What you need to know
This recent decision of the Victorian Supreme Court[1] shows that seasonal intermittent night time noise can be enough to create a nuisance. The decision provides the first judicial guidance on interpretation of acoustic standards and identifies a fundamental issue that the acoustic standard referred to in planning permits is not directed to intermittent noise. A consequence of this is that compliance with a planning permit noise condition is not determinative of whether noise is reasonable and not a nuisance.
In this case Bald Hills Wind Farm Pty Ltd (Bald Hills) did not demonstrate compliance with conditions of the permit. The Court held that the method for assessing compliance used by the Bald Hills’ acoustic expert in these proceedings was not the method prescribed by the Standard as the Court has now interpreted it.
The Court granted an injunction while acknowledging that Bald Hills should be able to continue to generate and sell electricity while also abating the nuisance. There was no evidence that abating the nuisance would result in lost jobs, interrupted electricity supply, disappointed investors or frustrated government policy. The injunction was granted in general rather than specific terms as time is required to find the solution. The Court allowed 3 months. Damages were also awarded to the plaintiffs totalling $260,000.
Our earlier article notes that since late 2021, new residences near approved wind farms need planning permission which provides an opportunity to mitigate noise impacts and avoid the scenario in this case. Further, wind farm noise is now regulated in Victoria by the EPA rather than councils, and the new Environment Protection Act (EP Act) provides residents with other remedies and may avoid the need for future nuisance cases.
The Nuisance Claim by two Residents
Since the Bald Hills Wind Farm commenced operations at Tarwin Lower in South Gippsland in 2015 it had been the subject of complaints from residents and landowners. Two residents sought remedies in a common law nuisance action. Mr Uren had lived in a nearby property from before the wind farm operated until 2018 and Mr Zakula had bought his land in 2008 but had not built a house until 2011.
Nuisance is established if a person interferes with another person’s use or enjoyment of their land in a way that is both substantial and unreasonable. Interference can take a number of forms, and it can include disturbing an occupier’s sleep. What is unreasonable involves considering a number of factors, including the nature and extent of harm, the social or public interest value in the defendant’s activity, any hypersensitivity of the user or use of the plaintiff’s land, the nature of established uses in the locality and whether all reasonable precautions were taken to minimise any interference.
The Court found that Bald Hills had in fact caused a substantial interference at night, particularly the ability of the residents to sleep undisturbed at night, and this amounted to a nuisance. The interference was intermittent. There was no substantial interference with the enjoyment of their properties during the daytime, though the Court noted the plaintiffs suffered annoyance during the day.
Damages and an Injunction in general terms to stop the nuisance ordered by the Court
Only one of the plaintiffs still resided in his property near the windfarm. The Court granted an injunction to abate the nuisance at this property at night. It is stayed for 3 months. Had the injunction not been granted, Mr Zakula would have been entitled to damages for the reduction in value of his property attributable to the nuisance, which would have been in the amount of $200,000.
The Court granted damages for the nuisance in the period where each plaintiff was living on the properties with the amount of $1,000 per month for past loss of amenity. The Court also found that Bald Hills’ conduct towards the plaintiffs was high handed and warranted an award of aggravated damages. A reasonable neighbour would have tried to reduce the noise and Bald Hills did not; rather, Bald Hills’ response to the various legitimate complaints raised by the plaintiffs was held to be strikingly disproportionate, and ultimately Bald Hills did not engage with the substance of the issues raised in the complaints but treated the residents as troublemakers. Treating the plaintiffs in this manner doubled the impact of the loss of amenity which resulted in a total of $92,000 to Mr Uren and $168,000 for Mr Zakula. However, the Court held no exemplary damages were to be awarded as it did not consider Bald Hills engaged in conscious wrongdoing or in contumelious disregard of the plaintiffs’ right to sleep peacefully. The Court acknowledged Bald Hills had sought advice from acoustic experts that the noise levels complied with the permit conditions and so Bald Hills did not need to be punished by any award of exemplary damages.
