For Pacific Hydro’s Liability to its Wind Farm Victims it’s “Too Late She Cried: the Horse Has Already Bolted”

horse bolting

For Pac Hydro, it’s a “one-way trip” from here …

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In the month since Steven Cooper’s groundbreaking study into the adverse effects from turbine generated low-frequency noise and infrasound on wind farm neighbours at Cape Bridgewater hit the press, the wind industry and its parasites have reacted in a form of panic that can only be described as hysterical.

None more so, than that wind farm’s operator, Pacific Hydro. And, for a very good reason: by unleashing Cooper it has inadvertently provided its victims with precisely the evidence needed to establish legal liability against it (a theme we’ll return to in a moment).

But first, here’s STT champion, Graham Lloyd with a neat little wrap-up on Pac Hydro’s brewing legal nightmare.

Pacific Hydro pulls the plug on wind farm research
The Australian
Graham Lloyd
18 February 2015

WIND power company Pacific Hydro has ended its research into possible impacts on nearby residents at the Cape Bridgewater wind farm in Victoria, with some residents planning to abandon their homes and consider legal action.

Acoustics expert Steven Cooper received a standing ovation from residents at a meeting on Monday night that ended in disappointment for many of those present.

Pacific Hydro said it understood some people would be disappointed but considered the National Health and Medical Research Council the appropriate body to co-ordinate further work.

The NHMRC said last week that it would commission targeted, high-quality research into the effects of wind farms, including into low- frequency noise and infrasound.

The Cooper study found a trend line existed between narrow band infrasound and severe sensations recorded by residents in their diaries.

International acoustics experts have said the study results showed a cause and effect, something that was not accepted by Pacific Hydro.

One of the study participants, Melissa Ware, said she would not return to live in her Cape Bridgewater house because of what she said was the impact of living near the wind turbines. “We will attempt to sell the house and look at some legal proceedings against Pacific Hydro because we have no other option,” she said.

Pacific Hydro said the Cooper study was not commissioned as a health study and the company could not enter into a debate about health issues or health ­impacts.

“We note that a recent NHMRC statement indicates that they will be conducting further work in this area which may be an appropriate place for ­rigorous health research to take place,” Pacific Hydro said in a statement.

It said the Cooper study contained a number of hypotheses that were yet to be fully tested and contained information that may prove useful as a basis for further study.

“The study clearly states that no correlation has been found with standard acoustic parameters versus the wind farm but the report suggests a correlation of some parameters versus wind speed,” the company said. A peer review of the study by Paul Schomer, who is one of the world’s most qualified and senior acoustics experts, said the Cooper study had shown clearly that there was “at least one non-visual, non-­audible pathway for wind turbine emissions to reach, enter and ­affect some people”.

“The important point here is that something is coming from the wind turbines to affect these people and that something increases or decreases as the power output of the turbine increases or decreases,” Dr Schomer said.

Pacific Hydro and Mr Cooper said the outcome of the study “can lead to further discussion amongst the community, regulatory authorities, planning authorities, other researchers and the wind industry”.
The Australian

Pac Hydro seems to think that by scurrying off to the NHMRC it will, somehow, be able to put the genie back in the bottle, by having a bunch of wind industry shills set up a little more rigged “research” – by which the wind industry can obtain the kind of “answers” that might save their skins. Good luck with that!

Wind farm victims as litigants, however, don’t need the NHMRC to generate (read “fabricate”) or give evidence in respect of their mounting claims.

Of course, with the wind industry using the half-baked press releases cooked up by the NHMRC as magical shields, it begs the question, would Pac Hydro aim to defend itself using the nonsense “nocebo” theory; and would it call a former tobacco advertising guru as its star witness? Well, good luck with that, too!

The truth is that, for the wind industry, and Pac Hydro in particular, it’s a case of “too late she cried, the horse has well and truly bolted”.

No matter what the wind industry does from here, the facts remain: indeed, they thump their way into neighbours’ homes as soon as the turbines are cranked into gear every single day – and cause a range of adverse health effects, including sleep deprivation.

Now – thanks to Cooper’s work – that factual relationship can be proved over and over again, with scientific precision.

