Victorian Vengeance: Neighbours Launch $Multi-Million Noise Nuisance Law Suit Against Wind Farm Operator & Local Council

 

Tormented by wind turbine noise for years, a group of Victorian farmers have launched Supreme Court action seeking $millions in damages.

The community surrounding the Bald Hills wind farm, built by a Japanese developer, Mitsui and Co, have been tortured by incessant turbine generated low-frequency noise and infrasound since March 2015, when its 52, 2 MW Senvion MM92 turbines spun into action.

Neighbours started complaining to the developer about noise, straightaway.

But, as is their wont, the developer and its goons simply rejected the mounting complaints and carried on regardless. As we explain below, that callousness will soon come back to bite them.

Locals, however, were not perturbed.

Instead, they lawyered up. Engaging the feisty and tenacious Dominica Tannock.

Starting in April 2016, Dominica went after the South Gippsland Shire Council which, under the Victorian Public Health and Wellbeing Act 2008 has responsibility for investigating nuisance complaints and a statutory obligation to remedy all such complaints within its municipal district.

The Council, no doubt pressured by the Japanese developer, firstly refused to investigate the numerous complaints made about wind turbine noise.

Then, after further pressure from Dominica, the Council engaged in the pretence of an investigation, sending one of its environmental officers to one of the complainant’s homes to “listen” to the noise for a few minutes and – rejecting a request to carry out indoor/outdoor noise measurements – claimed it was “not normal practice for Council to use noise level readings” to investigate noise nuisance complaints.

The Council claimed that all it had to do to satisfy its obligations under the Act was to send one of its officers to the complainants’ homes, listen for a few minutes (irrespective of whether the turbines were operating or not) and close the complaint.

Instead of carrying out anything like an investigation, the Council threatened the complainants that it would vigourously defend any legal action pursued by the complainants and chase them for the Council’s legal costs when it won. Otherwise, the Council simply ignored the complainants.

Dominica Tannock didn’t let up.

Dominica’s clients launched an action in the Supreme Court of Victoria, which rejected the Council’s claim that there was no nuisance being generated by the Bald Hills wind farm and ordered the Council to launch a proper, independent investigation into the complaints made by the plaintiffs.

That was in August 2017.

Now, 12 months later, an independent investigator has deemed that the turbine noise generated constitutes a nuisance, rendering the Council liable under the Public Health and Wellbeing Act 2008. We’ll come back to the operation of that Act a little later.

But, first, here’s the local rag’s report on what is now a very big problem for the Australian wind industry.

Turbine bombshell– Noise ‘detrimental and unreasonable’
Sentinel Times
11 September 2018

THE investigation commissioned by the South Gippsland Shire Council, at a cost of $33,600, into Noise Complaint Notifications by residents living near the Bald Hills Wind Farm is complete.

And two and a half years after they first made their grievances known, the report has found their complaints were fully justified.

Described by the shire as “a highly experienced independent public health consultant”, at his appointment in February this year, James C. Smith and Associates has found that “there is a nuisance caused by wind farm noise, in that, the noise is audible frequently within individual residences and this noise is adversely impacting on the personal comfort and wellbeing of individuals”.

The conclusion has been welcomed by the lawyer representing seven of the complainants, Dominica Tannock of DST Legal of Abbotsford as “a very, very significant finding”.

But she is alarmed by the shire’s decision to put the findings to the operator of the wind farm, the Infrastructure Capital Group (ICG), first instead of simply accepting the report and the process they put in place and taking the appropriate action.

In fact, she says, by the admissions of their CEO Tim Tamlin at the Supreme Court on March 20 this year, the shire council isn’t qualified to do anything but accept the report’s findings.

“The council should be concerned by these findings and they need to make a decision. They want to get the operators’ comments but they’ve been getting complaints from the affected property owners for three years that the noise emissions are making them sick.

“They have an obligation under the Public Health and Wellbeing Act to investigate the nuisance and to take action in a timely manner.

“But despite being in possession of the clear findings of an independent expert, they’re not prepared to make a decision.

