First Strike: Communities Threatened by Wind Farms Gathering Own Noise Data to Later Sue Turbine Hosts & Developers in Nuisance

Over the last few weeks there has been an uptick in chatter about long dormant wind farm projects being resurrected, which has more to do with anxious developers hoping to offload their projects than any kind of renewed confidence in Australia’s precarious renewable energy policies.

In the main, this rush of panicked activity is about wind power outfits keen to get their projects up to the point of obtaining a development approval in order to flog them off to greater fools (principally Chinese investors) who, the vendors hope, are ready to bet their shirts on the survival of the Federal government’s completely unsustainable Large-Scale RET.

We’ll start with a couple of examples from South Australia, the first piece relates to a community disaster proposed for the rolling hills north of the iconic Barossa Valley and the second to the Beetaloo Valley, to the south-west of Laura. In both places the communities have developed a wind industry killing strategy, which we will happily detail in a moment.

Twin Creek wind farm meets local opposition
Barossa Herald
Carla Weisse-Smith
12 April 2017

A proposed wind farm near Mount Rufus and St Kitts has been met with opposition from local landholders and residents.

RES has been developing the Twin Creek Wind Farm site since early 2014 and last week held its second round of community consultation sessions at Kapunda, Eudunda and Truro.

Initially, RES proposed to install 90 turbines, however following environmental surveys on the site this figure was revised to 51, 180-metre high turbines.

However, unlike other wind farms in the region such as Keyneton, the Twin Creek Wind Farm is set to be visible from the Barossa, according to a visual influence map presented at last week’s consultations.

“The visual aspect is quite appalling,” businessman and landholder Condor Laucke said.

“Pretty much everywhere in the Barossa is going to see all of them.”

Mr Laucke also had concerns surrounding the noise impact of the turbines.

“The fella we buy rams from at Hallett has turbines about eight kilometres away; they said they definitely hear them – more so the generators – and the house also vibrates in certain conditions.”

Mr Laucke is one of several neighbouring landholders at Hansborough, Bagot Well and Dutton who were previously approached by DP Energy and RES to be part of the proposed project, but who were strongly opposed to it.

Two landholders will host the 51 turbines on the properties of “Twin Creeks” and “Ben Lomond”.

Hampden’s Mary Morris is another resident concerned about the impact the proposed farm could have on the region, including affecting the character of the historic St Kitts and Barossa districts.

“The Mount Rufus tower can be used as a rough reference point to indicate where properties will have a direct line of sight to the wind farm,” she said.

“If you can see the Mt Rufus tower, you will see the majority of the 51-turbine wind farm – bearing in mind that the Mt Rufus tower is only about 40m high and the turbines will be 180m high.”

Environmental surveys of the area have detected Wedge-tailed Eagle nests, as well as a population of Pygmy Blue-tongue Lizards – an endangered species which was previously thought to be extinct and only rediscovered near Burra in 1992.

Studies on the lizard have previously cited industrial development – such as wind farms – as a threat to its survival.

RES development project manager Daniel Leahy said surveys had been conducted for several years across the site and project plans would aim to mitigate the impacts on local fauna and flora.

He said distance buffers would be implemented, with the area varying for each species.

“We undertake surveys pre-construction and throughout the project period and we have to have a design to accommodate that.”

Mr Leahy said RES was currently on the 25th iteration of the design and would be using feedback from last week’s to frame the next stage.

“Around Kapunda and Eudunda we’ve received quite a bit of support from local businesses,” he said.

“Projects like this are a good injection into local business; you always do get a minority of people saying no one supports this.

“We’ve consulted with the local community and there were some concerns raised by residents – that’s normal.

“That feedback will go into the design, if we need to change something.”

There was no firm date on when designs would be submitted to the Development Assessment Commission.
Barossa Herald

***

Residents determined to blow off wind farm proposal
The Advertiser
Erin Jones
18 April 2017

 

SOUTHERN Flinders Ranges residents are vowing to stop a 50-turbine wind farm from ruining the landscape, fearing the project will be fast-tracked because of the state’s energy crisis.

The group of residents at Beetaloo Valley, 20km north of Crystal Brook, are outraged at a proposal by French company, Neoen, to create an “energy park” in their backyard.

