Supreme Court Exposes Wind Industry’s Appalling Treatment of Wind Farm Neighbours

The Supreme Court’s decision, forcing a wind farm operator to shut down all of its turbines at night-time, lifts the lid on a toxic culture, where the wind industry torments and ridicules its victims, as a matter of standard corporate practice.

On 25 March 2022, Justice Melinda Richards of the Victorian Supreme Court slapped an injunction on a wind farm because the noise it generates has been driving neighbours nuts for seven years, and the operator has done absolutely nothing about their suffering.

The victorious plaintiffs, Noel Uren (pictured on the left above) and John Zakula (on the right) have set a legal precedent for the ages; every wind farm neighbour who has suffered at the hands of the wind industry owes them an eternal debt of gratitude.

The full judgment is available here: Uren v Bald Hills WF [2022] VSC 145

And our analysis is available here: Landmark Decision Vindicates Victims: Supreme Court Orders Total Wind Farm Shutdown

One of the important components of the decision was Justice Richard’s finding in favour of the plaintiffs on the question of aggravated damages.

We’ll return to that topic in a moment, but first here’s an interview involving one of the plaintiffs, Noel Uren and his brilliant and tenacious solicitor, Dominica Tannock.

Noisy wind farm legal precedent
ABC PM
Jon Daly
25 March 2022

The operators of a wind farm have been ordered to stop making noise at night and pay hundreds of thousands of dollars to neighbours for sleepless nights.

John Zakula and Noel Uren successfully sued the Bald Hills Wind Farm and have been awarded $260,000 in damages for ‘distress’ and ‘annoyance’ caused by noisy wind turbines.

 

Transcript

Narrator:

Stay with us for more on that case later in the show. But first, to another landmark court ruling today, this one in Victoria, which may have dealt a setback to Australia’s efforts to lower its emissions by looking towards renewable power sources.

This case has seen the operators of a wind farm ordered to stop making noise at night and pay hundreds of thousands of dollars to neighbours for sleepless nights. John Zakula and Noel Uren successfully sued the Bald Hills Wind Farm and have been awarded $260,000 in damages for distress and annoyance caused by noisy wind turbines. Observers say the case establishes a legal precedent, which could have implications for other wind farm operations across the country. Jon Daly reports.

Jon Daly: In the rural hamlet of Tarwin Lower, 175 kilometres Southeast of Melbourne, a wind farm has been sued for being a noisy neighbour.

The droning sound of turbine blades has caused distress and many sleepless nights for some nearby residents. Noel Uren’s complaints were ignored by the operator and the regulators, so he took his fight to the Victorian Supreme Court, and he won.

Noel Uren: It’s taken us a hell of a big fight, and I just hope that… There’s a lot of other people in the same situation, get the same result as us, and I hope there’s a bit of justice done, because there’s a lot of other people around in Victoria and probably Australia going through the same stuff we’re going through. All I’m going to say, keep going if you can, because no one’s above the law.

Jon Daly: Noel Uren and his fellow neighbour John Zakula were awarded a total of $260,000 in damages for distress and annoyance caused by noisy wind turbines. Their lawyer, Dominica Tannock, says the men complained to the wind farm operator of roaring noises at night, but their concerns fell on deaf ears.

Dominica Tannock: So for Mr. Zakula, it was really interfering with his sleep, to the extent that he was leaving his home at nighttime, driving down to the beach, and sleeping in his car.

Jon Daly: How were they treated by the company that owns this wind farm?

Dominica Tannock: Appallingly. Her Honour found that their conduct was high handed, but they treated them, I think as Her Honour found, as just trouble makers. Didn’t believe them. It was gaslighting, made them question their own reality.

Jon Daly: In a precedent setting decision, the judge ordered a permanent injunction on the wind farm to stop it making noise at night in three months time. The court found it had not complied with its noise permit conditions. In a statement, Bald Hills Wind Farm said, “We are currently absorbing the judgement and its implications, and therefore will not be commenting specifically about the ruling detail at this stage.” Dominica Tannock says the ruling sends a clear message to other wind farms in Australia.

