Wind Turbines

Landmark nuisance case against Wind Farm creates uncertainty and risk for renewable energy operators and projects operating with emission limits

A recent decision of the Victorian Supreme Court, which found the Bald Hills Wind Farm liable in noise nuisance, has a number of implications for renewable energy operators and other major projects operating with emissions limitations and facing community opposition.

The decision in Uren v Bald Hills Wind Farm Pty Ltd [2022] VSC (Uren), is significant not least because of the risk that it will encourage opponents of Wind Farms and other renewable energy facilities to use nuisance suits as a means of challenging their development and operations. The decision also suggests that no level of regulatory compliance will be sufficient to defeat a nuisance claim. This means any project operating with emission limits (noise, dust, odour or blast) may be liable in nuisance notwithstanding the fact that their emissions comply with both industry emission limits and the conditions of a planning consent.

To mitigate potential liability in nuisance any complaints alleging an interference with land or other property rights should be managed carefully and reasonable precautions should be taken to abate potential nuisance, based on peer reviewed expert evidence and legal advice.

Facts

The Bald Hill Wind Farm (the Wind Farm) in South Gippsland Victoria was the subject of considerable controversy and opposition long before it began operating in 2015.[1]

The planning consent for the Wind Farm’s development and operations, granted by the Victorian Minister for Planning, included detailed conditions on acoustic amenity and prescribed noise limits set out in the relevant noise standard, the New Zealand Standard 6808:1998 Acoustics – The Assessment and Measurement of Sound from Wind Turbine Generators (the NZ standard).

The plaintiffs (Mr Zakula and Mr Uren) were long time opponents of the Wind Farm and had made numerous complaints that a nuisance existed at their nearby properties due to the wind turbine noise. The Wind Farm relied on compliance reports from its acoustic consultants that the wind farm noise levels at the plaintiffs’ properties were consistent with the planning permit conditions. Therefore, no remedial action was taken in response to the noise complaints.

The plaintiffs made complaints to the South Gippsland Shire Council and sought to persuade the Council to bring statutory nuisance proceedings against the Wind Farm. Whilst the Council investigated and ultimately passed a resolution that an intermittent nuisance existed at the plaintiffs’ properties, it declined to bring proceedings against the Wind Farm.

The plaintiffs subsequently brought civil proceedings alleging common law nuisance from acoustic interference, attributable to the night time noise from the wind turbines. The plaintiffs’’ described the noise as a ‘continual roar’ and a regular ‘whooshing’ noise which disturbed their sleep, caused health problems and reduced the value of their land.    The plaintiffs sought an injunction to abate the nuisance and damages.

Decision

The Court found that the noise emissions from the wind turbines gave rise to an acoustic interference with the plaintiffs’ enjoyment of their land, which was both substantial and unreasonable.   The Wind Farm had failed to take reasonable precautions to abate this interference and was therefore liable for the nuisance.

The Court awarded the plaintiffs’ damages of $130,000 for past loss of amenity, due to the acoustic interference, based on the sum of $1,000 per month for each plaintiff. The Court found that the Wind Farm’s failure to take any remedial action to reduce the noise at the plaintiffs’ properties was unreasonable where at least two ‘reasonable precautions’ could have been employed to reduce the noise.   While the Court recognised the value of the clean energy generated by the wind farm and found that it was in the public interest for the wind farm operations to continue, this did not give rise to a social and public utility defence. The Court held that the Wind Farm’s generation of clean energy should not be at the expense of a good night’s sleep for its neighbours.[2]

Aggravated damages, in the amount of $130,0000, were also awarded by the Court due to the Wind Farm’s high-handed’ conduct towards the plaintiffs and the unsatisfactory manner in which it handled noise complaints. The Court criticised the Wind Farm’s ‘strikingly disproportionate’ response to noise complaints made to the Council[3] and the fact that it had repeatedly denied the plaintiffs had any cause for complaint and treated them as ‘hypersensitive trouble-makers’.[4]

Accepting that damages were not an adequate remedy the Court also imposed an injunction on the Wind Farm restraining its night time operations and requiring it to take steps to abate the nuisance.

