Barely Legal: Victorian Wind Industry Furious As Noise Affected Neighbours Finally Get Justice

The wind industry’s Victorian onslaught has hit the wall, as lawyered up neighbours pursue noise nuisance cases against their tormentors.

It all started at a place called Bald Hills with a lawyer named Dominica Tannock – and her firm, DST Legal: Litigation Breakout: Victorian Wind Farm Neighbours Pursuing $Millions from Wind Developers for Noise Nuisance

Dominica’s clients at Bald Hills pursued the wind power outfit responsible for their thumping, grinding misery under the Public Health and Wellbeing Act, that prohibits noise “which is, or is liable to be, dangerous to health or offensive”.  In “determining whether a nuisance arising from [noise] is, or is liable to be, dangerous to health or offensive regard must not be had to the number of persons affected or that may be affected; and regard may be had to the degree of offensiveness.”  Where “offensive” means “noxious or injurious to personal comfort”. For more on the operation of the Act: Victorian Vengeance: Neighbours Launch $Multi-Million Noise Nuisance Law Suit Against Wind Farm Operator & Local Council

Dominica’s tenacity in the pursuit of justice for her clients is exemplary, and has become a major headache for wind power outfits across Victoria.

STT has heard a recent whisper that a wind power outfit has settled a noise nuisance claim (on confidential terms) pursued by one Western Districts farming family, forking out a seven-figure sum to compensate them for their years of unnecessary suffering. STT hears that a number of other claimants (also clients of Dominica Tannock) are lining up for similar deals.

Needless to say, the wind industry in Victoria is ruing the day it ever crossed swords with Dominica Tannock.

On the other side of the battle sits Herbert Smith Freehills – a mega-law firm that has made a veritable fortune acting for its wind industry clients. With Dominica Tannock giving the wind industry hell, a group of young hotshots from HSF put together this lament, bemoaning the fact that the laws of the State of Victoria are finally being applied in favour of their clients’ long-suffering victims.

Recent developments in the regulation of noise from wind energy facilities in Victoria
Lexology
Heidi Asten, Ellen Tarasenko and Thomas Ellicott
30 August 2019

Wind energy facility proponents should take note of recent developments in the regulation of noise impacts from wind energy facilities in Victoria, which signal increased scrutiny of noise impacts from operations. This includes:

• South Gippsland Shire Council’s finding of statutory nuisance under the Public Health and Wellbeing Act 2008 (Vic) (PHW Act) in relation to the Bald Hills Wind Farm;
• The impending introduction of the general environmental duty in relation to noise under the Environment Protection Act 2017 (Vic); and
• The Victorian Civil and Administrative Tribunal’s (VCAT) consideration of the application of the high amenity noise limit under the New Zealand Standard Acoustics – Wind farm noise NZS 6808:2010 (2010 NZS) to the Farming Zone in Naroghid Wind Farm Pty Ltd v Minister for Planning [2019] VCAT 800 (3 June 2019) (Naroghid).

These developments highlight the significance of proactive and robust management of noise impacts for both existing and proposed wind energy facilities.

South Gippsland Shire Council’s investigation of Bald Hills Wind Farm under the PHW Act

In March 2019, the South Gippsland Shire Council (Council) determined that the Bald Hills Wind Farm had caused nuisance under the PHW Act as a result of noise from the operation of its wind turbines. The decision followed a Supreme Court of Victoria ruling requiring the Council to engage an independent health assessor to consider the complainants’ concerns.

In reaching its finding that a nuisance had been caused, the Council attributed weight to noise logs, and evidence of health impacts provided by the complainants. Significantly, the decision was made notwithstanding reported compliance with the noise conditions of the planning permit for Bald Hills Wind Farm. The lack of directly comparable data correlating timing, location and nature of noise emissions between the formal noise compliance monitoring and the noise complaints presented some challenges to all parties.