Dominica Tannock: Now we have a precinct where a judge has said, “Well, you’re entitled to sleep. And if you can’t sleep and the operator doesn’t address your complaints, you can then go to the court and the court will shut down the wind farm.”

Jon Daly: Dominica Tannock says regulators such as the Victorian EPA, local council, and clean energy regulator have failed to do their job in enforcing noise permits on this wind farm.

Dominica Tannock: Everyone has been hands off, no one has taken responsibility for regulation and just allowed it. Part of the problem has been that the operator has self-regulated and asserted its own operational compliance for the last six years, and the court said it did not demonstrate that it was compliant.

Jon Daly: Advocates for wind energy say the outcome is disappointing. Andrew Bray, national director with community renewable advocacy group, RE-Alliance says it’s unclear what the implications will be for other wind farms.

Andrew Bray: It’s a pity the case has gone as far as it has, but it’s difficult to say to what extent it’s going to set up any kind of precedent going forward. In Victoria, the Victorian government’s established a new framework to provide clarity around how wind farms should operate safely for near neighbours. That framework will come into play soon.

Jon Daly: Bald Hills Wind Farm has 42 days to appeal the decision.

Narrator: John Daly reporting.
ABC PM

John Zakula: not cowed, not broken. Victorious.

 

Andrew Bray is part of a cabal of wind industry propagandists who have worked tirelessly, for years, to prevent these matters ever getting the court.

Bray is hacked off because it was his job to prevent a judgment such as this ever being delivered.

His comment that he is “unclear on what the implications will be for others wind farms” is typical of his delusional naïveté and concordant belief that the wind industry can do no wrong.

Note to Andrew: it sets a precedent which is binding on all lower courts in Victoria and, because it is self-evidently correct, will be regarded as persuasive (and accordingly followed) by all Supreme Court judges in Victoria and other Australian jurisdictions, unless and until the decision is overturned by Victoria’s Court of Appeal. And if you’re still having trouble with the concept of legal precedent in common law jurisdictions, we suggest you consult competent legal counsel.

Dominica Tannock’s line about wind industry “gaslighting” doesn’t cover it. The wind industry’s faux concern, condescension, ridicule and contempt for its countless victims is insidious; it is pervasive; it is evil.

Now, civil damages aren’t awarded for ‘evil’, but they are awarded for a defendant’s high-handed disregard for, and contumelious treatment, of its victims.

Here’s what Justice Richards found on that score:

Issue 21 – Aggravated damages

The plaintiffs also sought aggravated damages, on the basis that Bald Hills knew or ought to have known that it was causing an unlawful nuisance. It was common ground that aggravated damages are compensatory, and may be awarded when the harm done by the defendant’s wrongful act was aggravated by the manner in which it was done. While Bald Hills drew attention to historical doubts as to whether aggravated damages were available for nuisance, it accepted that they could be awarded in an appropriate case, for example where the defendant’s conduct was ‘of such a high-handed nature that it merited aggravated damages’.

In my view, Bald Hills’ conduct towards Mr Zakula and Mr Uren has been of that nature. They both repeatedly complained that noise from the wind turbines at their homes was disturbing their sleep. Mr Uren first complained in May 2015, while Mr Zakula did not formally complain until September 2015. Bald Hills never responded to either man’s complaints by trying to reduce wind turbine noise at their homes. Rather, it denied that they had any cause for complaint, minimised their lived experience of the noise, and treated them as hypersensitive trouble-makers. In 2017, it accepted and relied on MDA’s patently absurd conclusions that it was quieter at both properties after the wind farm started operating. The evidence of both Mr Zakula and Mr Uren left me in no doubt that, over time, they found the lack of any remedial action by Bald Hills to be frustrating and deeply discouraging. I accept that this compounded the effect of the noise nuisance that intermittently kept them awake at night.