While no damages award was made in respect of reduced property values the Court found that if the nuisance were to continue (i.e. if the Court had not imposed an injunction) Mr Zakula would have been entitled to damages of $200,000 for the diminution in the value of his land attributable to the nuisance.[5]

COMMENT

Increased risk of litigation – opponents may use nuisance suits to challenge developments and project operations

The successful nuisance action in Uren has important implications, not only for wind farms, but for any renewable energy operators and major projects operating with emission limits due to the uncertainty and ongoing risk of nuisance litigation in spite of regulatory compliance.

Litigation against wind farms in Australia has generally raised questions of planning law including third party objectors to the grant of planning consent.[6] However, Uren could foreshadow an increasing trend in the use of nuisance claims, by opponents, as a means of challenging developments and restricting operations.  This trend has already been observed in other jurisdictions, including the US and the UK, where nuisance claims against wind farm operators have alleged various interferences including noise, the strobe and flicker effect of light from the rising or setting sun hitting the turbine blades, the danger posed by thrown blades, and the unsightly or aesthetically displeasing nature of wind turbines.[7]

In the wake of Uren, wind farms, renewable energy operators and other projects should manage nuisance complaints carefully and engage with opponents in a reasonable manner in order to avoid restrictions being imposed, or aggravated damages being awarded.  To further mitigate the risk of nuisance litigation, and provide a reasonable precautions defence, any expert evidence or consultant reports should be thoroughly peer and legally reviewed to ensure that all reasonable remedial measures are identified and employed.   

Compliance with emission thresholds not a defence to nuisance

Authorities which have considered the relationship between nuisance and planning have variously found that planning consent compliance or compliance with licence approvals is neither determinant of liability in nuisance, nor an authority to commit nuisance.[8]

The Court in Uren followed this approach finding that compliance with the noise limits of the planning permit would be relevant to the question of reasonableness, but would not be determinative of the Wind Farm’s liability in nuisance.

In Uren, the Wind Farm was not operating in compliance with the noise conditions of its planning permit and the Court was therefore not required to determine the relationship between this compliance and its liability in nuisance. Even so the Court considered the interrelationship between regulatory compliance with emission thresholds and nuisance concluding that even if the Wind Farm had demonstrated compliance with both the NZ standard and the noise conditions of its planning permit, this would not necessarily have established that the noise that disturbed the plaintiff’s sleep was reasonable.[9]

In Uren, the Court considered that the noise limits in the planning conditions provided a useful benchmark for determining whether the noise limits giving rise to the nuisance were acceptable for rural dwellings at night.[10]  The Court concluded that if the Wind Farm had been able to prove its compliance with the noise limits of its planning permit this would have ‘given weight to its contention that the noise from the wind farm [was] at reasonable levels…’.[11]   This approach is consistent with that taken by UK Courts, dealing with noise nuisance, which have held that noise thresholds are a useful tool for regulating potentially intrusive activity, but are not a means of establishing whether the interference amounts to an actionable nuisance.[12]

Uren suggests that no level of compliance with emission thresholds will act as a bar to nuisance claims. Such compliance will only be relevant to determining the reasonableness of the alleged interference and to the award of damages. Thus, if noise or other emissions from a project cause a substantial and unreasonable interference with another’s property rights, a developer, landowner or project operator may be liable for nuisance notwithstanding the fact that a project is operating in compliance with planning consent conditions and other emission thresholds.

Compliance with planning consent to be determined by the evidence not the relevant planning authority 

In Uren the Wind Farm sought to rely on a letter of comfort provided by Minister of Planning, as the responsible planning authority, as evidence of its compliance with the noise conditions of its planning permit.

The Court held that the Minister’s letter was no more than an expression of his opinion that the Wind Farm was in compliance with the noise emissions conditions of the permit at that particular time.  While the Minister was the responsible authority under the relevant planning legislation and had the power to bring enforcement action the Court found that the Minister was not the ‘final arbiter’ of compliance. The issue of compliance with the planning consent conditions was to be determined by the Court on the evidence in the proceedings and not the relevant planning authority.[13]

It is relevant that in Uren the letter from the Minister, was not a formal decision or determination and according to the Court had no legal effect. The Court did not address whether a formal regulatory determination or decision of the Minister would have been afforded more weight by the Court in its assessment of the Wind Farm’s compliance with the conditions of its planning permit. Nevertheless, it is clear that reliance should not be placed on letters of comfort, or other statements or indications from planning authorities or other regulators about a projects’ compliance with planning conditions or other approvals.   Regulatory compliance will be determined by the Court or Tribunal on the facts and evidence and questions about this compliance should be the subject of legal advice.