The decision is the first finding of nuisance under the PHW Act in relation to noise from the operation of wind turbines. The decision has not been appealed, and may set a precedent for other local government authorities in PHW Investigations. Our key observations in relation to the decision are:

• Compliance with planning permit conditions does not necessarily preclude a finding of nuisance under the PHW Act in relation to noise from wind energy facilities;
• Evidence of impacts on sleep, and corroboration by an independent expert of high levels of audible noise from wind turbines within dwellings was central to the finding of nuisance;
• Wind energy facility proponents may wish to consider whether their post-construction monitoring addresses consideration of any noise complaints they receive; and
• Wind energy facility operators will need to engage with complainants and councils if nuisance complaints are made under the PHW Act.

The new general environmental duty

The Environment Protection Act 2017 (Vic) will require wind energy facilities to comply with a new ‘general environmental duty’ (GED) when it comes into effect (along with a whole suite of other reforms), currently expected to be in mid-2020. The GED will operate separately from planning permit requirements, and from noise nuisance considerations, including under the PHW Act.

The GED will require that ‘a person who is engaging in an activity that may give rise to risks of harm to human health or the environment from pollution or waste must minimise those risks, so far as reasonably practicable’. Significantly, ‘human health’ is defined to include ‘psychological health’. The GED will require management of noise impacts from operations, given that the definition of ‘pollution’ includes noise pollution. A person commits an offence if they contravene the GED in the course of conducting a business undertaking.

The Environment Protection Authority (EPA) will have primary responsibility for regulating the GED. However, third parties may also bring actions for breach of the GED in some circumstances, and seek civil and compensation orders in respect of injury, loss or damage resulting from a contravention.

Wind energy facility operators should consider:

• What are the risks of harm to human health or the environment from operation of the wind farm, including in respect of noise?
• To what extent can the risk of harm be avoided, and has this been done so far as reasonably practicable?
• To what extent can the risk of harm be mitigated, and has this been done so far as reasonably practicable?
• To what extent are their procedures to engage with the local community effective in resolving issues or complaints that may arise during operation?

The EPA is yet to release detailed guidance as to how it intends to regulate the GED, including in the context of wind energy facilities. Once released, such guidance will be an important means of understanding the EPA’s likely approach. The EPA will also be releasing subordinate legislation under the new regime, including environmental reference standards which will regulate noise emissions and replace existing State environment protection policies.

The Naroghid decision

In Naroghid, VCAT considered a planning permit application for a 12 turbine wind energy facility in Corangamite, in the vicinity of Cobden.

VCAT refused to grant a permit for the wind energy facility on a number of grounds. However, of broader relevance to the industry, the decision provides a discussion of the application of the high amenity noise limit under the 2010 NZS to the Farming Zone. The high amenity noise limit under the 2010 NZS applies a limit of 35dB or background +5 dB, as opposed to 40dB or background +5 dB in other areas under the 2010 NZS.

While the Tribunal did not make a final ruling on the issue, it expressed the view that the high amenity noise limit should apply to non-stakeholder dwellings in the Farming Zone. The discussion on this point is contrary to the finding in another VCAT decision in Cherry Tree Wind Farm Pty Ltd v Mitchell SC & Ors (Includes Summary) (Red Dot) [2013] VCAT 521 that the high amenity noise limit does not apply in the Farming Zone. While the Tribunal in Naroghid agreed that the planning scheme is the relevant ‘plan’ relevant to application of the NTS 2010 in this context, the Tribunal’s discussion went on to attach particular weight to EPA Publication 1411 Noise from Industry in Regional Victoria (October 2011). Based on the approach to noise amenity in NIRV (a reference document in the Planning Scheme which is currently being updated), the Tribunal suggested that a high amenity noise limit should be applied to the Farming Zone.

While the discussion in Naroghid is not authority for the application of the high amenity noise limit to the Farming Zone, wind energy facility proponents may wish to consider noise compliance risks at dwellings within the 35dB noise contour.
Lexology