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Supreme Court upholds Council decision; Bald Hills wind farm loses its appeal

Dr Smith’s conclusion was: It is clear from the investigation that noise from the wind farm is audible within residences although there are noise monitoring reports stating that there is compliance by the wind farm with permit conditions and the New Zealand Standard 1998, and with a noise mitigation strategy in place at the wind farm. The noise was clearly audible in Mr Zakula’s dwelling at night time twice and in the Jelbart residence at night time twice and this is held to be unreasonable in both cases. 

On 27 March 2019, the Council passed a resolution, in which it recorded its satisfaction that there existed a nuisance of the kind alleged by the complainants, but that the nuisance existed only intermittently. The March Resolution recorded the Council’s opinion, under s 62(3)(b) of the Wellbeing Act, that the matter was better settled privately, and identified several methods available for doing so.

[The court decision can be accessed here]

The Short History.

Bald Hills Wind Farm Pty Ltd owns and operates a wind farm in Tarwin Lower, Victoria, within the municipality of South Gippsland. The 52-turbine wind farm has been operating since 2015. During 2016, a number of people who lived nearby complained to the South Gippsland Shire Council, under s 62 of the Public Health and Wellbeing Act 2008 (Vic), about noise from the wind farm. These people included John Zakula, Noel Uren, Don Jelbart, Sally Jelbart, and Don Fairbrother, (the complainants).

On 27 March 2019, the Council passed a resolution, in which it recorded its satisfaction that there existed a nuisance of the kind alleged by the complainants, but that the nuisance existed only... more [truncated due to possible copyright]  

On 27 March 2019, the Council passed a resolution, in which it recorded its satisfaction that there existed a nuisance of the kind alleged by the complainants, but that the nuisance existed only intermittently. The March Resolution recorded the Council’s opinion, under s 62(3)(b) of the Wellbeing Act, that the matter was better settled privately, and identified several methods available for doing so.

[The court decision can be accessed here]

The Short History.

Bald Hills Wind Farm Pty Ltd owns and operates a wind farm in Tarwin Lower, Victoria, within the municipality of South Gippsland. The 52-turbine wind farm has been operating since 2015. During 2016, a number of people who lived nearby complained to the South Gippsland Shire Council, under s 62 of the Public Health and Wellbeing Act 2008 (Vic), about noise from the wind farm. These people included John Zakula, Noel Uren, Don Jelbart, Sally Jelbart, and Don Fairbrother, (the complainants). 

On 27 March 2019, the Council passed a resolution, in which it recorded its satisfaction that there existed a nuisance of the kind alleged by the complainants, but that the nuisance existed only intermittently. The March Resolution recorded the Council’s opinion, under s 62(3)(b) of the Wellbeing Act, that the matter was better settled privately, and identified several methods available for doing so.
Bald Hills sought judicial review of the Council’s decision to pass the March Resolution on the grounds that the decision was affected by jurisdictional error. It sought an order in the nature of certiorari quashing the decision, or alternatively a declaration that the March Resolution is invalid and of no force or effect. The proceeding was defended by the Council, the first defendant, and the complainants, who are the second to sixth defendants. All of the defendants contended that the March Resolution was valid, and that no relief should be granted. 

The issues for determination, and a summary of the Court’s conclusions in relation to each issue, are as follows: 

THE DECISION OF THE SUPREME COURT-The Proceeding Is Dismissed

(1) Is Bald Hills able to seek judicial review remedies in relation to the March Resolution? Yes. Bald Hills has a special interest in the subject matter of the March Resolution, beyond the interest held by the public at large.

(2) Can the March Resolution be quashed? No. The March Resolution is not able to be quashed, because it had no legal effect or consequence and there is nothing that can be quashed. 

(3) Did the Council fail to have regard to mandatory considerations when it passed the March Resolution? No. 

(4) Did the Council fail to perform its statutory task under s 62(3) of the Wellbeing Act? No. In order to perform its statutory function under s 62(3), in determining whether a nuisance existed the Council was obliged to, and did, consider the acoustic material relied on by Bald Hills. 