“The evidence is plain and yet they are afraid of making a decision because it’s a first in Australia and because they are scared of upsetting the operator.

“But what about their own ratepayers? These are ordinary people with legitimate health concerns and all the council can think about is getting feedback from the operator.”

In a letter to the shire’s lawyers, Maddocks, Ms Tannock has objected to giving the operator 14 days to respond as “extraordinarily and procedurally unfair”.

The report by Mr Smith, an expert in public health follows a botched attempt by the shire to investigate the complaints itself between May and November 2016, after which the shire produced a finding of “no nuisance” in January 2017 before telling the affected property owners that the case was closed in April 2017. But it wasn’t closed and the complainants took Supreme Court action to get a proper investigation. The matter is due to go back to the Supreme Court on November 26, two days after the next state election.

Conclusions

The investigation by James C. Smith and Associates has found:

“That there is a consistency with the information contained in the completed log books and with subsequent discussions held with Mr Zakula, Mr and Mrs Fairbrother, Mr and Mrs Jelbart, and Mr Uren about their individual experiences with wind farm noise during that period.

“Without exception there are allegations that the wind farm noise is audible inside their individual homes and, as a result, there is sleep disruption during the night and early morning hours. There are also allegations that the wind farm noise is disruptive to day-time domestic and work activities.

“A particular difficulty in undertaking the investigation was to predict noise patterns based on weather forecasts and the experience of residents. It became apparent that noise patterns were unpredictable and highly changeable. However, on 24th and 25th July 2018, wind farm noise was clearly audible in the Zakula and Jelbart dwellings, with windows and doors shut, between the hours of 6.50pm and 9.40pm and 7.40pm and 8.40pm respectively. In the case of the Jelbart dwelling the noise level increased to a point where it intruded into conversation between investigators and Mr and Mrs Jelbart thus, corroborating that wind farm noise was clearly audible in dwellings and, at times, intrusive. It seems likely then that such noise could be heard over a television, or radio as had been recorded in some noise logs, and reported in discussions with Mr and Mrs Jelbart, and Mr Uren.

It is noted that a noise mitigation strategy was in place at the wind farm at the time. This strategy was described by the wind farm operator as ‘… comprising a select number of wind turbines operating at reduced sound modes for a limited range of wind speeds and directions’.

“It is clear from the investigation that noise from the wind farm is audible within residences although there are noise monitoring reports stating that there is compliance by the wind farm with permit conditions and the New Zealand Standard 1998, and with a noise mitigation strategy in place at the wind farm.

“The noise was clearly audible in Mr Zakula’s dwelling at night time twice and in the Jelbart residence at night time twice and this is held to be unreasonable in both cases.

“The experience at the Jelbart residence on 24th and 25th July 2018 whereby wind farm noise intruded on conversation within the residence at night time is seen to be detrimental to personal comfort and the enjoyment of the residential environment by Mr and Mrs Jelbart.

“After consideration of the completed noise logs by individual complainants and subsequent discussions with some of these individuals it appears there is a nuisance caused by wind farm noise, in that, the noise is audible frequently within individual residences and this noise is adversely impacting on the personal comfort and wellbeing of individuals.”

Despite offering the operators of the Bald Hill Wind Farm’s 52 turbines 14 days to respond, the CEO Mr Tamlin said the matter was set to go to council for decision on Wednesday, September 26.

All councillors, DST Legal and the operators of the wind farm have been provided with copies of the 25-page report and attachments, which include contemporaneous comments by the wind farm neighbours including “woken up at 4am”, “woken up at 2am roaring sound”, “woken up at 4am roaring/rolling noise” and “woken up at 3.30am could get back to sleep, got up at 7am could still hear noise through radio”.
Sentinel Times

 

As we noted above, the result of this investigation is a very big problem for the Australian wind industry. And they know it.

Immediately after the Sentinel Times article was published, the developer’s lawyers started threatening Dominica Tannock, warning her of all sorts of consequences that would follow if she engaged in any further publicity of the report.

