Supreme Court finds Councils have the power to make flimsy nuisance claims of no legal consequence if they want
A Supreme Court ruling on a wind farm case this week led with some major superlatives. Under the headline, ‘historic legal battle’ the piece outlined how the Supreme Court struck down a challenge to a declaration from the since-sacked South Gippsland Council that the Bald Hills Wind Farm had caused a nuisance to a group of neighbours.
Despite the theatrics, the reality was far less dramatic.
In its judgement, the Supreme Court simply confirmed that Council had the power to make a finding of nuisance under the Victorian Public Health and Wellbeing Act if it ticked a particular set of boxes. This is what South Gippsland Council did in March and April 2019, instructing the Bald Hills Wind Farm and local complainants to sit down and work out their differences. They didn’t (and couldn’t) find that the wind farm was operating illegally, they didn’t order any payments be made to complainants or issue any directives to stop running turbines in any way. In court-speak, the Council’s finding was correct but of no legal consequence.
On a legislative level, the main problem is that there are inconsistencies between the Public Health and Wellbeing Act 2008, under which Council’s decision was made, and the Planning and Environment Act 1987, which regulates and enforces noise from wind farms. This was pointed out in 2018 by the MAV, who said these inconsistencies "create issues surrounding wind farm investigation and enforcement and is a matter worthy of consideration at the MAV State Council Meeting for further advocacy....This is inefficient and impacts on residents, wind farm owners and is a large resource burden on local councils and their communities." This is a position that the National Wind Farm Commissioner agrees with.
Councils are not the right body to be an ascertaining nuisance for wind farms. While Bald Hills Wind Farm must comply with tight and scientifically rigorous noise limits, South Gippsland Council had to invest $33,000 of its limited resources to respond to the complaint under Public Health and Wellbeing. It commissioned a cursory report by someone with no qualifications in acoustics based on subjective data that made no attempt to establish a causal relationship between the neighbours’ complaints and the wind farm operations. We expressed our concerns about it back in March 2018. As such, Council could only go back to the wind farm and complainants and request they keep talking so not a lot was achieved.
Underlying this tortuous process, of course, is the issue of reconciling neighbours’ complaints with noise from the wind farms themselves. This has been tested in court on a number of occasions and each time wind farms operating under state planning regimes have been found to be safe and subjective data unreliable. One example was the Full Court of the South Australian Supreme Court:
In addressing the use of anecdotal evidence more generally, the Full Court quoted extensively from the expert statement of Professor Gary Wittert, who had been called by Tilt Renewables to give evidence during the ERD Court hearing regarding alleged health impacts of wind farms. This evidence included the various difficulties associated with reliance on anecdotes, which can be affected by cognitive bias, subjective validation, misinterpretation and misuse to draw causal links where none exists.
The recent Victorian Supreme Court decision had "no legal effect or consequence". In fact the complainants (neighbours) argued exactly that in the Court, and the Court itself agreed, stating:
The complainants submitted that Bald Hills does not have standing to seek judicial review of the March resolution [which they did on grounds of damage to reputation]. They argued that the March Resolution was no more than a non-binding finding of nuisance by the Council, about which the Council decided to take no action, and which had no real effect on Bald Hills’ legal rights.
The Victorian government is currently preparing legislation to resolve these legislative inconsistencies, managing an noise-emitting industrial process with a ‘general environmental duty’ regime. The legislation has been a long time in the making and while it’s completion has been delayed by the COVID pandemic, AWA is certainly keen to see it introduced as soon as possible. This case shows that it is sorely needed to provide clarity to wind farm neighbours, councils and wind farm operators alike.