Slam Dunk: Wind Developer Faces $Millions in Liability for Noise Nuisance – Acoustic Report Finds Wind Farm Non-Compliant

Until now, Australia’s wind industry owned the game. Having written the rules of operation, helped by corrupt government officials and its pet acoustic consultants, wind power operators have treated noise affected neighbours with derision and contempt.

Now the game is the wind industry’s to lose, and it all started at a little place in Victoria, called the Bald Hills.

Driven mad by incessant, grinding, thumping wind turbine noise a group of farmers lawyered up and went on the offensive: their run of victories now pose an existential threat to the Australian wind industry.

For years, they’ve battled their local Council – the body responsible under the Public Health and Wellbeing Act to prosecute noise nuisance complaints.

Their lawyer, Dominica Tannock, a tenacious young Melburnian, never let up.

Ground into submission, the Council was forced to engage one of Melbourne’s top Queen’s Counsel to get his independent opinion on the substance of the complaints.

In a 38 page opinion, Paul Connors QC held that the local’s complaints were not only credible and consistent, they were, in fact, the best evidence of the existence of an actionable nuisance.

Based on their evidence, the QC had no hesitation in finding that the noise from the Bald Hill’s wind farm constituted a nuisance contrary to the statutory nuisance provisions of the Public Health and Wellbeing Act.

Referring to the evidence of the local complainants – all of whom complained about constant sleep disruption and sleep deprivation caused by wind turbine noise – the QC, relying on a long line of common-law authorities, reasoned that “The loss of even one night’s sleep may amount to such a substantial interference with personal comfort as to constitute a nuisance”. The long-suffering folk at Bald Hills have lost a whole lot more than a single night’s sleep. For more, see our posts here and here.

Meanwhile, Dr Bob Thorne and his team have been gathering the evidence that will bury the operator of the Bald Hills Wind Farm, which now faces liability in the $millions. Not only is the Bald Hills Wind Farm creating a nuisance (and the basis for substantial damages) it’s in breach of its planning permit, because the noise generated exceeds the noise limit set by the conditions of that permit. For the long-suffering neighbours, their legal position couldn’t get any better.

Here’s a rundown of what Dr Thorne and his team found.

A Noise Impact Assessment Report for Residents Adjacent to the Bald Hills Wind Farm
Noise Measurement Services Pty.Ltd.
Bob Thorne
25 June 2019

Executive Summary
This Summary Report is part of the Bald Hill Wind Farm monitoring report series prepared for Mr J. Zakula and participants in the residents’ group who have requested monitoring and assessment of noise emissions from the Wind Farm.

Two questions were posed by the residents:

  • Does the Bald Hills Wind Farm (BHWF) comply with its approval conditions?; and
  • Do nuisance conditions exist due to the operation of the Bald Hills Wind Farm?

Monitoring of sound levels at homes took place over May 2018 to March 2019. Sound levels were recorded inside and outside the primary measurement location, and outside at the other homes. The sound level data is correlated with weather data, power generation data and diaries of personal perceptions of sounds from the wind farm. The data recorded to date allows initial conclusions to be made. Specialized psychoacoustic analysis of monitoring data is not applied as part of the reporting program at this time.

Relevant Approval Conditions for the Bald Hills Wind Farm are recorded in this report. Condition 19 relates to noise management and compliance. The approval condition applies New Zealand standard 6808:1998 ‘Acoustics-The Assessment and Measurement of Sound from Wind Turbine Generators’. Condition 22 applies where Condition 19 is found to have been breached, and applies noise mitigation measures including removal of turbines.

Findings

  • Regular and consistent LA95 background sound levels above 40 dB(A) coinciding with BHWF power generation, were recorded over the period May 2018 to March 2019;
  • Increases in background sound levels due to Bald Hills Wind Farm activity and compliance/non-compliance are identified (Approval Condition 19(a));
  • Perceived ‘Special audible characteristics’ of the wind farm operation are identified by individual persons and audio recordings. Therefore, the requirements of clause 4.4.3 of NZS6808:1998 and Condition 19(b) must be applied;
  • A penalty of 5 dB(A) applies to measured night-time sound levels affected by special audible characteristics under the New Zealand Standard.
  • Nuisance conditions are identified and recorded by individual persons as ‘sleep disturbance’, ‘intrusive noise’ and ‘annoyance’;
  • Non-compliance with Approval Condition 19(c) is shown in both the monitored sound levels (reported as ‘Night-time 10% Loudest’) and through the identification of sleep disturbance as reported by individual persons.

The monitoring program confirms that sound levels were exceeded, and sleep disturbance, intrusive noise and nuisance conditions existed at the homes of the persons involved during this monitoring program:

  • Mr John Zakula (ML1)
  • Mr Don Fairbrother, Mrs Dorothy Fairbrother (ML2)
  • Mr Noel Uren (ML3)
  • Mr Don Jelbart and Mrs Sally Jelbart (ML4)
  • Kilsby residence (ML5) (Roberto working-living on-site)

Similar conditions exist for a home in the vicinity of a potential residential location at King’s Park (ML6). Assessment to the monitoring at ML3 is acceptable for this location.
Noise Measurement Services Pty.Ltd.