Undaunted, Dominica went on Melbourne talk-back radio, being interviewed by the ABC’s Jon Faine the very next morning (the interview is available here Dominica starts at the 15:47 mark).

Clearly, the tenacious Tannock wasn’t about to let a few bully boy solicitors from a mega-firm in Melbourne put her off her game: she then doubled down for an interview with Graham Lloyd for this report that appeared in Australia’s National broadsheet, The Australian.

Wind farm report a blow to future of the industry
The Australian
Graham Lloyd
14 September 2018

A class-action lawsuit is being planned against a local council, the Victorian government and a wind farm operator after an independent review accepted resident complaints that noise from a Gippsland wind farm was causing them harm.

A council-ordered report on the Bald Hills wind farm found there was a nuisance under the Public Health and Wellbeing Act.

This was despite the wind farm being compliant with state planning laws. Investigators said they could hear wind turbines in some residents’ homes and accepted they could sometimes be heard over the television and that residents were suffering sleep deprivation and other symptoms.

The report is a milestone on a years-long journey for residents at Bald Hills involving botched investigations, doctored reports, court interventions and heavy-handed planning decisions.

The finding could have dramatic implications for the ongoing development of the wind industry, which claims its turbines do not disturb residents.

Affected resident Don Fairbrother said the situation should never have got to this point. “There was a lot of concern about the suitability of the site and the height of the turbines was increased without community consultation,” he said. “The project has had a troubled history and we are finally being listened to.

“Our concerns about sleep dep­ri­vation have finally been recognised as a health and welfare issue.”

Noise logs by Mr Fairbrother document “whining, roaring noise” causing sleep deprivation and headaches.

The independent monitor, James C. Smith and Associates, was engaged in March by the South Gippsland Shire Council lawyers to investigate. The report said Mr Fairbrother appeared to have “frequent sleep interruptions from a noise described as ‘grumbling noise and a sensation’ and frequent associated headaches”.

In conclusion, the report said there had been a consistency in complaints. “Without exception, there are allegations that the wind farm noise is audible inside their individual homes and, as a result, there is sleep disruption during the nightly and early morning hours,” the report said.

One first-hand experience where wind farm noise intruded on conversation during a site visit was seen as “detrimental to the personal comfort and enjoyment of the residential environment”.

“After consideration of the completed noise logs by individual complainants and subsequent discussions with some of these individuals, it appears there is nuisance caused by wind farm noise, in that the noise is audible frequently within individual residences and this noise is adversely impacting on the personal comfort and wellbeing of individuals,” the report said.

The report is significant because the wind farm had been approved as compliant under state noise regulations and was being operated in a low-noise mode when investi­gations were under way.

The residents’ lawyer, Dominica Tannock, said she was meeting affected residents to consider their options. “A QC has been briefed and a junior counsel briefed with a possible class action against the shire, the operator, the minister and the state Environment Department,” Ms Tannock said.

A case is currently before the Supreme Court.

The Bald Hills wind farm was developed by Mitsui and Co and sold to Australian-based Infrastructure Capital Group in February last year. South Gippsland Council said it would be seeking comments on the report from both the wind farm operator and the complainants over the next few weeks.

Council chief executive Tim Tamlin said: “Without in any way suggesting that council is avoiding its responsibility, I would like to point out that this finding demonstrates the apparent disconnect between the Planning and Environment Act and the Public Health and Wellbeing Act,” he said. “I would suggest this is something the Victorian government needs to resolve.”
The Australian

Shire, state must act on turbine noise
Sentinel Times
Michael Giles
11 September 2018

On Sunday night this week, the ‘thumping’ noise from the Bald Hills Wind Farm turbines was so loud in the home of Noel Uren that between 1am and 6am he couldn’t get any sleep.

“I turned the radio on to try to cover the thumping but it didn’t make any difference,” he said.

“It’s a common occurrence when the wind is like this and the conditions are relatively still.”

Up until now though, no one has believed him or them, his fellow neighbours at Walkerville.

