Energy Law Update - Tilting at windmills?: Wind farm operator’s challenge to council nuisance finding fails

Energy Law
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Bald Hills Wind Farm Pty Ltd v South Gippsland Shire Council [2020] VSC 512

Bald Hills Wind Farm, situated between Venus Bay and Walkerville, is made up of 52 wind turbines and has been operating since 2015. A group of neighbouring residents submitted complaints to the South Gippsland Shire Council under the Public Health and Wellbeing Act 2008 (Vic) (the ‘PH&W Act’) that the wind farm created an acoustic nuisance that caused the complainants to suffer headaches and sleep disruption. 

The Council investigated the complaints and found that the wind farm did create a nuisance affecting the complainants, but only intermittently. However, rather than deciding to take administrative action or commence a prosecution under the PH&W Act, the Council notified the complainants that the matter was better settled privately, through mediation or civil proceedings. The complainants have since engaged in an unsuccessful mediation with the wind farm operator and have now commenced a proceeding in nuisance in the Supreme Court of Victoria, seeking damages and injunctive relief against the wind farm operator. 

Separately from the pending nuisance proceeding, the wind farm operator pursued judicial review, seeking to quash the Council’s finding of nuisance, or obtain a declaration that the finding was tainted by jurisdictional error and was therefore invalid. Importantly, the Council’s finding, and the outcome of the judicial review proceeding, are independent of and not binding on the pending nuisance proceeding. The wind farm operator’s claim to have standing to seek judicial review was based largely on the fact that the Council’s finding of nuisance adversely affected its reputation. 

The PH&W Act applies to nuisances that are or may be dangerous to health, noxious or injurious to personal comfort. Local councils are required to investigate complaints of nuisance and to remedy all existing nuisances ‘as far as is reasonably possible’. If a council finds that a nuisance exists, it must either take administrative action or commence a prosecution under the PH&W Act or, if it is satisfied that the matter is better settled privately, advise the complainant of the available methods to do so. 

The PH&W Act regime stands apart from the planning permit and compliance regime under the Planning and Environment Act 1987 (Vic). The wind farm was subject to permit conditions relating to noise emissions, which were referenced to a New Zealand standard. The wind farm operator had undertaken a post-construction noise monitoring program, through which it had carried out a noise curtailment strategy to reduce noise levels to within acceptable levels at 13 neighbouring properties (which did not include the properties of the complainants to Council under the PH&W Act). The steps that the wind farm operator had taken to reduce noise to acceptable levels for planning compliance purposes loomed large in its arguments that the Council should not have found that the wind farm was continuing to create a nuisance. 

The wind farm operator advanced two main arguments that the Council’s finding was affected by jurisdictional error and was invalid. First, it argued that the Council had failed to address the ‘reasonableness factors’ that are relevant in determining a nuisance proceeding at common law. The Court held that those reasonableness factors were not mandatory considerations for a council under the PH&W Act framework, as those factors were not specified in the Act and having regard to the provisional nature of a council finding of nuisance under the Act: [77] and [79]. Secondly, the wind farm operator argued that the Council had failed to have regard to material that the wind farm operator had submitted about the precautions taken to minimise noise, the social benefit that the wind farm provides and the location of the wind farm. The Court was satisfied that the Council did have regard to each of those matters: [89]. Accordingly, the wind farm operator failed to establish that the Council’s finding of nuisance was affected by jurisdictional error. 

The judicial review proceeding is an intriguing one, coming after several years in which community concerns about adverse health effects of wind farms have largely abated. In his most recent annual report, the National Wind Farm Commissioner reported having received only 8 complaints relating to operating wind farms in 2018. The PH&W Act process in Victoria is not well-suited to investigating and resolving complaints about noise effects from wind farms, as this case well demonstrates: the local council, having no specialist expertise in assessing the noise effects and their alleged health impacts, made a provisional finding of nuisance, and thereupon left the parties to resolve the complaints through private mediation or litigation. And, of course, the Supreme Court’s decision on judicial review does not vindicate the Council’s finding on the merits. While the complainants are left to pursue claims for nuisance and damages for wind turbine syndrome in court, the wind farm operator itself chose to litigate to set aside the Council’s finding of nuisance that had no legal consequence. The real test of the complaints will lie in the pending nuisance proceeding, if it runs through to trial and judgment. 

In the meantime, it might be said that both the complainants and the wind farm operator have been tilting at windmills.

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Tom Clarke practises in commercial, regulatory and public law, particularly in energy, commercial arbitration, financial services and private international law.

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