The $500 million project would create 150 jobs during construction and include a battery storage facility, solar farm and 50 wind turbines, which would power 145,000 homes with renewable energy.

The turbines have been earmarked for a section of the 1200km Heysen Trail, on the ranges extending north of Crystal Brook to Beetaloo Valley and Colby Hill.

Group spokesman John Birrell feared the State Government would support the project to secure its energy supply network before summer, despite its development plan saying it was an area where “wind farms were not explicitly envisaged”.

“We have the suspicion that they (Neoen) have tapped on their solar and battery projects to push their wind farm,” Mr Birrell said.

“So if the South Australian Government is prepared to back a wind farm here, they should also be prepared to support opening up the Mt Lofty Ranges for similar developments.”

Mr Birrell said they were not against a battery or solar facility but the wind farm straddled two council areas, which had identified the area as being protected for its “natural character and scenic features”.

“Once there is encroachment into this protection zone, it sets an alarming precedent for the rest of the Flinders Ranges,” Mr Birrell said.

“The irony is the Government is pushing for some areas of the Flinders to be world heritage-listed and at the same time, we’re getting an application from a foreign country to put in an industrial development.”

While Neoen was yet to lodge an application with the Development Assessment Commission, the project was detailed on its website and a plan was presented to the community last month.

Neoen representatives have another meeting with residents on Wednesday and it was expected to lodge a development application with the commission in May.

“We’re hoping to kick up as much fuss, so Neoen won’t put in a development application,” Mr Birrell said. “We want to make it so hard that they reconsider it.”

Once an application was received by the DAC, a report would be prepared for Planning Minister John Rau, which would include whether the proposal was seriously at variance with the relevant development plan.

Planning Minister John Rau denied that its development plan would be overlooked for the project to receive approval.

“Any suggestion the State Government will apply anything other than orderly due process in this matter is completely false,” he said.”

Beetaloo Valley was the same community which fought to overcome a similar proposal by Origin Energy in 2012, which was eventually abandoned.

Neoen could not be contacted for comment.
The Advertiser

Typical soft-soap pap from the mainstream media, downplaying the sense of outrage among property owners ready to have their lives and livelihoods destroyed for an utterly pointless vanity project.

These people do not have “concerns”, these people are furious; they have a long-recognised legal right to protect their ability to use and enjoy their homes and properties, free from interference from excessive noise; and, as we detail below, these communities are preparing themselves to prosecute civil law claims in nuisance against the farmers proposing to host the turbines and the developers hoping to profit from them.

As all South Australians are aware, its Labor government’s obsession with wind power has left it with the most unreliable and costly power supply outside of sub-Saharan Africa.

The last thing South Australia needs is another wind turbine. To make up for the chaos created by a wholly weather dependent power source, abandoned centuries ago for very obvious reasons (see above), Jay Weatherill & Co have committed to bringing in 200-250MW of diesel generators which will cost more than $400 per MWh to run (compared with $40-50 per MWh for coal-fired generation) to deal with daily wind power output collapses. And have also talked up the prospect of building their own 350 MW peaking plant using Open Cycle Gas Turbines, another highly inefficient way of generating electricity, notwithstanding there is little or no gas available for domestic purposes.

Just to set up the infrastructure, South Australian taxpayers are going to be whacked with a bill in excess of $550 million, with the obscene running costs of diesel generators and OCGTs guaranteed to increase South Australian power bills, already the most punishing in the Nation by a factor of 2, or more.

But those are mere quibbles about the economic insanity that has overtaken the need for affordable and reliable power supplies.

However, closer to homes, it is the incessant turbine generated low-frequency noise and infrasound that – for neighbours threatened by wind farm projects across Australia – stands as an infringement of their legal rights.

Excessive noise preventing someone from sleeping in and otherwise enjoying their homes isn’t a “concern” it is unlawful; and those engaged in creating it are strictly liable for the suffering, loss and damage caused. Such a case is playing out in Ireland right now, as damages are being assessed against a wind turbine manufacturer which conceded liability to 7 plaintiffs in a nuisance action (see our post here).

