‘Windjunction’ granted against wind farm causing noise nuisance to neighbours

13/04/2022

The Supreme Court of Victoria has recently ordered that the operators of Bald Hills Wind Farm (Bald Hills) be restrained from generating excessive noise in the operation of the wind farm and required them to take steps to reduce that noise. The operators were also required to pay the successful plaintiffs, Mr. Uren and Mr. Zakula, over $250,000 in damages including for the loss of amenity of their land, primarily due to the impact of the wind farm on their ability to get a good night’s sleep (Uren v Bald Hills Wind Farm Pty Ltd [2022] VSC 145).

The decision confirms that operators of clean energy infrastructure do not have an immunity from common law actions in nuisance just because they may meet the standards imposed in applicable planning and environmental approvals. This will require an important shift in the mindset of operators – and a review of the adequacy of systems and measures they have in place to deal with complaints – and any broader statutory general environmental duties.

In addition, Justice Richards observed that while wind farming contributed to the reduction of Australia’s reliance on fossil fuels and that it was a socially valuable activity, which is in the public interest, he also stated that, in effect, those social benefits should not be prioritised over existing social norms – such as allowing neighbours to have “a good night’s sleep”.

Whilst the decision was predicated on the Victorian planning regime under the Planning and Environment Act 1987 (Vic) (PEA) and the associated regulations and permit conditions, the central and broader issues of compliance with noise standards, the relevance of statutory regimes to private legal action, and relationship management, provide lessons for all Australian jurisdictions and the renewable energy proponents which operate therein.

Uren and Zakula v Bald Hills Wind Farm Pty Ltd: The decision

In February 2020, Mr. Uren and Mr. Zakula, each of whom lived on properties neighbouring Bald Hills, commenced proceedings against the operators of Bald Hills in the Supreme Court of Victoria, alleging it had committed the tort of nuisance by emitting excessive noise, disturbing their sleep and reducing the value of their properties. The plaintiffs sought an injunction to prevent the continued emission of the noise and an order for damages.

Richards J found that the noise emissions constituted nuisance, as they were a substantial and unreasonable interference with the plaintiffs’ right to use and enjoy their land.