For more than two years those whose health and wellbeing has been seriously compromised by the unreasonable proximity of the turbines to their homes have respectfully raised their legitimate concerns with the responsible authority, the South Gippsland Shire Council, and received no support and little consideration.

Following request after request for help and finally legal action in the Supreme Court, the shire came kicking and screaming to the decision that it needed to appoint an independent investigator, by its own assessment, “a highly experienced independent public health consultant”, James C. Smith and Associates, to undertake the investigation that they themselves had botched earlier, further insulting the injured parties by denying there was any nuisance.

It’s Erin Brockovich all over again.

Now this highly experienced investigator has come out with the conclusion that there is indeed a problem, a big problem.

“… on 24th and 25th July 2018 wind farm noise was clearly audible in the Zakula and Jelbart dwellings, with windows and doors shut, between the hours of 6.50pm and 9.40pm and 7.40pm and 8.40pm respectively. In the case of the Jelbart dwelling the noise level increased to a point where it intruded into conversation between investigators and Mr and Mrs Jelbart thus, corroborating that wind farm noise was clearly audible in dwellings and, at times, intrusive.

It seems likely then that such noise could be heard over a television, or radio as had been recorded in some noise logs, and reported in discussions with Mr and Mrs Jelbart, and Mr Uren.”

And this despite the fact that a noise mitigation strategy was in place at the time, with a select number of turbines operating in “reduced sound mode”.

But instead of accepting the umpire’s decision, for which we the ratepayers have paid $33,000, the shire has offered the operator of the wind farm right of reply for two weeks.

It’s bound to start a ping-pong match involving the aggrieved property owners’ lawyers, the shire’s lawyers, the operator and the state government but what needs to happen is this: The shire council must finally acknowledge that the neighbours of the Bald Hills Wind Farm, their own ratepayers, have a legitimate gripe under the Public Health and Wellbeing Act and support them in their attempts to get redress from the operator and the State Government. And the State Government must finally admit that it allowed the turbines to be sited too close to the existing farm houses for them not to cause a noise nuisance.

Unfortunately, having been told all the way through the approvals process and beyond that the turbines were too close, the government, the shire and possibly us the ratepayers are going to have to pay through the nose for the mistake.

It’s a stuff up of monumental proportions, with wide ramifications, the fallout of which can only be guessed at the moment.
Sentinel Times

Michael Giles hit the nail on the head when he says: “the State Government must finally admit that it allowed the turbines to be sited too close to the existing farm houses for them not to cause a noise nuisance.”

That observation is not limited to South Gippsland and the Bald Hills, but applies right across Victoria: eg, Waubra, Macarthur and Cape Bridgewater – to name three of the most notorious public health disasters in that State.

The Bald Hill plaintiffs now have two strings to their bow: forcing the Council to remedy the nuisance under the Public Health and Wellbeing Act; and a common law nuisance claim for damages for loss of the use and enjoyment of their homes.

Given the arrogant and high-handed responses of the the Council, the Environment Department and the developer (the likely defendants to a common law nuisance claim) to the plaintiffs’ numerous and now completely justified complaints, the plaintiffs are odds-on to recover aggravated and possibly exemplary damages, as well.

For the benefit of Victorians suffering from the same kind of turbine noise torture as that being dished out at the Bald Hills, here’s how the Public Health and Wellbeing Act helped the plaintiffs bring the Council to heel.

Under the Act noise ‘nuisances’ are defined as follows:

PUBLIC HEALTH AND WELLBEING ACT 2008 – SECT 58

Application of Division

(1) This Division applies to nuisances which are, or are liable to be, dangerous to health or offensive.

(2) Without limiting the generality of subsection (1), this Division applies in particular to nuisances arising from or constituted by any –

…

(e) noise or emission; or

(f) state, condition or activity; or

(g) other matter or thing –

which is, or is liable to be, dangerous to health or offensive.

(3) For the purpose of determining whether a nuisance arising from or constituted by any matter or thing referred to in subsection (2) is, or is liable to be, dangerous to health or offensive –

(a) regard must not be had to the number of persons affected or that may be affected; and

(b) regard may be had to the degree of offensiveness.