Legal and peer review of expert evidence

The Uren decision also highlights the importance of reliable legal and peer assessed expert evidence in determining regulatory compliance and what, if any, remedial action should be taken to address alleged sources of nuisance.

In Uren the Court had regard to considerable acoustic assessments and reports as well as evidence given by three acoustic experts. One of the issues the Court considered was the way in which the experts had applied the NZ standard in assessing noise limit compliance.

The Court was critical of both the expert and consultant acoustic evidence on which the Wind Farm relied, finding that the Wind Farm’s acoustic expert had not followed the prescribed methodology in the NZ standard. Moreover, the Court denounced the fact that the Wind Farm had relied upon and accepted the findings in acoustic reports provided by its acoustic consultants which were ‘plainly untenable’, ‘obviously unsound’[14] and contained ‘patently absurd conclusions that it was quieter at both properties after the wind farm started operating’.[15]

Where a project is on notice of a potential nuisance legal advice should be obtained to ensure that remedial action taken is sufficient to demonstrate that all reasonable precautions have been taken. In Uren the Court found that the Wind Farm had not taken all reasonable precautions to avoid creating the nuisance and identified at least two further precautions the Wind Farm could reasonably have taken to reduce noise levels.

It will be a defence to nuisance if it can be demonstrated that all reasonable precautions have been taken to avoid the interference, or if a project’s social utility justifies the interference. In Uren the clean energy value of the Wind Farm’s operations was not considered sufficient to ‘justify’ the interference with the plaintiffs sleep and meet the ‘social utility’ defence to nuisance. Thus, the only viable defence for the Wind Farm was to demonstrate that it had acted reasonably and had taken reasonable steps to mitigate the noise – which it had not done.

Remedial measures taken, in response to nuisance complaints, must meet the legal standard of reasonableness if they are to provide a defence to nuisance. Legal advice at an early stage is therefore crucial for any projects dealing with truculent community members or opponents alleging interference with their property rights.

For any queries please contact Rosie Jervis, Special Counsel rhj@bllawyers.com.au.

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Uren reflects the general unwillingness of the Judiciary to usurp common law property rights – even where the activities interfering with those rights are undertaken in compliance with statutory approvals, and provide an important source of renewable energy.  In the absence of legislative protections, projects which generate noise or other impacts to private properties will face an ongoing level of uncertainty and risk from potential nuisance litigation.

[1] Approval for the Wind Farm was initially refused under the Environment Protection and Biodiversity Conservation Act 1999 due to an alleged threat to the endangered orange-bellied parrot.

[2] Uren [244]

[3] Uren [385] and [386]

[4] Uren [384]

[5] Uren [364]

[6] Thackeray v Shire of South Gippsland [2001] VCAT 739; Thackery v Shire of South Gippsland [2001] VCAT 922; Energy Equity Corporation Ltd v Glenelg SC (1997/89087) AAT of Victoria, Planning Division, Appeal Nos 1997/890/87 (unreported); Taralga Landscape Guardians Inc v Minister for Planning [2007] NSWLEC 59; Kittel & Vandepeer v DC of Yankalilla & Wind Farm Devt No ERD-02-547, ERD-02-593 [2002] SAERDC 131.

[7] See: Burch, et al. v. Nedpower Mount Storm, LLC and Shell Wind energy, Inc., 220 W. Va. 443, 647 S.E.2d 879 (2007), Davis v Tinsley, Watts, Fenland Windfarms Ltd, EDF Energy PLC & Fenland Green Power Co-operative Ltd, before Mr Justice Hickinbottom in the High Court (Queens Bench Division), confidentially settled. https://www.bbc.com/news/uk-england-lincolnshire-15964338

[8] See: Lawrence v Fen Tigers [2014] 1 AC 822; Seidler v Luna Park Reserve Trust (Supreme Court of New South Wales, Hodgson J, 21 September 1995)

[9] Uren [241]

[10] Uren [240]

[11] Ibid.

[12] Pusey v. Somerset County Council [2012] EWCA Civ 988, paras 26-27; Barr v. Biffa Waste Services [2012] EWCA Civ 312.

[13] Uren [102]

[14]  Uren [183]

[15] Uren, [384]