- The loss of amenity for a surrounding landowner due to wind turbine noise can form the basis of a successful claim in private nuisance. This is the first time a successful claim has been made on these grounds against a wind energy facility operator in Australia.
- Correctly understanding and applying applicable noise standards is a critical component of managing overall legal risk. For the first time, judicial guidance has been provided on how to interpret and apply various aspects of a noise standard that is applicable in Victoria.
- Compliance with applicable noise standards will reduce, but not eliminate, all legal risk. Additional risk mitigation strategies may also be required, such as developing social licence to operate, using neighbour agreements, properly interrogating consultant reports, independently verifying regulator statements of compliance, and appropriately responding to landowner complaints.
A recent decision of the Victorian Supreme Court in Uren v Bald Hills Wind Farm Pty Ltd  VSC 145 (Uren) relating to wind turbine noise has a number of significant implications for the wind industry.
In February 2020, two neighbouring residents to the Bald Hills wind farm commenced proceedings in the Supreme Court against the wind farm operator, alleging private nuisance. A successful claim in private nuisance requires a substantial and unreasonable interference with a person's use or enjoyment of their land.
Extensive evidence was given on both sides in relation to these issues, but ultimately the Court decided that noise from certain wind turbines at the wind farm caused a substantial, albeit intermittent, interference with both plaintiffs' use and enjoyment of their land. The Court ordered:
- an injunction preventing the wind energy facility (WEF) operator from continuing to permit noise from certain wind turbines at night and to take necessary measures to abate the nuisance; and
- payment of $260,000 to the plaintiffs, which included an award of aggravated damages.
No appeal to the decision was lodged within the requisite timeframe (which ended on 11 May 2022). Therefore, the legal principles contained in the Uren decision currently represent the law in Victoria.
The decision contains a number of significant implications for the wind industry and we have summarised the key take-aways below:
A loss of amenity can form the basis of a successful claim against a WEF operator in private nuisance.
In Uren, the Court found that there is no need to demonstrate any property damage or personal injury in order to successfully establish a private nuisance claim. An interference with the plaintiffs' ability to sleep undisturbed in their beds at night is a substantial (although intermittent) interference with the amenity of the plaintiffs’ properties, and is a sufficient basis for a successful claim in private nuisance. While the fact that loss of amenity can be the basis for a claim in private nuisance is not new, as far as we are aware, this is the first time it has formed the basis of a successful claim against an Australian WEF operator. Given loss of amenity due to wind turbine noise has now been accepted by a Court as an appropriate basis for a claim in private nuisance against a WEF operator, we expect there will be other claims made on a similar basis in the future.
Correctly understanding and applying applicable noise standards is a critical part of appropriately managing overall legal risk.
Part of Bald Hills' defence to the private nuisance claim was that it complied with the appliable noise standard (which was the 1998 Standard). However, the Court found this was not established on the evidence – the acoustic expert called by Bald Hills had not used the method for assessing wind farm noise prescribed by the 1998 Standard. In particular, the 1998 Standard requires wind farm noise levels to be derived by comparing the background sound level regression line with the regression line for the operational wind farm and this had not been done. In addition, the Court made various comments about when special audible characteristics exist under the 1988 Standard and how they should be determined. Given this is the first time a Court has considered the 1998 Standard, and there are a number of similarities between this standard and the now more commonly used 2010 Standard on the issues that were considered, in our view there are a number of significant implications which flow from this:
- annual statements: from 1 July 2022, WEF operators will be required to provide an annual statement to the EPA within three months of the end of the financial year (this may be extended to four months if the current exposure draft of the WEF regulations are implemented). Among other things, these annual statements need to demonstrate whether wind turbine noise complied with the noise limits set out in the applicable noise standard. Therefore, these annual statements will need to comply with the interpretation of the applicable noise standard as outlined by the Court in the Uren decision;
- historical legal exposure: WEFs that have historically undertaken assessments following an approach similar to that adopted by Bald Hills (and therefore would not be able to demonstrate compliance with the applicable standard for the same reasons that Bald Hills was not able to demonstrate compliance in the Uren decision), should consider their potential level of exposure to historical private nuisance claims or other enforcement action and take action where the circumstances justify it. This may include for example reaching agreements with affected landowners or adjusting turbine operational modes in certain circumstances to ensure compliance; and
- new legal exposure: from 1 July 2022, under section 309 of the Environment Protection Act 2017 (Vic) (EP Act 2017) an eligible person can seek a Court order restraining a person from engaging in specified conduct, or requiring a person to take specified conduct, where the Court is satisfied that a person is contravening or has contravened a duty, including the general environmental duty (GED). In order to discharge the GED, a WEF operator is required under regulation 131C(1) of the Environment Protection Regulations 2021 (Vic) (EP Regulations 2021) to ensure that wind turbine noise complies with the noise limits set out in the applicable noise standard. In our view, there is a risk that third parties will seek to restrain WEF operators by utilising these new provisions, in circumstances where they can show noise compliance assessment reports do not appropriately apply the relevant noise standard applicable to the WEF as interpreted by the Court in Uren. This type of claim has a number of strategic advantages for a plaintiff when compared to a claim in private nuisance, because it circumvents the need to make out some of the more challenging aspects of a claim in private nuisance, such as that there has been both a substantial and an unreasonable interference with the plaintiff's use and enjoyment of their land.
Properly interrogating consultant reports and independently verifying regulator statements of compliance are important components of overall legal risk management.
