Shut Down: Supreme Court Decision Destroys Wind Industry’s Entire Business Model

The Supreme Court’s decision, forcing a wind farm operator to shut down all of its turbines at night-time has wrecked the wind industry’s business model in Australia and elsewhere.

Being forced to limit the operation of wind turbines to the daytime only, means forgoing every last nickel of income that might have been generated at night-time.

Renewable energy rent-seekers are, quite naturally, rattled by the decision and are howling like a bratty kid who’s been deprived of his favourite toy, for no apparent reason.

But, as we detail below, it’s much worse than these crony capitalists presently understand.

“Its a Disaster”: Aussie Noise Nuisance Court Defeat Panicking Renewable Energy Investors
Watts Up With That?
Eric Worall
26 March 2022

According to the ABC, the recent court ruling that upheld a complaint by residents that wind turbines are a noise nuisance has sent “ripples of uncertainty” throughout the entire Renewable Energy industry.

Alinta says court wind farm ruling will have ‘dramatic’ and chilling effect on renewable energy investment

By energy reporter Daniel Mercer
Posted 20h ago20 hours ago, updated 19h ago

One of Australia’s biggest renewable energy investors says a court’s decision to uphold complaints against a Victorian wind farm could have “dramatic” and chilling effects on the country’s transition away from fossil fuels.

Alinta says court wind farm ruling will have ‘dramatic’ and chilling effect on renewable energy investment
ABC
Daniel Mercer
25 March 2022

Alinta boss Jeff Dimery, whose company is one of Australia’s biggest private energy providers, said the ruling by Victoria’s Supreme Court would be a “shock” to companies planning to invest billions of dollars in new wind farms.

In its decision, the court backed claims brought against the 106MW Bald Hills wind farm in the south east of the state by neighbours who argued they were unable to sleep because of noise from the project.

Justice Melinda Richards ordered the project’s operators to switch off parts of the wind farm at night until the noise levels could be reduced to an acceptable level.

She also told the operators to pay aggrieved neighbours more than a quarter of a million dollars in costs and damages.

Mr Dimery said the decision would send “ripples” of doubt through the renewable energy industry across the country given the potential precedent it sets for other wind farms.

He said the longer-term implications were potentially significant, noting the ruling could scare away developers by making wind farms harder to build and less financially attractive.

“It’s a disaster,” Mr Dimery said.

“This is a pretty dramatic outcome, I have to say.

“This court decision certainly changes the risk appetite for investors.

“I think there’ll be some fairly serious ramifications off the back of this.”
ABC

WUWT wrote about the Bald Hills Wind Farm case in 2021, but at the time it looked like residents had lost. So I’m personally pleased to report that this story appears to have had a happy ending.

WUWT has frequently written about the environmental impact of wind turbines, including claims of ill health effects from wind turbine infrasound. There have even been claims wind turbine noise leads to whales beaching, because it messes up their navigation sense. But cases in which plaintiffs obtain legal relief because of wind turbine noise are rare. Let us hope this court case win which upholds the right of residents to not have their sleep disrupted by “green energy” mechanical monstrosities is the first of many.
Watts Up With That?

The good people of Gippsland, Victoria have won more than a victory for decency, compassion and common sense.

What they have done besides, is completely upend the wind industry’s business model; hence the pervasive sense of fear and loathing amongst those pocketing $billions in subsidies every year.

However, as we set out below, the fact that the operator of the Bald Hills wind farm has never been compliant with the conditions of its planning consent means that it will be forced to repay tens of millions of dollars worth of renewable energy certificates it has received on false pretences.

A renewable energy generator has to satisfy Federal legislation to become and remain accredited to receive renewable energy certificates (RECs).

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.

From the clear wording of the Act and Reg 4(1)(c) a power station cannot be lawfully eligible to be accredited to receive RECs, unless that regulation is wholly satisfied, as a matter of fact.

Justice Richard’s finding that Bald Hills was in breach of its planning permit from the get-go means it should have never been accredited. Her Honour held:

(4) Has the sound from the turbines received on the plaintiffs’ land at all times complied with the noise conditions in the permit?

Bald Hills has not established that the sound received at either Mr Uren’s house or Mr Zakula’s house complied with the noise conditions in the permit at any time. Permit compliance is not determined by the Minister, who is the responsible authority for the permit. While the Minister can initiate enforcement action, it is for the relevant court or tribunal to determine permit compliance.

Bald Hills did not demonstrate compliance with condition 19(a) of the permit, either by the 2021 assessment of noise monitoring data undertaken by its acoustic expert, Christopher Turnbull, or his review of MDA’s noise assessments. Mr Turnbull’s method for assessing compliance with condition 19(a) was not the method prescribed by the NZ Standard, properly interpreted. MDA initially did not assess compliance at Mr Zakula’s house or at Mr Uren’s house, but at other nearby locations. The findings of the noise assessment reports MDA produced for Mr Zakula’s house in March 2017 and for Mr Zakula’s house in June 2017 were plainly flawed.

