The Battle for Mt Emerald FNQ: What’s the Price for the Sound of Your Silence?

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Proving the adage that you can never keep a good man down, Senator John Madigan has bobbed up in Far North Queensland and walked straight into a hornet’s nest – this time over gag clauses in land contracts for properties being sold next door to a wind farm by the developer of that wind farm. Here’s The Cairns Post on the brewing rumble for Mt Emerald.

Senator queries wind farm ‘gag’ clause while in Cairns
The Cairns Post
Daniel Bateman
21 June 2014

A VICTORIAN Senator has questioned why the property developer behind a Tableland wind farm has any need to ban residents from speaking out about the project.

Developer Port Bajool Pty Ltd has placed a clause in its contracts of sale for properties at Oaky Creek Farms, stating there be no objection to the proposed $380 million Mt Emerald Wind Farm.

The developer claims the clause merely ensured buyers were fully aware of the proposed wind farm prior to purchasing property.

The State Government has called in the application for the development from the Mareeba Shire Council and is expected to decide if it will proceed by the end of the year.

Ballarat-based Democratic Labour Party Senator John Madigan, in Cairns this week for the AUSVEG convention, said he sympathised with residents living near the proposed wind farm.

Mr Madigan described the developer’s claims of transparency as “a load of crap”.

“These gag clauses: if this was as pure as driven snow, why do you need gag clauses?” he said.

Cook MP David Kempton denied residents had been forced to sign gag orders.

“There’s no gag order. I reckon (opponents) are playing with that to try and make it look like (the developer) is something he isn’t,” he said.
The Cairns Post

So, what’s all the fuss about? Why don’t we start by having a look at the clause in question?

Set out below is an extract from the “Contracts for Sale” for properties at Oaky Creek Farms, Mutchilba (Queensland, Australia).  These properties are being sold by Port Bajool Pty Ltd. Port Bajool Pty Ltd is the owner of the property (situated on Mt Emerald) – on which RATCH (aka RACL, a subsidiary of Thailand’s biggest power producer) is planning to construct a 63 turbine wind farm (aka the High Road Wind Farm) – and Port Bajool Pty Ltd is also a partner with RATCH in the $2.00 company, Mt Emerald Wind Farm Pty Ltd. The properties at Oaky Creek Farms are all within a 5km radius of proposed turbines, as identified on RATCH’s “Surrounding Residences” map.

Here’s the offending clause:

No Objection to Wind Farm

The Vendor discloses that certain feasibility studies (including geotechnical surveys and construction and operation of monitoring equipment) and a development application or procedure have been or may be made in respect to the use or development of Lot 7 SP235244 for construction of wind electricity power generation (by means of a connected group of wind turbine generators, together with associated electrical infrastructure and connection equipment). The Purchaser must not object to any application or procedure made or initiated by or on behalf of the Vendor or a third party in respect of any use or development of Lot 7 SP235244. The Purchaser acknowledges that the Purchaser will not be materially prejudiced by the development or use of Lot 7 SP 235244 as a “wind farm” for the generation of electrical power.

The clause is pretty straightforward – a purchaser of land from the joint-developer of the wind farm signs away any right to object to any application or procedure made in respect of any use or development on the site of the proposed wind farm: Lot 7 SP235244.

The purchaser also effectively signs away their private law rights (such as nuisance or negligence caused by wind turbine noise, say) by acknowledging that they “will not be materially prejudiced by the development or use” of the site “as a “wind farm” for the generation of electrical power.”

The purchaser’s agreement not to object to any application or procedure made by the developer in respect of any use of the site – combined with the acknowledgement that the purchaser “will not be materially prejudiced by the development or use” of the site as a wind farm – can be fairly described as a “gag clause”. While there are much tougher versions around, this one is probably tough enough for the developer’s purposes (see our post here).

