Court rules Bald Hill Wind Farm turbines too noisy

The unprecedented ruling was made on Friday by Justice Melinda Richards, in the Victorian Supreme Court, who found the noise emitted from the Bald Hills Wind Farm at Tarwin Lower created a nuisance to nearby properties and ordered an injunction that will require the operators Infrastructure Capital Group to "take necessary measures" to abate the noise at night.

Justice Richards ordered aggravated damages against Bald Hills Wind Farm totaling $92,000 for former neighbour of the wind farm, Noel Uren, and $168,000 for John Zakula, for causing a noise nuisance while failing to demonstrate that they were operating the wind farm within its planning conditions, and for failing to take action to reduce the turbines noise.

The two neighbouring landowners took civil action against ICG seeking damages for health impacts they said had been caused by the noise from the turbines since it started operating in May 2015.

The injunction comes into effect on June 25, 2022, three months from the date of the court decision.

If ICG are unable to fix the noise problem within three months, the turbines near Mr Zakula's house will be shut permanently at night.

In her judgment, Justice Richards said it was in the public interest for renewable energy to continue, however, there was "not a binary choice to be made between the generation of clean energy by the wind farm, and a good night's sleep for its neighbours".

"It should be possible to achieve both," she said.

Justice Richards said noise from the 52 wind turbines, at the 106.6MW wind farm, had substantially interfered with Mr Uren and Mr Zakula's enjoyment of their land, particularly their ability to sleep at night.

University of Melbourne senior law lecturer Brad Jessup said it was "very rare" for a judge to double the damages payments, which suggested the operator of Bald Hills was "acting unreasonably in the face of complaints".

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"I can't imagine the industry all operate in this way. If they do... then the industry will need to lift its game," Dr Jessup said.

"The industry will need to make sure it is adopting best practice noise mitigation strategies.

"... The landholders argued, regardless of permit compliance, the wind farm operator is creating a nuisance, an infringement of a property right, and the law of nuisance requires those who emit noise (among other things) not to create an unreasonable interference or prove that they cannot further mitigate their interference. The wind farm operator failed to do either."

Currently, councils typically manage complaints relating to conditions in a wind farm's permit.

But Dr Jessup said local councils were not the right fit to deal with noise complaints from infrastructure.

"The Environment Protection Authority should be doing so but it is an extraordinarily stretched agency. So, our system depends on individuals enforcing the law," he said.

At least 14 of Victoria's 34 wind farms have been built since 2015, with a further 22 under construction or awaiting approval, as the state government focuses on ambitious emission reduction targets.

But some projects had "great community opposition", which Dr Jessup said was mainly due to controversial locations.

A court challenge against a 26-turbine wind farm by 25 residents from Hawkesdale, in south-west Victoria, was unsuccessful in August, while another farmer's attempt to scrap a $2 billion wind farm planned for the Golden Plains also failed in December.

He said while the state's uptake of renewable energy projects was slow compared to South Australia, California and Europe, Victoria had experienced regular controversy.

"Bald Hills was controversial, so was Portland. Waubra was a lightning rod for wider opposition because of the proximity of turbines to homes," he said.

"I do think the government needed to be better involved early on to build community support for wind energy in place than it was, rather than - as it has - stoked community concern and opposition."