(5) Should declaratory relief be granted? Bald Hills has not established that the March Resolution was affected by jurisdictional error. There is no basis to make the declaration it seeks, and the proceeding must be dismissed.

SOME OF THE REASONS FOR THE SUPREME COURT DECISION GIVEN BY THE COURT

(1) On 28 February 2018, the Council endorsed a Bald Hills Wind Farm noise complaint investigation plan. An investigation was conducted by James C Smith & Associates, who provided a report to the Council in September 2018.

Dr Smith’s conclusion was: It is clear from the investigation that noise from the wind farm is audible within residences although there are noise monitoring reports stating that there is compliance by the wind farm with permit conditions and the New Zealand Standard 1998, and with a noise mitigation strategy in place at the wind farm. The noise was clearly audible in Mr Zakula’s dwelling at night time twice and in the Jelbart residence at night time twice and this is held to be unreasonable in both cases. The experience at the Jelbart residence on 24th and 25th July 2018 whereby wind farm noise intruded on conversation within the residence at night time is seen to be detrimental to personal comfort and the enjoyment of the residential environment by Mr and Mrs Jelbart. After consideration of the completed noise logs by individual complainants and subsequent discussions with some of these individuals it appears there is 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

(2) The Council performed its duty under s 60 by investigating the complainants’ notification and, on finding that a nuisance existed, deciding that the best course of action was to advise the complainants of several available methods for settling the matter privately. The finding that a nuisance existed was the premise for the Council’s decision under s 62(3)(b). Once that decision was taken, and the advice provided, the finding had no further significance and its effect was spent.

(3) Bald Hills’ contention that the Council failed to have regard to mandatory considerations has failed.

(4) The real problem for Bald Hills was that it did not provide the Council with evidence that it had taken any precautions to avoid or minimise the turbine noise that disturbed the complainants in their homes. The abundant material provided by Bald Hills to demonstrate that it was compliant with the planning permit simply did not engage with the alleged nuisance notified by the complainants. While the curtailment strategies implemented by Bald Hills in December 2016 and May 2017 showed that it could take measures to abate noise levels at a given location, it had not implemented those strategies in respect of any of the complainants’ properties.

(5) However, on the question of reasonableness, Bald Hills made no submission to the Council about the social and public utility of its operation. On judicial review, the Council’s finding of nuisance must be considered in light of the submissions that were made to it, and ‘not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process. It was not open to Bald Hills to contend that the Council’s finding involved jurisdictional error because it did not take into account a matter that was not put to it in the otherwise comprehensive submissions made on Bald Hills’ behalf.

(6) Further, it was difficult to discern exactly what it was that Bald Hills said the Council should have taken into account, or how it could have been material to the Council’s finding of nuisance. It did not appear to contend that the noise that from time to time disturbed the complainants’ sleep was necessary in order for it to continue generating electricity.

(7) There was no evidence that Bald Hills made any submission to the Council that noise from the wind farm was reasonable because of the suitability of its location. Once again, the Council’s finding that a nuisance existed must be considered in light of the submissions that were made to it. There was no jurisdictional error in not considering a submission that was not made.

(8) The Council did not fail to have regard to mandatory considerations. The Court did not accept that the Council disregarded the acoustic material in making its finding of nuisance. The Court was  satisfied that the Council took it into account on the question of reasonableness

(9) Bald Hills did not establish that the Council disregarded relevant material that was essential to the performance of its statutory function.

The Court has asked all parties to submit with regard to costs being awarded.

Dominica Tannock of DST Legal, the lawyer for the aggrieved landowners from South Gippsland stated today that the ruling by the Supreme Court was an emphatic vindication of the decision by the council and a substantial decision for the landowners and the operation of the facility.

Ms Tannock said the operators of the Wind Farm not only lost their challenge of the council’s decision but were also likely to be liable for the considerable legal costs associated with the proceedings. Further legal action on behalf of the landowners is ongoing in the Supreme Court and is likely to take until Sept 2021 to resolve.


Source: https://southgippslandvoice...

AUG 27 2020
http://www.windaction.org/posts/51617-supreme-court-upholds-council-decision-bald-hills-wind-farm-loses-its-appeal
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