Wind Farm Wars: Farmers Pursue Wind Developer for $Millions In Supreme Court Noise Nuisance Class Action

Don Fairbrother: leads lawyer-ed up band of angry locals.

 

The wind industry is on the defensive as the number of nuisance cases being pursued by noise affected neighbours mounts.

In Victoria, it all started at a place called Bald Hills with a lawyer named Dominica Tannock – and her firm, DST Legal: Litigation Breakout: Victorian Wind Farm Neighbours Pursuing $Millions from Wind Developers for Noise Nuisance

A couple of years back, Dominica’s clients at Bald Hills began pursing the wind power outfit responsible for their thumping, grinding misery under the Public Health and Wellbeing Act, that prohibits noise “which is, or is liable to be, dangerous to health or offensive”.

In “determining whether a nuisance arising from [noise] is, or is liable to be, dangerous to health or offensive regard must not be had to the number of persons affected or that may be affected; and regard may be had to the degree of offensiveness.”  Where “offensive” means “noxious or injurious to personal comfort”. For more on the operation of the Act: Victorian Vengeance: Neighbours Launch $Multi-Million Noise Nuisance Law Suit Against Wind Farm Operator & Local Council

Dominica – a tenacious young Melburnian – went after the local Council – the body responsible under the Public Health and Wellbeing Act to prosecute noise nuisance complaints, and 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.

Dominica’s tenacity in the pursuit of justice for her clients is exemplary, and has become a major headache for wind power outfits across Victoria.

Late last year, Dominica’s clients met with the wind farm operator’s lawyers to thrash out a deal. STT hears that the plaintiffs rejected the operator’s offer as an insult. Now, the plaintiffs are going to have their day in court in front of a jury of their peers.

Needless to say, the wind industry in Victoria is ruing the day it ever crossed swords with Dominica Tannock.

Neighbours take Bald Hills wind farm to court over health complaints
The Australian
Graham Lloyd
18 February 2020

Australia’s first group legal action for noise and health impacts from a wind farm has been lodged in the Victoria Supreme Court against the 106 megawatt Bald Hills project in Gippsland.

A judge and jury in the coalmining centre of Morwell will be asked to hear the complaint about health and financial impacts and a failure by the wind farm’s owner to take action to stop it.

A group of 12 residents is seeking orders from the court to have the development curtailed or shut down, and for its owners to pay them compensation.

Bald Hills Wind Farm is expected to lodge its defence next month, with a directions hearing due in April. A trial could take place later this year.

The complainants are from four properties — the Fairbrother, Jelbart, Uren and Zakula residences. The group’s statement of claim says the wind farm has caused them “to experience great discomfort, distress, inconvenience, disturbance and upset including headaches, earaches, neck aches, tinnitus, ­unpleasant pulsing sensations, ­disturbed sleep, stress and annoyance, and have rendered the affected properties unhealthy and uncomfortable to live and work in”.

They also claim the value of their properties has been affected by the wind farm.

The noise from the wind farm has “caused a substantial and unreasonable interference with the use and enjoyment of the affected properties”, the statement says.

According to the company website, the Bald Hills project has 52 turbines and produces 380,000MW/h of electricity a year.

It was developed by Mitsui & Co and sold to Australian Renewables Income Fund in 2017.

A lawyer for the residents, ­Dominica Sophia Tannock from DST Legal, said the action was against the current owner.

Bald Hills Wind Farm has ­advised the Supreme Court that it has appointed Allens Lawyers for its defence.

The case is listed in the circuit list at Morwell, which has big coal and fossil fuel developments.

Ms Tannock said the applicants had asked for the matter to be heard by a judge and jury.

A company spokesman said: “Bald Hills Wind Farm will be vigorously defending the claim, however it will not be providing any ongoing commentary on the matter as it is before the court.”

The statement of claim says Bald Hills Wind Farm has breached, and is continuing to breach, its duty of care to each of the plaintiffs. It also says it has been made aware of the impact the wind farm has been having on its neighbours since at least September 2018.

South Gippsland Shire Council engaged an expert to assess the noise from the wind farm.

Last March, planning expert Paul Connor QC told the council there was sufficient evidence of a nuisance affecting the Fair­brother, Jelbart, Uren and Zakula residences. The council told the company last March that the wind farm was affecting the nearby families.

In response, the company applied to amend the permit and the rules applying to noise at night.

The claimants are seeking declarations that Bald Hills Wind Farm has failed to comply with its permit. They want an injunction to restrain the wind farm from continuing the nuisance, or else provide equitable compensation.

The claim also calls for an ­injunction requiring the company to comply with the permit. And the residents are seeking damages, ­aggravated and exemplary damages, interest and costs.
The Australian

The Bald Hills plaintiffs eager for their day in Court.

About stopthesethings

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

Comments

  1. Reblogged this on ajmarciniak.

  2. “According to the company website, the Bald Hills project has 52 turbines and produces 380,000MW/h of electricity a year”

    It can alternatively be stated according to the math that one turbine can make enough power for 19,523 modest homes TV’s and computers and incandescent lights for 12 hours each day while also heating the home for that same period of 12 hours each day using an 1875 watt hair dryer.

    If their statement about 380 billion watts of E per Y per H is the maximum out put possible as compared to actual yearly output then we would have to cut down to size that per turbine “enough to power” figure of homes to 3,319 per turbine being heated with a hair dryer thus logging this number as a more realistic representation of how wind farms provide all the energy we need to heat our homes while drying our hair while at the same time we smart-multi-task by exhaling so much carbon dioxide movable AIR to our homes for insulation that makes it’s way into attics and cracks in walls to insulate from the heat escaping like what happens in green houses made by unicorns that fart green energy all day.

  3. The question that needs to be asked is why has equipment been allowed into our countries that is emitting audible noise and LFN/ acoustic pulsations/ infrasound at levels that are causing cumulative and irreversible harm to nearby residents who are unwillingly exposed to this harm in their homes…in their beds while they try to sleep? These people did not consent to being harmed.
    In Canada, we have Federal Statutes that supposedly protect us from this sort of harm. Who is responsible for the violation of these statutes? Why have they not taken legal action on behalf of the innocent men, women and children who are being harmed?

  4. Hopefully this legal action action will work to bring justice to the residents.
    In Ontario, we have a Ministry of the Environment, which is mandated to protect residents from environmental pollution. These people were utterly unprepared for dealing with industrial scale turbines. They had an outrageously slow response record to reports that were made to the SPILL hotline, because their head office was a couple of hours away from the homes of residents reporting noise. By the time they arrived to record the noise, the wind speed and barometric pressure had invariably changed.
    Eventually residents requested l’ong term, on site’ testing for trespassing noise, but the Ministry did not have the proper equipment and did not have enough equipment. On top of that, they refused to release their recording results.
    The government that bungled this situation was decimated at the polls. They lost their party status.The newly elected government is under severe pressure to stop the harm. This was an election promise.
    The residents who have had to endure the noise for almost five years now, as well as the harm from LFN and acoustic pulsations/infrasound which no one has ever taken responsibility for, should not have to pay for legal action. Residents have already spent a lot of extra money to stay away as much as possible from their homes, in order to endure this ridiculous situation.
    Paying a lawyer to defend them in a long drawn out court proceeding would be adding more distress and harm.
    Decisive action must be taken by this government and this action is long overdue.

  5. Reblogged this on uwerolandgross.

  6. Will be of interest how much falls back on the host landowners,,.
    I hope its significant .,

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