In the Victorian Supreme Court a judge has just ordered that the Bald Hills Wind farm must turn off at night time. After seven years of pain and suffering, two households living nearby will finally get night time relief and some payments of $92,000 and $168,000.
“The wind farm noise has been a common law nuisance at both properties.”
This could change everything. These industrial plants close to homes just became even less profitable because they can’t operate at night. They also need to pay damages to people affected by the noise, and do more maintenance to reduce noise — like repairing gear boxes more often, and they may have to pay to make changes at homes nearby to ameliorate the nuisance, or pay compensation. Many properties near the towers have abandoned plans to build new houses there.
What stands out in this ruling is how entirely inadequate were any of the attempts by the government that approved the wind plants, or the companies that profited from them, to measure and assess the noise, and to respond to complaints. Despite tens of thousands of windfarms being built, the science of acoustic disturbance from them is practically a vacuum. If the companies that built these machines were at all considerate environmental players they would have many measurements, plus publicly available data. They’d know the effect of different wind speeds and directions, plus temperatures and humidity. For their own sake, they would identify the worst conditions, and shut particular turbines off preemptively so to avoid cases exactly like this (and just to show they were good global citizens).
Witness statements include intermittent effects so bad that people take painkillers, install double glazing, and even sleep in their cars elsewhere in desperation. Even during the day sometimes watching TV or talking becomes so difficult that one witness sends text messages to have a conversation.
No one even mentions here — if this noise is sometimes so appalling for the humans around these towers, what’s it like for the animals?
In a world-first, neighbours tormented by wind turbine noise have won a landmark victory, forcing the operator to shut down all of its turbines at night-time.
Yesterday, Justice Melinda Richards of the Victorian Supreme Court slapped an injunction on a wind farm because the noise it generates has been driving neighbours nuts for seven years, and the operator has done absolutely nothing about their suffering.
Her Honour also ordered damages, including aggravated damages for the high-handed way in which the operator has treated its victims. Since March 2015, the community surrounding the Bald Hills wind farm have been tortured by low-frequency noise and infrasound generated by 52, 2 Megawatt Senvion MM92s.
After a bruising piece of litigation (where the operator withheld critical evidence from the plaintiffs and its acoustic consultant was caught out ‘filtering’ – ie destroying – rafts of noise data) and a hard-fought trial, these thoroughly courageous gentlemen have established what has been known, all along: everyone has a legally enforceable right to sleep soundly at night in their very own homes; and the wind industry has been destroying that right with impunity, for far too long.
What Noel Uren and John Zakula have achieved is not just notable and noble, it reflects the adage about evil prevailing when good men do nothing.
Refusing to be [cowed] by the operator’s threats, bullying and intimidation, these men did something and, accordingly, every wind industry victim owes them a debt of eternal gratitude for what they have achieved and placed on the public record. At last. At long last. Vindication. Sweet vindication.
(23) What is the proper measure of each plaintiff’s loss and damage, having regard to the answers to questions 15 to 22 above?
Mr Uren will be awarded damages in the amount of $92,000, comprising $46,000 for past loss of amenity, and $46,000 for aggravated damages. Mr Zakula will be awarded damages of $168,000, comprising $84,000 for past loss of amenity, and $84,000 for aggravated damages.
I find that noise from the turbines on the wind farm has woken Mr Zakula or kept him awake on hundreds of occasions since June 2015. There were nights when he was unable to sleep at all. There were others when he left home and slept in his car at Walkerville beach to escape the noise. On any view, this amounts to a substantial interference with Mr Zakula’s enjoyment of his property at night — specifically, his ability to sleep undisturbed in his own bed in his own house on his own rural property. The interference is intermittent, but ongoing. While Mr Zakula is annoyed by the sound of the turbines during the day, it does not substantially interfere with his enjoyment of his property.
[following consideration of the evidence given by Noel Uren, her Honour held]:
I find that wind turbine noise disturbed Mr Uren’s sleep, waking him or keeping him awake, or both, on around 100 occasions between May 2015 and December 2018.
UPDATE: The final injunction is that Bald Hill Operators have just 90 days to figure out how to abate the noise that keeps the plantiffs awake. Perhaps there will be some combination of certain weather events and particular turbines that allow the wind farm to partially operate at night. But the judge admits “no one knows” what that is, which is really quite the crime. If the management can’t find a partial conditional way to operate they will just have to shut the turbines at night. They’ve had years to figure something out, and clearly have done nothing, so it will be a scramble now.
It’s dodgy science from beginning to end
The wind farm operator claimed that they measured the background noise before and after construction of the wind farm. However they found the noise levels were improbably lower after the wind turbines were operating.
“It is possible that the sound levels recorded were affected by construction activities, including heavy vehicles on Buffalo-Waratah Road.”