Neither Mr Turnbull nor MDA demonstrated compliance with condition 19(c), in relation to the night period. Condition 19(c) provides a ‘hard measure’ for protecting sleep and requires assessment on individual nights.

In addition, neither Mr Turnbull nor MDA properly applied condition 19(b) of the permit in assessing compliance with conditions 19(a) and 19(c).

Those findings show that the Bald Hills wind farm is, and has always been operated in flagrant breach of its planning consent (and, therefore, contravening State and/or local government planning and approval requirements); and, accordingly, should not be (or have ever been) accredited to receive RECs: it is not being “operated in accordance with [its] … planning and approval requirements”, and has never been operated in accordance with those requirements.

The Bald Hills wind farm comprises 52, 2 MW Senvion MM92s. Assuming that they’re producing wind power 30% of the time, each wind turbine would be entitled to receive 5,256 RECs annually (8,760 hrs x 0.3 x 2MW) A REC is rewarded for every MWh of eligible renewable energy delivered to the grid.

With 52 turbines operating, Bald Hills was entitled to receive 273,312 RECs annually. And, since it started operating seven years ago in March 2015, 1,913,184 RECs, all told.

The price for RECs has varied over time, but it’s fair to assume an average value of $60 per REC over that time frame.

At $60 per REC, the operator has received Commonwealth benefits in the order of $16.4 million each year, for seven years; a total of $114.8 million.

And it did so when it was never entitled to receive a single REC.

Back in September 2015, when challenges were raised by the late Senator John Madigan to the eligibility of Victoria’s wind power outfits to receive RECs, the Clean Energy Regulator came up with a cunning plan to have the operators provide “certificates of compliance”, purportedly to satisfy the CER that the operators were lawfully entitled to receive RECs.

The certificates contained a declaration from the operator that it was operating its wind farm in accordance with its planning permit, and state and Commonwealth law. The process was, of course, a total sham; the certificates were produced by the wind farm operators themselves, and without reference to any credible supporting evidence, at all.

In the case of Bald Hills (among numerous others) those “certificates of compliance” were a complete falsehood.

Try making a false declaration in your tax return and see how the Australian Tax Office responds. The ATO’s compliance and recovery squad are on you in a heartbeat and you can (rightly) be expected to get hit with whopping fines and penalties and – if serious enough – or you’ve done it before – you’ll end up with a spell in the cooler, sure as night follows day.

The Australian Commonwealth welfare agency, Centrelink has an entire division devoted to beating up on single mothers who try to “game” the system a little by fudging their returns and declarations – about income they might earn on the side; or about where the kid’s dad is really living. Old-age pensioners cop the same kind of scrutiny.

Defrauding the Commonwealth by telling fibs to Centrelink attracts serious criminal penalties over peanuts; and the perpetrators are made to repay every last cent received on false pretences to the Commonwealth; going hard on welfare fraud is always seen as a vote winner, amongst our political betters. On that score, the Commonwealth offences for giving false or misleading information or documents to obtain benefits (and otherwise) appear in the Criminal Code Act 1995:

Part 7.4 — False or misleading statements

Division 136 — False or misleading statements in applications

136.1   False or misleading statements in applications

Knowledge

(1)  A person is guilty of an offence if:

(a)  the person makes a statement (whether orally, in a document or in any other way); and

(b)  the person does so knowing that the statement:

(i)  is false or misleading; or

(ii)  omits any matter or thing without which the statement is misleading; and

(c)  the statement is made in, or in connection with:

(i)  an application for a licence, permit or authority; or

(ii)  an application for registration; or

(iii)  an application or claim for a benefit; and

(d)  any of the following subparagraphs applies:

(i)  the statement is made to a Commonwealth entity;

(ii)  the statement is made to a person who is exercising powers or performing functions under, or in connection with, a law of the Commonwealth;

(iii)  the statement is made in compliance or purported compliance with a law of the Commonwealth.

Penalty:  Imprisonment for 12 months.

(1A)  Absolute liability applies to each of the subparagraph (1)(d)(i), (ii) and (iii) elements of the offence.

(2)  Subsection (1) does not apply as a result of subparagraph (1)(b)(i) if the statement is not false or misleading in a material particular.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3).

(3)  Subsection (1) does not apply as a result of subparagraph (1)(b)(ii) if the statement did not omit any matter or thing without which the statement is misleading in a material particular.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3). See subsection 13.3(3).

Recklessness

(4)  A person is guilty of an offence if:

(a)  the person makes a statement (whether orally, in a document or in any other way); and

(b)  the person does so reckless as to whether the statement:

(i)  is false or misleading; or

(ii)  omits any matter or thing without which the statement is misleading; and

(c)  the statement is made in, or in connection with:

(i)  an application for a licence, permit or authority; or

(ii)  an application for registration; or

(iii)  an application or claim for a benefit; and

(d)  any of the following subparagraphs applies:

(i)  the statement is made to a Commonwealth entity;

(ii)  the statement is made to a person who is exercising powers or performing functions under, or in connection with, a law of the Commonwealth;

(iii)  the statement is made in compliance or purported compliance with a law of the Commonwealth.