A typical approach to managing noise compliance risk is to obtain regular noise assessments against applicable standards. This was done by Bald Hills and the relevant assessment reports did in fact demonstrate compliance with the applicable standards. However, the Court in Uren was very critical of the assessments that were undertaken, which is highlighted in the following paragraph of the judgment:
As discussed, MDA reached the remarkable conclusion that the noise levels at both residences were lower overall than the background levels used for comparison. No-one from MDA was called to explain these findings. They were plainly not tenable. It is simply not possible that it became quieter at either Mr Zakula’s house or Mr Uren’s house after the wind turbines started operating in March 2015 … It is not necessary to make any finding about why MDA’s assessments of wind farm operational noise at Mr Zakula’s and Mr Uren ’s properties went astray. The findings MDA expressed in both reports are obviously unsound, and do not demonstrate permit compliance at either property.
In our view, this demonstrates that WEF operators need to properly interrogate consultant reports to ensure they are robust in terms of inputs, method and outcomes and can withstand review from an independent court.
The Minister for Planning also wrote to Bald Hills on 23 March 2019 stating that he was satisfied that compliance with the requirements of condition 19 of the WEF planning permit was being demonstrated (this condition requires the WEF to comply with the applicable noise standard at specified locations to the satisfaction of the Minister for Planning). However, the Court found '[t]he question of whether the sound from the wind farm received on the plaintiffs’ land complied with the noise conditions in the permit at relevant times is to be determined on the evidence in this proceeding. It is not determined by the Minister’s letter of 23 March 2019.' In our view, this again demonstrates that WEF operators need to be objectively comfortable with compliance (and not necessarily rely on regulator statements of compliance).
Compliance with noise standards will reduce, but not eliminate, all legal risk.
Significant steps have been taken in recent times to ensure there is a robust, transparent and certain framework for regulating noise from operational wind turbines. This has included:
- implementing a framework to transfer responsibility for regulating WEF turbine noise from the Minister for Planning or local councils under the Planning & Environment Act 1987 (Vic) to the EPA under the EP Act 2017;
- excluding noise or emissions from wind turbines at WEFs from the public nuisance provisions in the Public Health and Wellbeing Act 2008 (Vic);
- and creating a specific regulatory framework under Division 5 (Part 5.3) of the EP Regulations 2021 which requires compliance with the 1998 Standard or 2010 Standard (as relevant) to demonstrate compliance with the GED, and also creates a detailed planning, assessment, monitoring, reporting and auditing framework.
Despite this, even if compliance can be objectively demonstrated with the requirements of the regulatory framework, comments made by the Court suggest that private nuisance claims can still be made. In particular, the Court said that:
Even if Bald Hills had been able to establish compliance with the noise conditions in the permit at the plaintiffs’ houses, this would not have been determinative of reasonableness. The noise limits under the permit and the Environment Protection Regulations are at the higher end of the range applied in Australia. Significantly, while the NZ Standard and condition 19(a) limit the extent to which continuous underlying noise levels are increased by wind turbine noise, they are not directed to intermittent loud noise from wind turbines, and provide no means of determining whether a wind farm produces unreasonably annoying noise in certain weather conditions, or on a particular night … I would also have taken into account that it is a matter of judgment whether 40 dB or 35 dB is an acceptable noise limit for rural dwellings at night, and that Victoria is the only Australian state that has adopted the higher limit.
It is a matter for each WEF operator to determine how far 'beyond compliance' with the applicable noise standard they take operation of the wind farm in order to manage legal risk. In our view, this should be driven by considerations such as the WEF operator's approach to social licence, how noise levels recorded at sensitive receptors compare to the noise limits set in the relevant noise standards, whether there is any evidence of intermittent loud noises from wind turbines or other unreasonably annoying noises that arise in certain weather conditions, the nature of any complaints received, the overall level of potential legal exposure and whether the WEF operator wishes to take an active or passive approach to managing associated legal risk.
How you respond to complaints is an important part of minimising legal risk exposure.
In Uren, the Court ordered that Bald Hills pay the plaintiffs aggravated damages. The reasons for this are explained by the Court in the paragraphs below:
In my view, Bald Hills’ conduct towards Mr Zakula and Mr Uren has been of that nature. They both repeatedly complained that noise from the wind turbines at their homes was disturbing their sleep. Mr Uren first complained in May 2015, while Mr Zakula did not formally complain until September 2015. Bald Hills never responded to either man’s complaints by trying to reduce wind turbine noise at their homes. Rather, it denied that they had any cause for complaint, minimised their lived experience of the noise, and treated them as hypersensitive trouble-makers. In 2017, it accepted and relied on MDA’s patently absurd conclusions that it was quieter at both properties after the wind farm started operating. The evidence of both Mr Zakula and Mr Uren left me in no doubt that, over time, they found the lack of any remedial action by Bald Hills to be frustrating and deeply discouraging. I accept that this compounded the effect of the noise nuisance that intermittently kept them awake at night …
Overall, Bald Hills’ response to the complaints to the Council was strikingly disproportionate, and did nothing to mitigate the noise nuisance at the plaintiffs’ homes. I am satisfied that it further aggravated the loss of amenity suffered by both plaintiffs in their homes.
The vigour with which Bald Hills disputed the complaints to the Council would have been better directed to finding a solution to the gearbox tonality issue first identified by MDA in December 2016. MDA advised Bald Hills at that time that it should identify an engineering solution to mitigate tonal emissions for specific turbines, rather than continue to rely on noise optimisation to achieve compliance. It is yet to do so. Its delay in finding a solution is largely unexplained, it being unclear why nothing was in place before Senvion went into voluntary administration in April 2019. Bald Hills’ ongoing failure to fix the known tonality issues in turbines 16 and 23, closest to Mr Zakula’s house, amounts to seriously high-handed treatment of him.
In our view, the key take-away from this for WEF operators is that they need to consider the most appropriate strategy for dealing with complaints against the WEF on a case-by-case basis. A vigorous or high-handed approach may ultimately not align with the WEF operator's longer term commercial objectives.