The grounds for liability to victims are pretty straightforward: common law claims in nuisance and/or negligence (for starters) to obtain substantial damages for personal injury – caused by either – for pain and suffering, loss of amenity and enjoyment of life etc – as well as very substantial damages for the loss of the use and benefit of homes; diminution in the value of those homes and properties; relocation costs etc, etc.

One of Pac Hydro’s wilder claims is that it will somehow escape liability by reason of its (untested) claim that its wind farm operation “complies” with all of the conditions of its planning consent; which includes reference to a noise standard, that neither measures, nor sets limits on, low-frequency noise or infrasound; the very cause of the neighbours’ suffering.

In any event, compliance with planning controls (even where relevant to the cause of the harm being suffered) is not a defence to a claim in nuisance; nor is it a defence to claim in negligence seeking damages for personal injury.

Pac Hydro’s increasingly desperate argument can be reduced to this: when I ran over the plaintiff, I was travelling at the speed limit of 60 km an hour; therefore, I am not guilty of negligence, and not liable in damages for turning a pedestrian into a paraplegic because I was looking the other way when I hit him.

Planning permission (and satisfaction of the terms of that permission) is not “determinative of the issue of private nuisance”; while “there may be sound arguments in favour of such a contention; … it does not represent the present state of the law. What is essentially an administrative decision does not extinguish private rights without compensation”. “The grant of planning permission as such does not affect the private law rights of third parties”. See Watson v Croft Promo-Sport Ltd [2008] EWHC Civ 759 (QB) at [57]; upheld on appeal: [2009] EWCA Civ 15.

While negligence (ie breach of the common law duty of care) is one obvious cause of action, so too is nuisance, the essentials of which appear below.

STT’s Nuisance “In-a-Nutshell”

Nuisance is a long recognised tort (civil wrong) at common law based on the wrongful interference with a landowner’s rights to the reasonable use and enjoyment of their land.

Negligence is not an element of nuisance, although aspects of the former may overlap with the latter.  Where, as here, the conduct is intentional (ie the operation of the wind turbines is a deliberate act) liability is strict and will not be avoided by the defendant showing that it has taken all reasonable steps to avoid the nuisance created.  Indeed, the conduct of the defendant is largely irrelevant (unless malice is alleged); the emphasis is on the defendant’s invasion of the neighbouring landowner’s interests.

A defendant will have committed the tort of nuisance when they are held to be responsible for an act indirectly causing physical injury to land or substantially interfering with the use or enjoyment of land or of an interest in land, where, in the light of all the surrounding circumstances, this injury or interference is held to be unreasonable.

The usual remedy for nuisance is an injunction restraining the defendant from the further creation or continuance of the nuisance.  Injunctions are discretionary, in all cases, and will not be granted unless the nuisance caused is significant.

Where interference with the enjoyment of land is alleged, the interference must be “substantial” and not trivial.

Interference from noise will be substantial, even if only temporary in duration, if it causes any interference with the plaintiff’s sleep.

The loss of even one night’s sleep through excessive noise has been repeatedly held to be substantial and not trivial in this sense (see Andreae v Selfridge & Co [1937] 3 All ER 255 at 261, quoted with approval in Munro v Dairies Ltd [1955] VLR 332 at 335; Kidman v Page [1959] St R Qd 53 at 59; see also Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683 at 701: “a man is entitled to sleep during the night in his own house”).

It is not a defence for the party creating the nuisance to claim that he is merely making a reasonable use of his property.  The defendant’s conduct may well be otherwise lawful, but still constitute actionable nuisance.  The activity engaged in by the defendant may be of great social utility or benefit, but that has been repeatedly held as being “insufficient to justify what otherwise would be a nuisance” (see For example, Munro v Dairies Ltd [1955] VLR 332 at 335; see also Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683)

Halsey’s case is well worth a read – a real “David and Goliath” battle, as described by the trial Judge: “This is a case, if ever there was one, of the little man asking for the protection of the law against the activities of a large and powerful neighbour.”  And just like David’s epic battle with a thuggish giant, the little bloke won!

Here’s a link to the case: Halsey v Esso Petroleum [1961] 1 WLR 683

hobart sc

Pac Hydro’s next stop.