The Acoustic Issues at Bald Hill Wind Farm
Mr Zakula reported roaring sounds that were louder at night and louder in cooler conditions. The noise was variable and intermittent but could continue for several days and would disturb his sleep to the extent that he would drive to another location away from his property to sleep in his car. He also replaced a bedroom window with a solid bluestone wall in an attempt to reduce the wind turbine noise. The Court said this disturbance to sleep amounted to substantial interference to enjoyment of property.
Mr Uren also reported a roaring noise that was more often in cooler months. It also amounted to a substantial interference with his enjoyment of the property at night.
Compliance with the Planning Permit was not shown and even if it had been this does not determine whether there is a nuisance
The Minister for Planning (Minister) issued a planning permit in 2004 which allowed the use and development of land for ‘a wind energy facility for the generation and transmission of electricity from wind generators, together with associated buildings and works’ allowing 52 turbines, subject to conditions on acoustic amenity. Notably, the permit conditions relied on the noise limits and methodology in the New Zealand Standard 6808:1998 – Acoustics – The Assessment and Measurement of Sound from Wind Turbine Generators[2] (Standard).
Condition 19 of the permit provides that the operation of the wind farm must comply with the Standard. In determining compliance with the Standard:
- The sound level from the wind energy facility, when measured outdoors within 10m of a dwelling, should not exceed the background level (L95) by more than 5 dBA or a level of 40dBA[3] L95, whichever is the greater.
- When sound has a special audible characteristic, the measured sound level of the source shall have a 5 dB penalty applied
- Compliance at night must be separately assessed with regard to night time data. For sleep protection purposes, a breach of the standard set out in a 19(a), for 10% of the night, amounts to a breach of the condition.
Bald Hills did a range of acoustic measurement and reporting including, in some cases, peer review by an auditor and had implemented a curtailment strategy for some affected properties. It also relied on a letter from the Minister that he was satisfied that compliance was being demonstrated as at March 2019.
The Court however found that the Minister’s letter was only an expression of opinion and is not a decision with legal effect. It is the Court which decides whether the conditions of the permit were complied with, not the Minister.
The Court considered whether planning permit compliance was relevant to the nuisance claim, noting it was common ground that failure to comply with the noise conditions in the permit would support a conclusion that the wind turbine noise was both substantial and unreasonable. The question did not need to be considered because the Court found Bald Hills’ compliance with the permit could not be established. Nevertheless, the Court noted that demonstrating compliance with the Standard and the permit would not necessarily have established that the noise that from time to time disturbed the plaintiffs’ sleep was unreasonable. This is because the Standard is not directed to intermittent loud noise – it sets limits on noise increase over a longer period. It provides no means of determining whether a wind farm produces unreasonably annoying noise in certain weather or on a particular night.
Problems with the noise data
Specific criticisms of the Court were that:
- No background sound level measurements were taken at either house, and other locations were used instead.
- The background sound level measurements were taken during construction and it is possible that the construction activities at that time affected the sound levels.
- It was not clear if the background sound level was filtered (including for extraneous noise) and this had been done for the operational noise data.
- There was some uncertainty about the accuracy of wind speed data.
- Finally, some of the data was recorded when at least 50 of the 52 turbines were in operation, without noting which turbines were not operating. This led to a scenario where data gathered when individual turbines near Mr Zakula’s and Mr Uren’s houses was not operating would not fairly represent typical wind farm noise.
As such, the Court stated the findings of the noise report were unsound and do not demonstrate permit compliance at either of the plaintiff property.
Separate consideration was given to whether ‘special audible characteristics’ were present. (If they are found, the permit condition applies a 5dB penalty.) The Standard provides that sounds from a turbine that has clearly audible tones, impulses or modulation of sound levels, is likely to arouse adverse community response at lower levels that sound without such characteristics. The Court remarked that:
“The subjective reaction to a sound with a special audible characteristic is generally similar to the reaction to a sound that is 5 dB louder but without the characteristic. For that reason, the Standard applies a 5dB penalty when a sound has a special audible characteristic.”