Download Bald Hills Wind Farm NMS Summary Report Final (PDF, 46MB, 259 pages)

Video of the farm in operation taken in 2018 (use good quality headphones).

Don Fairbrother: angry farmer, lawyered up, armed & dangerous.

 

For the owners of the Bald Hills Wind Farm (among others) the troubles don’t end with their liability in damages to noise affected neighbours.

The REC subsidies they pocket (to the tune of between $800,000 and $1 million per turbine, per year) oblige them to satisfy Federal and State law, which includes the conditions of their planning consents.

Wind farms are defined as “power stations” under the Renewable Energy (Electricity) Act 2000; and the CER’s power to accredit them to receive RECs appears in section 14(2):

A power station is eligible for accreditation if:

(b) the power station satisfies any prescribed requirements.

For that section the “prescribed requirements” appear in the Renewable Energy (Electricity) Regulations 2001 and Regulation 4(1)(c):

Eligibility for accreditation

(1) For paragraph 14(2)(b) of the Act:

(c) the power station must be operated in accordance with any relevant Commonwealth, State, Territory or local government planning and approval requirements.

By operation of the Act and Reg 4(1)(c) a power station is not eligible to be accredited to receive RECs unless that regulation is satisfied, at all times, as a matter of fact.

STT hears that a complaint will soon be lodged with the Federal Energy Minister, Angus Taylor, pointing out that, because the Bald Hills Wind Farm is in breach of the conditions of its planning consent, it is not eligible to receive Renewable Energy Certificates, at all. Indeed, it never has been.

When a welfare recipient claims benefits they’re not entitled to, or a taxpayer fails to declare income to the ATO, it’s commonly referred to as a ‘fraud on the Commonwealth’. Welfare cheats and tax frauds are pursued with relentless vigour by the Commonwealth.

On the face of it, the owner of the Bald Hills Wind farm is doing just that: defrauding the Commonwealth, receiving hundreds of $millions in REC subsidies, which it was never eligible to receive. And it’s not alone; there are dozens of other wind farm operators, in the same boat.

Over to you, Angus.

About stopthesethings

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

Comments

  1. Hi STT, Great news that residents are finally getting some legal traction. Does STT have a link to the legal decision handed down? Thanks again.

    • Tony Edney says:

      There has been no legal decision in Australia arriving at a finding of nuisance just yet. And wind companies everywhere have so far been more ready to settle a case rather than risk reputational damage from having a court find against them. But stay tuned, the legal ground is proving to be fertile to the cause!

  2. Jackie Rovensky says:

    The Federal Governments Bank balance would look a whole lot better if they did pursue these companies for the money they’ve provided to these companies.
    Just think of all the good that money would be doing for the people of this Nation if the Government made the decision to treat these companies as they do anyone else who owes them money.
    Think – maybe they could use the refunds to build an energy production facility that can be trusted to perform when needed without having to add bits and pieces to ‘store’ energy, and don’t have to replace itself and any add-ons every couple of decades or less.
    The companies certainly wouldn’t be too quick to seek to install more if they cannot be certain they will not breach the regulations.
    Further if the authorities got their act together and produced regulations on setbacks that are created to ensure neighbours are not damaged or inhibited in their daily lives from all noise produced obscenities, and do not have their environment destroyed by the presence of inappropriate industrial structures and machinery within their rural districts.
    Oh if only those who write the regulations actually got out there and experienced what its like to live with these things on your doorstep day and night week in week out.
    If they did maybe they would not fall for the fast talk of these companies and their stupid hangers on who are there either to appear to be ‘important’ and/or just for a financial gain.
    Go the people of Bald Hills and show them being Bold has its advantages – anyone can win if they have right on their side and the temerity to push forward against oppressors. Its hard, it takes a lot out of you, but the win in the end is worth every obstacle and every doubt.

  3. Defrauding the people and the government while getting rich which is what the schemes are really all about.

  4. Bill Quinn says:

    Good news here STT.I can think of at least 3 Councils in the Mid North of SA that need to be added to the list.

  5. wal1957 says:

    Angus and the Government will not do a bloody thing re this situation. As stated, it could be argued that the wind farm has defrauded the government and should therefore be liable to prosecution including refunding all monies paid via the REC scheme. The government will say ‘naughty naughty’, and that will be the end of it.

  6. Terry Conn says:

    Fascinating development for these long suffering people. I look forward to living long enough to see justice prevail.

  7. Finally. no wonder the wind weasels are offering neighbors more per year than what they offered one off payment for two km setback. But when you get intermittant sleep no amount of money makes that up. As we have found with the uncompliant macarthur turbines. They just say they are compliant as the moyne councillers have voted 6 to one everytime it comes up for compliance. Hope we eventually get enough to bring these frauds down.

  8. Reblogged this on Climate- Science.

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