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

Precisely the same principles were at work in the case pursued by Julian and Jane Davis, who successfully obtained a £2 million out of court settlement from a wind farm operator, for noise nuisance; and the resultant loss of property value (the home became uninhabitable due to low-frequency noise, infrasound and vibration).

The Particulars of Julian and Jane Davis’ Claim are available here: Davis Complaint Particulars of Claim

And Jane Davis’ Statement (detailing their unsettling experiences and entirely unnecessary suffering) is available here: davis-noise-statement

The common law also recognises the ability to prevent a neighbour from building a noise generation source that will inevitably cause nuisance (with what is called a quia timet injunction). The rule is based on the common sense principle that it’s easier and fairer to keep wild horses corralled, than it is to round them up once they’ve bolted.

One pertinent example is Grasso v Love [1980] VR 163 (available here).

The Full Court of the Supreme Court of Victoria upheld the trial judge’s decision to grant a quia timet injunction to prevent the construction of a Drive-in Theatre which a developer was planning to build right next to the plaintiffs’ home. The injunction was granted on the basis that the noise created by the Drive-in at night-time (noise from the speakers, loud voices, banging car doors, engines starting and tooting horns) would be heard within the plaintiffs’ home and, therefore, cause a very substantial degree of interference with the use and enjoyment of their home. On the basis of the noise likely to be created, the threat of nuisance to the plaintiffs was substantial and, accordingly, they were entitled to an injunction stopping the developer from building his Drive-in, as proposed.

What the growing band of individuals – like Julian and Jane Davis – are relying upon to protect their health, wealth and happiness are the rights that citizens of civilised societies have fought over centuries to establish and maintain (think Magna Carta and all that).

Now, with those principles in mind, communities in Australia have started taking the law into their own hands, gathering their own acoustic data before turbines go up and to have that same sophisticated, accredited acoustic monitoring equipment permanently installed inside and outside their homes.

Those in communities like Cullerin and Gullen Range in NSW, Macarthur, Waubra and Cape Bridgewater in Victoria and Waterloo in South Australia are acutely aware of the games played by the pet acoustic consultants employed by the wind industry.

The same band of usual suspects, Sonus, AECOM and Marshall Day engage in the same routine shenanigans which result, and always result, in assertions that the noise driving neighbours nuts complies with the utterly irrelevant ‘rules’ written by, you guessed it, the very same acoustic consultants that pretend to ‘enforce’ them (see our post here). How that particular outrage came about was addressed a couple of years back in this post: Three Decades of Wind Industry Deception: A Chronology of a Global Conspiracy of Silence and Subterfuge

Games such as deliberately placing their noise loggers in bushes or under giant trees during pre-construction noise monitoring (which raises the background noise level) and then, equally deliberately, during “compliance” monitoring placing their noise loggers well away from vegetation in order to lower the noise levels, allowing them to claim that noise from the wind farm satisfies their utterly irrelevant dB(A) noise “guidelines” – note this example from Hepburn Wind’s Community nightmare, where the addition of operating wind turbines (miraculously?) reduced the average noise level at House 10 by 5-6db(A) from ‘Pre-construction’ (green regression) to ‘Post-construction’ (red regression):

Other games include “dog ate my homework” stories run by the likes of AECOM at Macarthur when, instead of presenting weeks of data which would have shown non-compliance, claiming that the batteries on their noise loggers had repeatedly gone flat, such that there was no data at all; once, quite possibly, but on three separate occasions, we strongly doubt it…

And when making data disappear wasn’t possible, and the ‘unhelpful’ results didn’t satisfy the developer, it was easier for Marshall Day to simply alter the numbers in their reports to make them fit what was required by the guidelines (see our post here).

As they say, you can fool some of the people, some of the time, but you can’t fool Australian rural communities all the time.

The first mover in this brilliant new strategy to beat the wind industry at its own game is a woman from Mt Emerald, a community on the Atherton Tablelands in Far North Queensland, threatened by 75 3MW monsters (see our post here).

This character (who for the time being shall remain nameless) underwent a course in acoustics, and set up state-of-the-art kit inside and outside her home (accredited acoustic monitoring equipment, as well as a weather station to provide data on wind speed and direction against which noise levels are referenced).

