wind farm near Mr Zakula’s house, come to a halt as well is yet to be decided.

The lawyers for the opposing camps gave their closing arguments, which took up most of the day, and Justice Melinda Richards, predictably announced she would be reserving her judgements while she works through the complex issues over the “coming weeks and months”.

She has three weeks of evidence to review.

With a couple of other proceedings on her plate, it’s unlikely Justice Richards will hand down a decision before Christmas.

There’s a lot at stake, not just the damages claims being brought by Mr Zakula and Mr Uren or the possibility that the operation of the wind farm might be impacted, even to the point of being shut down at night, but also because the decision will have implications for the operation of wind farms everywhere.

However, while Albert Dinelli, lawyer for the Bald Hills Wind Farm and Georgina Costello SC, for the plaintiffs, took up most of the court’s time last Tuesday, speaking to their weighty submissions (92 pages for the former and 47 pages for the latter), it was Justice Richards who made some of the most telling points on the day.

Whether or not the wind farm actually complies with Condition 19 of its planning permit, relating to the level of noise, “clearly audible” tones such as those allegedly created by faulty turbine gearboxes, impulses and amplitude modulation; became one of the central themes of the trial.

Speaking to this point, Mr Dinelli, said it was crucial that the Minister for Planning ultimately decided whether the wind farm was operating within the planning permit or not.

“Your Honour has seen what the Minister said in March 2019, indeed that he was satisfied, on the basis of those matters, that there was compliance. So, we say, read as a whole in this proper context, it’s plain that the Minister for Planning is intended to be the final arbiter of satisfaction of the requirements in condition 19,” Mr Dinelli said on the final day.

But Justice Richards wasn’t so sure.

“How does that proposition fit, Mr Dinelli with the compliance and enforcement framework in the Planning and Environment Act?” Justice Richards responded.

“I mean, I am quite troubled by the suggestion that the minister – acting as responsible authority here, so the minister has issued the permit – in the body of the permit has somehow not only made himself the regulator but also the adjudicator of whether the permit is complied with.”

However, after appearing to comprehensively tear down any suggestion that BHWF Pty Ltd had complied with Condition 19 of its planning permit, in their closing submission, the plaintiffs said the Minister’s “satisfaction” didn’t equal evidence of actual compliance.

“It seems that the defendant’s fallback is to rely on the absence of dissatisfaction from the Minister, throughout the period in which Mr Uren was living in his home. But as already set out, compliance with condition 19 does not turn on the Minister’s satisfaction,” said the plaintiffs.

In closing Ms Costello said Mr Zakula and Mr Uren had made out their claims of “substantial and unreasonable interference” with the enjoyment of their properties.

“The inevitable conclusion on the facts of this case, Your Honour, are that the defendant has not taken all reasonable precautions to minimise the nuisance, including because it hasn’t fixed the tonality defect, it hasn’t directed any efforts to turning down the noise to Mr Zakula and Mr Uren’s property; it’s instead just done investigations as to planning permit compliance.”

She said that an injunction forcing the operators of the Bald Hills Wind Farm to reduce the nuisance being caused for the neighbours of the 52-turbine facility was the only practical remedy and “Your Honour should order it.”

Ms Costello said the most appropriate form of injunction “would be for the Court to simply order that the defendant “abate the nuisance forthwith”. This has the advantage of permitting the defendant to select the abatement method, and it will presumably select the method which costs it the least. It also has the advantage that if there be any doubt about the effectiveness of a proposed method, the defendant is likely to err on the side of caution, rather than run the risk of contempt.”

Mr Dinelli also addressed the issue of the best way to reduce the noise, if the court found in favour of the landowners, but instead of an injunction that curtailed the operation of the wind farm, which would be “disproportionate to the damage done to the plaintiffs”, also bearing in mind that “the activity in question provides a public benefit”, the courts could consider a monetary remedy.

But, in the end, Mr Dinelli claimed it was clear “the sound-proofing measures in the Mitchell Report are the most effective means of addressing Mr Zakula’s complaints about noise”.

The options open to the court range from agreeing with Mr Dinelli, that some simple sound-proofing measures are all that’s required, right up to awarding millions of dollars in aggravated and exemplary damages, plus ordering restrictions on when the wind farm can operate.

It’s likely to be an anxious Christmas for Mr Zakula and Mr Uren, the operators of the Bald Hills Wind Farm, people like Professor Andrew Dyer, the Australian Energy Infrastructure Commissioner who tried to intervene in the case, the State Government and anyone investing in on-shore wind energy in Australia.