(4) In this section, “offensive” means noxious or injurious to personal comfort.

Anyone who has had to suffer through a night of thumping, roaring wind turbine noise knows just how injurious it is to their own personal comfort.

Little wonder that James Smith and Associates determined that the wind turbine noise at Bald Hills satisfied the definition above.

Section 59 means that the plaintiffs are also free to pursue their common law damages claim against the defendants.

And s60 makes the Council liable to remedy any nuisance that fits the definition above:

PUBLIC HEALTH AND WELLBEING ACT 2008 – SECT 60

Duty of Council

A Council has a duty to remedy as far as is reasonably possible all nuisances existing in its municipal district.

But the key benefit of the Act to Victorians is that all they need to do is make a complaint to their local Council under s62:

PUBLIC HEALTH AND WELLBEING ACT 2008 – SECT 62

Notification of nuisance

(1) If a person believes that a nuisance exists, that person may notify the Council in whose municipal district the alleged nuisance exists.

(2) The Council must investigate any notice of a nuisance.

(3) If, upon investigation, a nuisance is found to exist, the Council must –

(a) take any action specified in subsection (4) that the Council considers appropriate; or

(b) if the Council is of the opinion that the matter is better settled privately, advise the person notifying the Council of the nuisance of any available methods for settling the matter privately.

(4) For the purposes of subsection (3)(a), the Council may –

(a) if section 66 applies, exercise the powers conferred by that section;

(b) issue an improvement notice or a prohibition notice;

(c) bring proceedings under section 219(2) for an offence against this Act.

Note

See section 197 in relation to the power of a Council to bring proceedings after it has issued an improvement notice or a prohibition notice in respect of a nuisance.

It’s the section above that brought the South Gippsland Council unstuck.

Having received numerous complaints under the Act, it started off stonewalling and, when it did engage with the complaints, it carried out a Mickey Mouse ‘investigation’ which was ultimately slammed by a Supreme Court Judge, who ordered the Council to crack-on and do its duty under the Act.

Any Victorian complainant facing the kind of shenanigans engaged in by the South Gippsland Council need only refer their Council to s63:

PUBLIC HEALTH AND WELLBEING ACT 2008 – SECT 63

Failure of Council to investigate complaint

(1) If the Council does not, within a reasonable time of being notified of an alleged nuisance, investigate the subject matter of the notification, the person who notified the Council may make a complaint to the Magistrates’ Court of the existence of the alleged nuisance.

(2) If the Magistrates’ Court receives a complaint under subsection (1), the Magistrates’ Court may –

(a) summon the person alleged to be contravening section 61 to appear before the Magistrates’ Court; and

(b) proceed as if the complaint had been made by a Council under section 197(2).

(3) If the Magistrates’ Court is satisfied that the person making a complaint under this section had reasonable grounds for doing so, the Magistrates’ Court may order the Council to pay any costs and expenses incurred by that person.

(4) The Magistrates’ Court must not order a Council to pay any costs or expenses under subsection (3) unless the Magistrates’ Court first gives the Council or its representative an opportunity to be heard.

(5) If the Magistrates’ Court is satisfied that a complaint under this section is vexatious or frivolous, the Magistrates’ Court may order the person making the complaint to pay the costs and expenses incurred by the person who has answered the complaint.

There’s nothing vexatious or frivolous in a complaint about the grinding and soul-destroying effects of incessant wind turbine noise, as the Bald Hill plaintiffs are ready to attest in front of a Victorian Supreme Court jury.

The dogged Dominica Tannock and her Bald Hill trailblazers have lit the path towards justice in Victoria. And none too soon.

STT fully expects hundreds of others to follow their lead.

If you live in Victoria and you’re being tormented by wind turbine noise, why not drop a line to your local Council?

As set out above, it has an absolute duty to not only properly investigate any such complaint, but to remedy the nuisance complained of.

If your Council ignores your complaint, why not give Dominica Tannock a call?

We expect she’d be delighted to add your name to a class-action. As they say, the more the merrier.