In practical effect, the purchaser would not be entitled to raise any objection to the wind farm at all. To object would be a breach of the Contract for Sale; and an objection would include any negative or disparaging statement made about the use or operation of the site as a wind farm. This would not be limited to statements made during the planning process, but would extend to cover any application or procedure made by the developer during the life of the wind farm.

Moreover, should the purchaser take action (including legal action) in relation to any complaint concerning negative impacts caused by the operation of the wind farm, the purchaser will breach that part of the clause that acknowledges that they “will not be materially prejudiced by the development or use” of the site as a wind farm. Were the purchaser to make their complaint to the press, for example, the developer may also assert that this breaches that same acknowledgement; and would, therefore, constitute a breach of contract.

Whichever way you slice it, the clause is Draconian. And, if wind farms make such wonderful neighbours, obviously unnecessary, surely? A point well made by John “Marshall” Madigan in the piece above.

But don’t just take our word for it, the Tablelands Regional Council received legal advice (click here for the advice) in relation to the Ratch’s High Road Wind Farm development. In apparent response to the clause set out above (and clauses like it) the advice was as follows (see page 18):

We do recommend that Council make HRWF (High Road Wind Farm) aware that in conducting any negotiations they couldn’t stifle comments from residents who are likely to be affected. The Court [in Bunnings Building Supplies Pty Ltd v Redland Shire Council and Ors [2000] QPELR 193, paras [30] and [32]] has warned:

“The Council should have the opportunity to assess the application in the light of the informed attitude of interested parties, especially local residents and most especially those living closest to the site who would mostly be affected. That informed attitude may well be perverted by a developer who uses the cheque book … In this case the cheque book approach to potential submitters has not affected the merits of the various arguments on the disputed issues. I take the opportunity, however, to deplore it in the strongest terms. Should this approach manifest itself in other application, the Court will have to examine the ramifications in detail. Could it have the effect of vitiating the public notification stage, requiring re-notification? Might it amount to an abuse of process?”

We note that the [noise] Standard recommends that a regulatory authority set criteria that is flexible to account for existing agreements between landowners. We do not agree with this approach.

Now, some might quibble and say – referring to the concept of freedom of contract – that where parties willingly enter agreements they should be bound to honour them, no matter what their terms.

Call us sticklers for fairness – but that principle no longer holds where the beneficiary of a punitive clause has deliberately engaged in misleading and deceptive conduct.  And there is no party more likely to mislead or deceive than the prospective wind farm developer; and the “softer” the target, the easier the ruse.

Lies and deception work a treat if your audience is a 60 something farmer’s wife living on an isolated property and of the class that accepts people at face value.  The targets come from places where people (who want to function and remain in these communities) just don’t lie.  So they can’t pick it when the wind developer’s goons drop in for that one-on-one chat over a cuppa and start lying before the scones are popped on the table.

These are the private consultations where the unwitting victim is told that: “no, wind turbines aren’t noisy – they make the same noise as a fridge at 500m.” They’re told that: “our proposed wind farm will meet the toughest noise standards in the world“; that: “the only people that complain are those that aren’t getting paid“; that: “modern wind turbines don’t produce infrasound“; that: “the NHMRC said that the evidence proves that there are no adverse health effects from wind turbines”.  And so on and so on …. The same pitches have, no doubt, been made to prospective purchasers of properties at Oaky Creek Farms.

As a general rule, only those that have been forced to live with incessant turbine generated low-frequency noise and infra-sound for an extended period have the faintest idea as to what it’s like to live in a sonic torture trap (see our posts here and here).

A wind farm developer will never admit that turbine noise is a problem – it’s what they pay their pet acoustic consultants big-money to deflect or bury – victims can expect to hear pitches like the one that says listening to wind turbine noise is just like listening to waves lapping on a moonlit beach.

A wind farm developer who is also selling lifestyle properties right next door has a double incentive to gild the lily.

No wonder this one’s keen to buy the buyer’s silence.