The Court found that Bald Hills’ experts should have considered subjective listening tests at or near the plaintiffs’ homes at night time and in relevant weather conditions. There had been complaints of thumps and whooshing and the experts should have been prompted by those to listen for these characteristics. Since these things were not done, the Court could not be satisfied that condition 19(b) was properly applied in assessing compliance. It is worth noting that if a special audible characteristic occurs intermittently, the 5dB penalty should only be applied when it is present.
How the NZ Standard should be interpreted
This is the first time a Court has considered the interpretation of the Standard.
The Court said it should be strictly applied and experts should not depart from the precise and detailed method prescribed in the Standard. The Court noted that acoustic experts have, over more than 20 years, developed their own divergent interpretations of the Standard and ultimately the Court has needed in this case to decide upon the correct interpretation.
The Court’s key findings were that:
- The Standard explicitly requires the wind farm sound levels to be derived by subtracting the regression curve for background sound from the regression curve for post-installation measurements. This method must be used in order to demonstrate compliance with the permit condition.
- There were four different approaches to the test for sleep at night put forward be experts in the proceeding. The Court found that the proper approach is:
“The assessment period at night is from 10pm through to 7am the next morning. During this 9-hour period it is a requirement that the permitted night time sound level limit (from condition 19(a)) is not exceeded for more than 10% of the night time. Therefore, if wind farm noise levels exceed target night time noise limits for more than 0.9 hour between 10pm and 7am the next morning then that amounts to a breach of the Permitted noise limit described in 19(a).”
This appears to be the most contested area of the decision, with the Court giving it “anxious consideration.” The Court put weight on the “evident purpose” of condition 19(c), which is to protect the sleep of those who live near the wind farm.
Wind farms are socially valuable
The Court accepted without reservation that the wind farm provides a socially valuable activity and it is in the public interest for it to continue. However, the Court considered it should be possible to achieve both the generation of clean energy by the wind farm as well as a good night's sleep for its neighbours.
Were the plaintiffs hypersensitive?
The Court considered the history of opposition towards the wind farm in the local community, including direct involvement by Mr Zakula and Mr Uren in a protest against the wind farm. Nevertheless, the Court did not consider that the plaintiffs were hypersensitive to the wind farm noise.
What could have been done to avoid this?
While Bald Hills investigated and responded to numerous complaints made by Mr Zakula and Mr Uren, no remedial action was taken to reduce the noise received at either property. Some curtailment regimes were adopted in 2016 and 2017, but these were not taken in response to the plaintiffs’ complaints as they were directed to compliance at other locations.
Bald Hills could have reasonably implemented selective noise optimisation and addressed a known gearbox tonality issue (which had been identified as early as December 2016).
Regulatory changes in Victoria
The Victorian Government has had another round of consultation on the regulation of wind farm noise, which closed on 15 April 2022, to confirm which path to take with the interim regulations expiring in October 2022, see our previous article. It has proposed continuity, with the changes likely to involve the timing of various reporting requirements moving out by 6 months.
Conclusions
It is not yet known whether Bald Hills will appeal the Court’s decision, noting that Bald Hills has 42 days from the date of the decision (being 25 March 2022) to lodge an appeal.
Given recent legislative changes in Victoria, we may not see more nuisance proceedings in Victoria for these issues, as the EP Act deems that exceeding noise limits will be ‘unreasonable noise’. Residents could use the new civil remedies available under the EP Act to apply to the Court to restrain the actions or require corrective action. The Court may make a compensation order if it finds that the Authority or the eligible person has suffered or may suffer injury, loss or damage as a result of the contravention.
References
[1] Uren v Bald Hills Wind Farm Pty Ltd [2022] VSC 145
[2] This Standard was replaced in 2010 with the NZS 6806:2010, though we understand that the findings in this case will also apply to the interpretation of the 2010 Standard.
[3] We note that in most other jurisdictions in Australia, a 35 dBA noise limit is adopted.