The purpose behind the move is plain enough: gather detailed data on the acoustic environment which she and her family currently enjoy for later use in litigation, if the wind farm is ever built.

By having detailed independent noise data, that data can be used as evidence to demonstrate the increase in low-frequency noise generated by wind turbines and present inside the family home. Having her own before and after dataset means that there can be no arguments about the source of the noise, putting her in a position to smash the usual rubbish about noise coming from wind in the trees etc.

STT hears that when the goons from RATCH – the Thai wind power outfit hoping to get their Mt Emerald project off the ground – visited this particular home, their jaws dropped and their faces went white when they saw the kit and heard what this plucky resident was up to. And that is the very brilliance of the strategy: get evidence independent of the crooks that work for crooks and use it to sink them all in a court of law.

Then there is the fact that, in the event turbines ever do go up, the noise monitoring kit will forever remain in place.

Another game played by developers and their acoustic consultants is running turbines in ‘low-noise mode’ during ‘compliance’ monitoring. This trick involves ‘feathering’ the angle of the blades, reducing the power output by 30-40% and also reducing the noise produced, even though the turbines appear to be running at full tilt.

Whenever independent acoustic experts turn up at a wind farm with their kit, the residents notice that the noise levels drop.

Wind power outfits alerted to the fact that noise monitors are in the area, promptly switch their turbines to low-noise mode. When SA’s EPA, the University of Adelaide and Steven Cooper (an independent acoustic expert) turned up at Waterloo with noise monitoring kit back in May/June 2013, locals noticed how quiet the turbines seemed, compared to normal. The power output from the wind farm during that monitoring period was never more than about 70% of the full capacity of the turbines. Sure enough, when the monitoring kit was removed the turbines returned to their normal rumbling, thumping, soul destroying cacophony.

Playing those sorts of games works for a few weeks: the wind power outfit suffers a loss running its turbines at reduced capacity – think 30-40% less renewable energy certificates; and, as soon as the acoustic kit disappears, the turbines are cranked up to their full capacity, allowing their operators to avoid a finding of non-compliance and return to wallowing in the subsidy trough.

Now, however, with monitoring kit permanently installed inside and outside the homes of their victims, wind power outfits are faced with a choice: permanently running their turbines in low-noise mode; or permanently running the risk of being caught in breach of their very own guidelines and being forced by regulators to shut down turbines or run them at reduced capacity.

In addition, the wind power outfit’s victims are forevermore armed with evidence sufficient to bring an action in nuisance against either the farmers stupid enough to host these things and/or the wind power outfit profiting from them.

STT hears that the strategy is about to be deployed by the communities at St Kitts/Bagot Well and Beetaloo Valley.

STT also hears that communities across Victoria (including Stockyard Hill) and New South Wales (including Bodangora, Crudine Ridge and surrounding the Jupiter wind farm) are lining up their own acoustic experts to set up permanent noise monitoring systems which they will own and/or control.

STT also hears that the Waubra Foundation, which has long advocated for full-spectrum inside/outside noise measurements at homes affected by noise from all sorts of sources (gas turbines, coal mines and wind turbines) is helping those communities to get in touch with competent, independent acoustic experts, to have community members engage in courses qualifying them with the skills necessary to set up kit and gather acoustic data themselves and providing communities with advice on how to beat the wind industry and its pet acoustic consultants at their very own game.

The helpful crew at the Waubra Foundation will, no doubt, be happy to assist your community too, so why not drop them a line here – waubrafoundationcontact or here – info@waubrafoundation.org.au

What any investor hates most of all is R-I-S-K.

The steps being taken by communities threatened by wind farm projects across Australia have just added another level of risk for anyone foolish enough to throw money at wind farm developments or for power retailers hoping to avoid the shortfall charge under the LRET by signing up to purchase RECs from wind power outfits in future.

With the wind industry’s potential victims gathering their very own evidence, for wind power outfits and turbine hosts the risk of a common law nuisance action – resulting in the forced shutdown of turbines and/or the award of very substantial damages for the loss of the use and enjoyment of people’s homes – just got very real.