The David v Goliath Battle for a Good Night's Sleep

Bald Hills Wind Farm Pty Ltd, which operated turbines at night, failed to take steps to mitigate the production of noise, and lost a David v Goliath battle costing hundreds of thousands of dollars and resulting in injunctions being enforced against them to restrict the production of noise.

In Issue

• The Victorian Supreme Court had to consider whether the operational noise of wind turbines at night caused substantial interference with neighbouring properties, and whether that interference amounted to private nuisance.

The background

The plaintiff's who were neighbours to the Bald Hills Wind Farm (‘the wind farm’) made complaints about the noise emitted by the turbines. When the wind farm failed to take action to remedy any noise, a number of parties affected brought a claim for private nuisance.

The wind farm had been operating 52 turbines since 2015. When it was established, a planning permit was issued and addressed matters such as regulating noise impact and limitations of acceptable operational noise limits during both daytime and night-time. These limitations were created with reference to the New Zealand Standards.¹ The wind farm had a long history of complaints about the noise impacts of the turbines, specifically sleep disturbance.

In response to the complaints, the wind farm engaged specialists in acoustics who formed the view that the noise emitted was consistent with the standards of the planning permit, and as a result no steps were taken to remedy the noise.² Multiple persons then furthered the complaint to the local Council which investigated and reached the conclusion that “it was satisfied there existed a nuisance of the kind alleged by the complainants, but that the nuisance existed only intermittently”.³ Subsequently, the wind farm sought judicial review of the Council decision which was ultimately dismissed.

During 2020, the plaintiffs, Mr Uren and Mr Zakula, and 10 other adjacent neighbours to the wind farm, commenced action in the Victorian Supreme Court seeking damages for nuisance, and an injunction to stop the noise from the wind farm. Evidence was produced during the trial that the wind farm was aware that the gearboxes within some turbines produced a level of noise greater than acceptable. The other parties’ proceedings resolved before trial leaving only the named plaintiffs to pursue a modern-day “David and Goliath” battle for a ‘good night’s sleep’.

The decision at trial

Justice Richards found that:

1. The wind farm operator failed to prove that it had fully complied with the noise conditions in the planning permit;
2. The wind farm had not taken any steps to reduce noise levels at adjacent properties when they were aware of defects within the gearbox of the turbine which produced greater than expected noise⁴;
3. The wind farm failed to prove it complied with the New Zealand Standards within the homes of the plaintiffs, but even if it had proved such, it would not have automatically resulted in there being no common law claim for nuisance⁵;
4. In any event, the relevant NZ Standard only set a limit on the extent to which continuous underlying noise levels may be increased by wind turbine noise, assessed over weeks or sometimes months. It was not directed to intermittent loud noise from wind turbines, and provided no means of determining whether a wind farm produces unreasonably annoying noise in certain weather conditions, or on a particular night;
5. The noise from the turbines has caused a ‘substantial interference with both plaintiffs’ enjoyment of their land – specifically, their ability to sleep undisturbed at night, in their own beds in their own homes’⁶;
6. The public interest did not outweigh the need to take steps to reduce noise levels, ultimately satisfying the tort of nuisance.

As a result of the findings the court took two significant steps. The first being the grant of an injunction which restrained the wind farm from producing noise, which causes nuisance, from the turbines at night and further required the wind farm to take necessary measures to abate the nuisance.⁷ Secondly, the court awarded approximately $260,000 in damages to the two plaintiffs and noted the prolonged inaction of the wind farm justified an award of aggravated damages.

Implications for you

This judgment indicates that the tort of nuisance may be established despite compliance with the standards required by planning permits. It also highlights the importance of investigating any complaints and considering them in the light of updated standards and regulations, as well as standards and regulations in operation.

Operators of commercial renewable energy enterprises such as wind farms should address seriously, and investigate any complaints which may give rise to a nuisance claim. In this case, the court was critical of inaction by the wind farm and its attitude to the noise complaints generally, and this justified the award of aggravated damages. The court specifically stated that the manner in which the wind farm had dealt with the plaintiffs’ reasonable and legitimate complaints of noise over many years, had at least doubled the impact of the loss of amenity each of them has suffered at their homes.

Uren v Bald Hills Wind Farm Pty Ltd [2022] VSC 145