[The more likely cause is that MDA did what it always does: it placed its noise loggers close to large trees and/or under bushes during pre-construction noise data gathering (thereby raising the average noise levels at all wind speeds) and, when it returned to gather operational noise data, it placed its noise loggers well away from trees, bushes and other solid objects (thereby lowering average noise levels at all wind speeds, even with the contribution from wind turbines, if, indeed, any of them were, in fact, operating at the time). It’s the oldest trick in the book and it’s been used by MDA and others for years, all over Australia. The other clever trick played by the operator, in this case, was withholding the raw data from the plaintiffs’ acoustic experts, Dr Bob Thorne and Les Huson. Whereas, they were happy to provide the raw data to their own boy, Chris Turnbull, the plaintiffs’ acoustic experts were deliberately deprived of the opportunity to assess and review that data. Her Honour was scathing about that conduct]
The MDA wouldn’t provide the data (even under discovery of documents) and wouldn’t explain the “filtering” they used on the data. The plantiffs were “stunned” to find that the data they had requested did exist and was now being used against them:
Dr Thorne and Mr Huson both said that they did not know how MDA had filtered its background data, because they had never seen MDA’s datasets. Mr Turnbull volunteered that he had asked for and analysed the raw background data for locations 19, 61 and 66, and had satisfied himself that they had applied the same filtering to both pre-construction and operational data. Dr Thorne was ‘stunned’ to learn that this raw data had been given to Mr Turnbull, when he had asked for the same information 18 months previously and it had never been provided. The raw background data was apparently not discovered by Bald Hills, or produced by MDA in answer to a subpoena served on it in May 2020.
The judge described this as “unsatisfactory” and would not accept Mr Turnbulls opinion, given that the plantiffs had not has access to the data.
Many witnesses describe the effects of wind turbine noise:
Mr Jelbart said that his experience is ‘much worse’ inside his home than outside, and is particularly bad at night. Sometimes, the turbines are louder than his television, even after he has turned the volume up. He often wears earplugs to bed, however he is still woken up during the night. He attributes this sleep disturbance — which he said he has experienced for about the last six years — to the noise from the wind turbines. He sometimes wakes up with a headache. In an attempt to block out some of the noise, he has moved to a room in the back of his house, and has planted some trees.
According to Mr Jelbart, the noise at Tenement A is ‘horrific during the day’. He said that if he has to spend a couple of hours there, he will either put in earplugs or leave the property altogether. He described the noise at Tenement A as a ‘pulsing throb’, sometimes with a ‘whoosh’, and often with a ‘gearbox noise’, a ‘grinding sort of mechanical noise’, which signals that there is a gearbox in need of attention. The noise varies depending on where he is on the property and which way the wind is blowing. Mr Jelbart said that although he can always hear the noise when the wind is blowing, it is particularly bad when the breeze is gentle and when the wind is coming from the south or the south-west. He said that the noise seems to be worse in the winter months.
Mrs Jelbart said that when she is at home at night, when the wind has died down, the sounds from the wind farm can be very audible — ‘it can be a thumping, a groaning, a whirring, a grinding; you can get all of these sounds in five minutes and then it’s just on repeat, on repeat, on repeat’. She described the noise as having ‘a deep undertone to it which really sort of — it sort of gets in your head. It just vibrates through you.’ Like Mr Jelbart, she can hear the turbines over the sound of their television, even if the volume is turned up high. The noise wakes her up regularly during the night and in the early hours of the morning. When she wakes up, she often has a headache. Because she experiences so much tension, she has taken to wearing a mouthguard to bed to protect her teeth.
Dorothy Fairbrother and her husband Don live and work on their farming property on Buffalo-Waratah Road, Tarwin Lower. The property is located between Mr Zakula’s house and where Mr Uren used to live. Mrs Fairbrother described the sound from the wind turbines as ‘a swishing, throbbing noise that just didn’t disappear’. She said that the noise is more prominent in the evening. It can be heard over the television at times, and so she turns up the volume of the television to camouflage the noise. She described the noise as being similar to ‘dripping tap syndrome’ that keeps ‘going and going and going’ at night time, and interrupts her sleep. She does not hear the noise every night. It is worst when the wind is blowing from the north-west, which occurs more in autumn and winter. During bad periods, which can last up to three weeks, her sleep is interrupted every night.
Mrs Fairbrother suffers from ‘bad headaches’ due to the noise of the turbines at night, for which she takes paracetamol and stronger medication when required. She does not take anything to help her to get to sleep – she tries to ‘just suffer it out’. She and Mr Fairbrother tried to alleviate the noise by double glazing the windows in their house, but that did not help a lot.
Don Fairbrother: …would wake up in the early morning with a really severe headache, and when he put his hearing aid in, he realised what was going on. When he woke at night with a headache he would take Panadol, but would always have trouble getting back to sleep. Even with his hearing aid out he was tossing and turning, having broken sleep, sensing the noise. Mr Fairbrother said that the noise is less audible in the summer period, and not the problem that it is in the wintertime.
Stuart Kilsby’s family lived on their farm in Tarwin Lower until they moved away in 2012 or 2013. Mr Kilsby’s father did not think they would be able to stay on the farm once the wind farm started operating due to the ‘noise issue’. Before then, Mr Kilsby had planned to build a house on the property, and had picked out a site overlooking the whole farm, with views of Bass Strait, the Inverloch inlet and Wilsons Promontory. He no longer plans to build that house.
After the turbines started spinning, Mr Kilsby’s father could not handle the noise and left the farming to his son. Mr Kilsby felt anxious to come and work at the farm, knowing that he would be hearing the noise all day. At the farm, he struggled to concentrate. He had difficulty getting the noise out of his head, even after leaving the farm. Sometimes, he had to leave the farm when the noise became really bad. He used to take his wife and young children to the farm for camping or picnics, but he no longer does this because he is concerned about the noise from the turbines.
Robert Soler … described the louder sounds as being like, ‘when you are beside a road busy of cars, you know, traffic or a river, something like that.’ He said that, when the sound is loud, he will often have trouble hearing what other people are saying, and will have to raise his voice, call the person or send them a text message. He said that the noise is worse when the wind is blowing from the east. The noise gets in his head and is constant; he gets ‘tired with that because it’s all the time the same noise’.
h/t to Paul Miskelly