Are wind farms a nuisance? – Civil right
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The Supreme Court of Victoria is currently hearing a case which will determine whether noise from the Bald Hills wind farm in south-east Victoria constitutes a common law nuisance.
In 2020, wind power generated over 12% of Victoria’s electricity. To achieve Victoria’s net zero target by 2050 (as required by the Climate Change (Vic) Act 2017), modeling shows that wind generation will need to account for around 36% of Victoria’s energy mix over the long term. term. The Government of Victoria is in the process of developing other renewable energy zones (ZER), and developers are currently bidding for future projects in the second Victorian Government Renewable Energy Auction (VRET2) regime.
Against this development push, the Bald Hills Wind Farm shutdown has the potential to have widespread impacts on the viability and decarbonisation of wind farms across Australia, as wind farms that comply with planning laws and standards relevant noise sources could be responsible for noise that causes “unreasonable interference” with the use and enjoyment of neighboring lands.
Are common law nuisances likely to be observed?
The Bald Hills Wind Farm, located in Gippsland, Victoria, has been fully operational since May 2015 and generates 4.3% of Victoria’s annual renewable energy production. The original permit was granted in 2004 and contained noise-related permit conditions, including compliance with New Zealand wind farm noise standards.
In 2016, local residents reported various health effects of noise, such as sleep deprivation and associated headaches, and are now asking the Supreme Court of Victoria to determine whether the interference constitutes a common law nuisance. . To be successful, wind farm noise must be both “substantial” and “unreasonable” interference.
Substantial interference is based on the specific facts of the case and what an ordinary resident of the local area might reasonably expect. In the Bald Hills Wind Farm case, local residents argued that the noise transmitted by the wind farm has adverse health effects, such as headaches and sleep disturbances. A review of the literature on the health effects of wind farms found “there is no evidence of health effects caused by wind turbines in people living near wind turbines, other than annoyance and self-reported sleep disorders”. The review also noted that wind turbine noise can be compared to road, rail and aircraft noise.
In Walter versus Selfe (1851) G&SM 315, a nuisance was considered to be any act “…interfering with the ordinary bodily comforts of human existence…according to clear and sober notions among the people of England.” Earlier inquiries by the local council found noise from the Bald Hills wind farm to be ‘offensive’ or detrimental to personal comfort, constituting a legal nuisance under section 62 of the Public Health Act 2008 and well-being. If substantial interference is established, there is a prima facie case of common law nuisance. Bald Hills Wind Farm will then have to demonstrate that the nuisance is reasonable.
Southern Properties (WA) Pty Ltd v The Executive Director of the Department of Conservation and Land Management  WASCA 79, it was noted that reasonableness could be demonstrated by considering whether all reasonable precautions to avoid the interference are taken or whether its social utility justifies the interference.
In Rose vs. Chaikin 187 NJ Super 210 (1982) (Rose vs. Chaikin), a New Jersey court found that constant noise from a nearby wind farm substantially and unreasonably interfered with reading, sleeping, and television viewing, and granted an injunction to permanently shut down the wind farm. The court’s decision to find a nuisance was due to non-compliance with town planning laws and local noise regulations. For Bald Hills Wind Farm, the operator can claim compliance with New Zealand noise standards and planning permit conditions when they demonstrate that the noise emissions are reasonable under the circumstances.
In Rose vs. Chaikin, the Court ruled that the social utility of a wind farm was outweighed by the harm caused to local residents. However, since Pink was decided in the 1980s, the calculation of the social utility of wind farms has undoubtedly changed a lot in favor of wind farm operators. For example, in New South Wales, “renewable energy districts” have been created to declare large wind farms as “critical infrastructure”. Bald Hills Wind Farm, as a utility-sized generator, has great social utility in meeting the renewable energy needs of the community.
In the context of the recent IPCC AR6 report and its call for decarbonization, the great social utility of Bald Hills Wind Farm would support the argument that noise interference is reasonable.
Implications for other wind farms and renewable energy goals
When it comes to wind farm nuisance claims in other jurisdictions, the results have been mixed, with failure to meet planning and noise standards being a common thread in successful nuisance claims. With Victoria’s first private nuisance claim before the Supreme Court, there is a difficult decision to be made in balancing private rights to use and enjoy land against the social utility of renewable energy.
If a nuisance is established in the Bald Hills Wind Farm case, wind farm projects will be subject to continued risks of litigation and uncertainty even after demonstrating compliance with all planning laws and noise standards.
With wind farms playing an important role in enabling Victoria to meet its emission and production reduction targets, reducing barriers to renewable energy investment may outweigh noise interference for a small number of residents local.
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