06 October 2021
5 min read
#Renewable Energy, #Construction, Infrastructure & Projects, #Planning, Environment & Sustainability
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The Supreme Court of Victoria is currently hearing a matter that will determine whether noise from the Bald Hills Wind Farm in south east Victoria constitutes common law nuisance.
In 2020, wind power generated more than 12 per cent of Victoria’s electricity. To meet Victoria’s net-zero target by 2050 (as required by the Climate Change Act 2017 (Vic)), modelling shows that wind generation will need to make up approximately 36 per cent of Victoria’s energy mix in the long term. The Victorian Government is developing further Renewable Energy Zones (REZs), and developers are currently bidding for future projects as part of the Victorian Government’s second Victorian Renewable Energy Target Auction (VRET2) scheme.
Against this development push, the Bald Hills Wind Farm judgment has the potential to have widespread impacts on wind farm viability and decarbonisation across Australia as wind farms that comply with relevant planning laws and noise standards could be liable for noise that causes ‘unreasonable interference’ to the use and enjoyment of neighbouring land.
The Bald Hills Wind Farm, located in Gippsland in Victoria, has been fully operational since May 2015 and generates 4.3 per cent of Victoria’s annual renewable energy generation. The original permit was granted in 2004 and contained permit conditions related to noise, including compliance with the New Zealand wind farm noise standards.
In 2016, local residents reported various health impacts from noise, such as sleep deprivation and associated headaches, and are now asking the Supreme Court of Victoria to find whether the interference constitutes common law nuisance. To be successful, the noise from the wind farm must be both a “substantial” and “unreasonable” interference.
A substantial interference is based on the specific facts of the case and on what an ordinary resident of the local area can reasonably expect. In the Bald Hills Wind Farm case, local residents have argued that noise transmitted by the wind farm is causing adverse health impacts such as headaches and sleep disturbance. A literature review on the health effects of wind farms found “there is no evidence for health effects caused by wind turbines in people living in the vicinity of wind turbines, other than annoyance and self-reported sleep disturbance”. The review also noted that wind turbine sound can be compared with noise from road, rail and aircraft.
In Walter v Selfe (1851) G&SM 315, a nuisance was held to be any act “…interfering with the ordinary comfort physically of human existence…according to plain and sober and simple notions among the English people.” Previous investigations by the local council found noise from the Bald Hills Wind Farm was “offensive” or harmful to personal comfort, constituting a statutory nuisance under section 62 of the Public Health and Wellbeing Act 2008. If a substantial interference is established, there is a prima facie case of common law nuisance. Bald Hills Wind Farm will then need to show that the nuisance is reasonable.
In Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79, it was noted that reasonableness could be demonstrated by considering whether all reasonable precautions to avoid the interference are being taken or that its social utility justifies the interference.
In Rose v Chaikin 187 NJ Super 210 (1982) (Rose v Chaikin), a New Jersey Court found that constant noise from a nearby wind farm substantially and unreasonably interfered with reading, sleeping and watching television, and awarded an injunction to permanently stop the wind farm. The Court’s willingness to find nuisance was due to non-compliance with planning laws and local noise regulations. For Bald Hills Wind Farm, the operator may argue they comply with the New Zealand noise standards and planning permit conditions when proving any noise emissions are reasonable in the circumstances.
In Rose v Chaikin, the Court held that the social utility of one wind farm was outweighed by the harm caused to nearby residents. However, since Rose was decided in the 1980s, the social utility calculus for wind farms has arguably shifted greatly in favour of wind farm operators. For example, in NSW, “renewable energy precincts” have been established to declare large wind farms as “critical infrastructure”. Bald Hills Wind Farm, as a utility-sized generator, has a high social utility in supporting the community’s need for renewable energy.
In the context of the recent AR6 IPCC report and their urging for decarbonisation, the high social utility of Bald Hills Wind Farm would support an argument that noise interference is reasonable.
Looking to wind farm nuisance claims in other jurisdictions, there have been mixed outcomes, with non-compliance with planning and noise standards being a common thread in successful nuisance claims. With Victoria’s first private nuisance claim before the Supreme Court, there is a stark decision to be made in balancing private rights to use and enjoy land versus the social utility of renewable energy.
If nuisance is made out in the Bald Hills Wind Farm case, wind farm projects will be subject to ongoing risks of litigation and uncertainty even after showing compliance with all planning laws and noise standards.
With wind farms playing an important role in seeing Victoria achieve emissions reduction and generation targets, reducing barriers to renewable energy investment may outweigh noise interference for a small number of local residents.
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