When Mr Zakula, Mr Uren and others took their concerns to their local council, Bald Hills engaged lawyers and consultants who flooded the Council with submissions and reports that did not engage with the substance of the complaints. After the Council determined that the wind farm noise was causing an intermittent nuisance at properties including Mr Zakula’s and Mr Uren’s, Bald Hills sought judicial review of the Council’s resolution in this Court. The litigation, while ultimately unsuccessful, was a source of stress for both plaintiffs. Mr Uren found it terribly upsetting, and felt that Bald Hills was ‘treating the little people like rubbish’. Overall, Bald Hills’ response to the complaints to the Council was strikingly disproportionate, and did nothing to mitigate the noise nuisance at the plaintiffs’ homes. I am satisfied that it further aggravated the loss of amenity suffered by both plaintiffs in their homes.

The vigour with which Bald Hills disputed the complaints to the Council would have been better directed to finding a solution to the gearbox tonality issue first identified by MDA in December 2016. MDA advised Bald Hills at that time that it should identify an engineering solution to mitigate tonal emissions for specific turbines, rather than continue to rely on noise optimisation to achieve compliance. It is yet to do so. Its delay in finding a solution is largely unexplained, it being unclear why nothing was in place before Senvion went into voluntary administration in April 2019. Bald Hills’ ongoing failure to fix the known tonality issues in turbines 16 and 23, closest to Mr Zakula’s house, amounts to seriously high-handed treatment of him.

At one point during cross-examination of Mr Zakula, counsel for Bald Hills put to him that ‘give and take’ is important between neighbours. While that is undoubtedly true, it is difficult to see what Bald Hills has given in response to Mr Zakula’s complaints over a period of more than six years. Mr Arthur’s belated offers in December 2020 and March 2021 to discuss acoustic treatments at Mr Zakula’s property were, as I have found, not well directed. A reasonable neighbour would have tried to reduce the noise; Bald Hills has not.

I consider that the manner in which Bald Hills has dealt with the plaintiffs’ reasonable and legitimate complaints of noise has, over many years, at least doubled the impact of the loss of amenity each of them has suffered at their homes. On that basis, I award aggravated damages of $84,000 to Mr Zakula, and $46,000 to Mr Uren.

Thanks to Noel Uren and John Zakula, no more will the wind industry and its stooges, like Andrew Bray, be able to mock and ridicule their victims; no more will they be able to get off scot-free, when they treat hard-working, law-abiding citizens with malice and contempt.

And about time, too.

Supreme Court puts an end to their unnecessary suffering.

About stopthesethings

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

Comments

  1. Noel Dean says:

    Both Noel and John together with their neighbours should be congratulated for exposing the cruelty dished out by unlawful operation of windfarm turbines that go back almost two decades.

    Noel and John should be knighted for there commitment for justice to be served. The treatment directed to people who have made noise vibration complaints in Victoria had been going on for far too long under the watch of the National Wind Farm Commissioner .

    The wind farm commissioner Mr Dyer was appointed by The Malcolm Turnbull Government as soon as Mr Turnbull took control from Tony Abbott. You have to wonder why Mr Dyer was appointed by the Turnbull government given that his son Alex needed the Cherry Tree Wind farm to be approved to get his money back.

    Mr Dyer has since frustrated complainants, after closing complaints without evidence, and then closing complaints against wind farm operators to make it appear complaints had been resolved and no longer exist, a bit like a payment to remove bird deaths from records.

    Thanks to Noel and John for what you have achieved, what you have done will go down in history as you have paved the way for a lot people around the world on how we can go forward, based on this judgement, with a degree of certainty that did not exist before.

    You used the court to take the place of the National Wind Farm Commissioner. Surely he should answer questions about why he treated people with such contempt. He should explain why his Chief of staff was no longer employed by him after she advised some complainants she would interrogate Acciona and the planning minister about making false claims about compliance without evidence.

    Noel Dean

  2. Wind-ded says:

    In awe of the courage and persistence it takes to be heard.

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