Penalty:  Imprisonment for 6 months.

(4A)  Absolute liability applies to each of the subparagraph (4)(d)(i), (ii) and (iii) elements of the offence.

(5)  Subsection (4) does not apply as a result of subparagraph (4)(b)(i) if the statement is not false or misleading in a material particular.

Note: A defendant bears an evidential burden in relation to the matter in subsection (5). See subsection 13.3(3).

(6)  Subsection (4) does not apply as a result of subparagraph (4)(b)(ii) if the statement did not omit any matter or thing without which the statement is misleading in a material particular.

Note: A defendant bears an evidential burden in relation to the matter in subsection (6). See subsection 13.3(3). ….

Definitions

(9)  In this section:

“benefit” includes any advantage and is not limited to property.

Division 137 — False or misleading information or documents

137.1   False or misleading information

(1)  A person is guilty of an offence if:

(a)  the person gives information to another person; and

(b)  the person does so knowing that the information:

(i)  is false or misleading; or

(ii)  omits any matter or thing without which the information is misleading; and

(c)  any of the following subparagraphs applies:

(i)  the information is given to a Commonwealth entity;

(ii)  the information is given to a person who is exercising powers or performing functions under, or in connection with, a law of the Commonwealth;

(iii)  the information is given in compliance or purported compliance with a law of the Commonwealth.

Penalty:  Imprisonment for 12 months.

(1A)  Absolute liability applies to each of the subparagraph (1)(c)(i), (ii) and (iii) elements of the offence.

(2)  Subsection (1) does not apply as a result of subparagraph (1)(b)(i) if the information is not false or misleading in a material particular.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3).

(3)  Subsection (1) does not apply as a result of subparagraph (1)(b)(ii) if the information did not omit any matter or thing without which the information is misleading in a material particular.

Note:  A defendant bears an evidential burden in relation to the matter in subsection (3). See subsection 13.3(3).

(4)  Subsection (1) does not apply as a result of subparagraph (1)(c)(i) if, before the information was given by a person to the Commonwealth entity, the Commonwealth entity did not take reasonable steps to inform the person of the existence of the offence against subsection (1).

Note: A defendant bears an evidential burden in relation to the matter in subsection (4). See subsection 13.3(3).

(5)  Subsection (1) does not apply as a result of subparagraph (1)(c)(ii) if, before the information was given by a person (the first person ) to the person mentioned in that subparagraph (the second person ), the second person did not take reasonable steps to inform the first person of the existence of the offence against subsection (1).

Note: A defendant bears an evidential burden in relation to the matter in subsection (5). See subsection 13.3(3).

(6)  For the purposes of subsections (4) and (5), it is sufficient if the following form of words is used:

“Giving false or misleading information is a serious offence”.

137.2 False or misleading documents

(1)  A person is guilty of an offence if:

(a)  the person produces a document to another person; and

(b)  the person does so knowing that the document is false or misleading; and

(c)  the document is produced in compliance or purported compliance with a law of the Commonwealth.

Penalty:  Imprisonment for 12 months.

(2)  Subsection (1) does not apply if the document is not false or misleading in a material particular.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3).

(3)  Subsection (1) does not apply to a person who produces a document if the document is accompanied by a written statement signed by the person or, in the case of a body corporate, by a competent officer of the body corporate:

(a)  stating that the document is, to the knowledge of the first-mentioned person, false or misleading in a material particular; and

(b)  setting out, or referring to, the material particular in which the document is, to the knowledge of the first-mentioned person, false or misleading.

Note:  A defendant bears an evidential burden in relation to the matter in subsection (3). See subsection 13.3(3).

The operator at Bald Hills has had to “produce” documents, provide “information” and make “statements” and “representations” to Australia’s Clean Energy Regulator (CER) that they are, at all times, satisfying Commonwealth and State Law, including the conditions of their planning permits.

Wind farm operators need to make such statements and provide such information and documents in order to remain accredited to receive RECs.

RECs are, in substance, a Federally mandated tax on all Australian power consumers; issued directly as a subsidy to wind power outfits; and, therefore, a “benefit” obtained from a “Commonwealth authority” – ie the CER.

Based on what Justice Richards found in Uren & Zakula v Bald Hills Wind Farm Pty Ltd [2022] VSC 145, the operator can expect keen interest from the Commonwealth as it seeks to recoup more than $100 million worth of RECs that it was never entitled to receive.

And the operator will be well advised to seek legal advice about the criminal charges its executives now face.

So, yes, indeed, the Supreme Court’s decision is a “disaster” for the wind industry, in more ways than one.

Oh dear, how sad, never mind.