About stopthesethings

We are a group of citizens concerned about the rapid spread of industrial wind power generation installations across Australia.

Comments

  1. Also, Stop These Things must not overlook the annoyance and effect of the audible noise from wind turbines.

    I have visited two non-aligned farms where Gullen Range Wind Farm (GRWF) turbines are within 1klm.

    The audible noise is dreadful – to me the sound is very much like a jet plane permanently above and a dozen semi’s travelling simultaneously over gravel roads as well as thumping when the blades pass the tower. I came away from one property feeling as though I had attended a 4 hr Rolling Stones’ concert and then spent an hour under water. I am not exaggerating. It took a little while for my hearing to return to normal. My partner had a similar experience – something we did not discuss until driving home when we both spoke simultaneously of our experience. We did not discuss the adverse effects when near the turbines for fear of upsetting the elderly owners of the farm. Though I now understand one of the owners, a genuine ‘salt of the earth’ country Australian, is now, for the first time ever, suffering migraine headaches. Why am I not surprised?

    We are within 2klm of a number of GRWF turbines and we can hear them from our home and especially so when working in the fields.

    Combine the audible with the infrasound effects on some people and what do you have? A complete living hell.

    How can politicians, how can the proponents, how can the hosts, how can those aligned and supporting the wind industry live with themselves knowing what they are doing to so many rural residents?

    We have made it public that we are looking for acquisition from Goldwind and this takes me to another subject – saleability and property values of rural properties adjacent to or within the vicinity of wind farms – that is for another post. However, I would like to see Stop These Things focussing in on this issue.

  2. All developers and hosts should be following this very closely. Especially those who have been advised in writing of their responsibility should they play any role in facilitating turbines being a nuisance.

  3. Well I think the sh1t show is about to begin. Media watch have now involved themselves in the show. Pac hydro, with hairs on their chest, thought Steven Cooper would not find any thing, but they were wrong.

    When you are a farmer, nature shows you a lot about life. When you have a sorghum crop and you get grubs in the crop when the grain is forming, you then spray it with a virus. The grubs shrivel up into nothing. This is why I call the wind weasels ‘grubs’ because they are going to be absolutely nothing very soon. The courts are going to be the virus. Happy days wind weasels.

  4. The David and Goliath summation misses the mark. At least David had a sling shot, we have nothing.

    The cruel buggers get to the press with their legal threats. They lie in the media. The Media then refuse to print my responses. They use their ‘commercial-in-confidence’ line to reserve their interests – but to hell with our private interests.

    This is a public nuisance. I went to Cape Bridgewater to see the great guys who have fought for so long. But I became quite ill with pain in the upper stomach region during my visit and was too sick to have tea at the property. The pain in my head is still troublesome even though I had air pressure plugs in during my visit to Cape Bridgewater, but then this is what also happens at Waubra.

    I had not been in a wind farm affected environment such as Cape Bridgewater since leaving my Waubra house nearly three years ago – but the sensations are identical and overwhelming. I still get ill when going to our other property (about 5 kms from the Mt Mercer wind farm). For this reason I persist and argue that we must make the council responsible.

    But it was important for me to be with the Cape Bridgewater people. I know what it is like to be in depth of despair. It takes so long to pick oneself up after some Councillor has just shown you that they clearly do not know to whom they owe a duty of care.

    We must not give up hope for the likes of pmm323’s sake [please take care]. I know it is cruel what has been done to a great many people. It is time for us to put the message to the Senate – those of us who have the strength, to help the ones who are most affected – and let our issues be known. The general public needs to realize the affects of wind turbine-generated LFN/infrasound on humans in their homes is real. But also those who have no other choice but to live near these wind-turbines, need to be made aware so they can take care of themselves the best they can.

    Noel Dean

  5. Jackie Rovenksy says:

    And let’s not forget the industry were aware for many years that their instruments of torture are capable of causing adverse health problems because of the turbine emissions. But instead of facing up to it, they chose to ignore/hide/shrink from and lie about it, even when challenged.

    They knew – they cannot claim ignorance.

  6. I wish the horse would bolt and come my way and give me and my neighbours help with ILFN here caused by Industrial noise.
    God help us
    I am exhausted

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