The Bald Hills wind farm in Victoria suffered a minor legal setback this week, after failing in its Supreme Court bid to quash two 2019 local council resolutions that agreed the 106MW project was causing a nuisance to some of its neighbours in Tarwin Lower.
The Judicial Review, sought by Bald Hills to challenge the South Gippsland Shire Council’s decision-making process, has been a sort of sideshow to the main event, in which 12 individuals from four properties will sue the wind farm in the Supreme Court, alleging health and financial damages from turbine noise.
A date has been set for that battle in September 2021. Meanwhile, the decision handed down by Justice Richards on Tuesday has no bearing, whatsoever, on that case and zero legal consequences for Bald Hills or its owners.
But that’s not the conclusion you might come to based on ABC News headlines on Thursday, which said: Bald Hills Wind Farm neighbours win historic legal battle against turbines ‘too close to homes’.
The report paints the findings of the judicial review as a major legal blow – not just to the Bald Hills wind farm, but to the broader industry – delivered by a group of long-suffering regional battlers.
It quotes the lawyer for the landowners in the “five-year legal saga,” Dominica Tannock, who said she hoped the case would encourage planning authorities to consider appropriate locations for wind farms in the future.
“Just because people are out in the country doesn’t mean that they should be sacrificed so people in the city can have their lights on at night time and their air conditioning running during summer,” Tannock said.
And it quotes one of the landowners, themselves, who painted the decision as a win for locals fighting to hold major corporations accountable.
“People think that these wind farms are out in the country, out in the middle of nowhere, and it’s not going to affect anyone,” said Bald Hills neighbour, John Zakula.
“But this is affecting us – previous wind farms that are already existing and also other wind farms that are in the planning stages here in South Gippsland.”
Undoubtedly, wind farm development in the Gippsland region has had its ups and downs. Just last week, a meteorological mast installed to measure wind conditions at the site of the proposed 200MW Delburn wind farm in the nearby Latrobe Valley was vandalised, causing it to collapse. Police are investigating.
Bald Hills, a project that got its first planning permit back in the dark ages of 2004, has faced a similar push-back. And now it is the subject of Australia’s first group legal action alleging a link between turbine noise and health impacts.
But the Supreme Court setback for Bald Hills this week is far from a victory to its opponents, and even further from any sort of proof that wind turbines can make people sick.
This was spelled out by Justice Richards in her decision, when she said she could not quash the council’s 2019 resolution declaring the wind farm a nuisance, because it “had no legal effect or consequence, and there is nothing that can be quashed.”
“The Council’s finding that a nuisance existed was the premise for its decision to do no more than advise the complainants of methods for settling the matter privately. Once it had done that, the effect of its finding — other than on Bald Hills’ reputation — was spent,” she said.
It’s also no victory for the wind farm’s opponents – that battle is still ahead, and proving damages from wind turbine noise will be a much tougher job according to common law than it was according to the Public Health and Wellbeing Act.
As Bald Hills Wind Farm said in a statement on Wednesday, while it is disappointed with the outcome, “neither the Council’s resolutions nor the Court’s decisions opined on the wind farm’s compliance with its Planning Permit or whether or not the wind farm’s operations constituted a nuisance at common law.”
The Council investigation – commissioned at a cost of $33,600 and conducted by food safety expert James Smith – found that there was “a nuisance caused by wind farm noise, in that, the noise is audible frequently within individual residences and this noise is adversely impacting on the personal comfort and wellbeing of individuals.”
As noted by the legal news site Lexology earlier this year, in reaching its own finding, “the Council attributed weight to noise logs, and evidence of health impacts provided by the complainants,” while setting aside the fact that Bald Hills had complied with the noise conditions of the planning permit for the wind farm.
Lexology also noted that the Council-commissioned report featured a problematic lack of “directly comparable data correlating timing, location and nature of noise emissions between the formal noise compliance monitoring and the noise complaints presented.”
What the Supreme Court Judiciary Review ruled on Tuesday was that the council had sought independent advice and weighed the evidence presented to it to the best of its ability and in accordance with due process.
The decision says nothing about the merit of the council’s resolutions, just that it got round to making them in an appropriate manner. The ruling also seems to acknowledge, quite rightly, that local governments such as the South Gippsland Shire Council are not equipped to handle matters of such complexity.
As the Bald Hills statement puts it, “noise compliance is determined by the state government of Victoria in accordance with the wind farm’s Planning Permit, which stipulates industry-accepted acoustic standards to which the wind farm must adhere.
“The Planning Permit conditions are based on a standard that establishes best practice in Australia for protecting against sleep disturbance and amenity impacts. Following extensive monitoring and analysis, the Victorian Minister for Planning confirmed the wind farm’s compliance with the Planning Permit as recently as in March 2019.”
Andrew Bray, the national coordinator of the Australian Wind Alliance, told RenewEconomy that the only thing this “futile” round of court proceedings had achieved was to demonstrate the conflict in wind farm regulation in Victoria, and the urgent need for this to be fixed.
“By confirming that Council had the power to make a finding of nuisance under the Public Health and Wellbeing Act while a wind farm is compliant under the Planning Act, the Supreme Court simply confirmed that the two Acts are in fundamental disagreement,” Bray said.
“South Gippsland Council did not have the resources to commission a report that could properly investigate whether there was a causal link between residents’ complaints and wind farm operations. Instead the Smith Report they commissioned relied on anecdotal reports and has done nothing to resolve the issue.
“We would urge the state government to bring forward the new General Environmental Duty framework as quickly as possible to allow the EPA to conduct ongoing monitoring of wind farm noise and ensure that residents remain safe.
“This new framework, while it has understandably been delayed by the COVID pandemic, has been a long time in coming but it is still sorely needed to avoid futile exercises such as this,” Bray said.
For now, however, it’s a matter for the courts – and not for the court of public or media opinion.