Further on noise, nuisance, compliance and letters of comfort

Operation of wind farms and other major projects.

The decision in Noel Uren and John Zakula v Bald Hills Wind Farm Pty Ltd [2022] VSC 145 confirms that compliance with the conditions of an approval does not necessarily mean that a project proponent cannot be successfully sued for a substantial and unreasonable interference with a person’s property. In this case, two landowners successfully brought nuisance proceedings against an operating windfarm. The successful element of their claim being a noise complaint of unreasonable night-time interference.

This decision is important as it considers four key principles of project operations. Whilst the Uren decision relates to a wind farm, the principles will apply to all projects, particularly those with emission limits with respect to noise, dust, odour, blast and other emissions.

Principle 1

Nuisance

Projects can commit a nuisance and may be liable to third parties for damages notwithstanding they are in compliance with their approvals. In Uren the Wind Farm argued that compliance with the noise conditions of the permit would be bar to a nuisance claim. The test for nuisance is, in summary ‘a person commits a private nuisance if that person interferes with another person’s use or enjoyment of their land in a way that is both substantial and unreasonable’. In Uren, the Wind Farm was not able to prove compliance with their permit conditions with respect to noise. The argument was that compliance with noise conditions would mean that any interference would essentially be reasonable. On that, the Court held that compliance with the relevant permit conditions would provide ‘no means of determining whether a wind farm produces unreasonably annoying noise in certain weather conditions or on a particular night’.

Principle 2

Letters of comfort

A letter of comfort from a regulator or a Minister is simply that - for comfort only. It will not operate as a bar or a defence to claims or prosecution. In Uren, the Court was provided with a letter from the Minister that expressed a qualified view that the Minister was satisfied that the Wind Farm was in compliance with its noise conditions. The Court held that the Minister was not the arbiter of whether the Wind Farm was in compliance. Compliance with the noise conditions were determined by the evidence in the proceedings.

Principle 3

Expert reports

Care must be taken to ensure that experts understand and correctly interpret conditions of consents when preparing, undertaking or monitoring reports. Uren contained a volume of expert evidence relating to noise. One of the issues considered by the Court was how noise emissions were to be measured under New Zealand Standard 6808:1998 Acoustics - The Assessment and Measurement of Sound from Wind Turbine Generators. In this case, the Court did not agree with the expert’s interpretation of the appropriate methodology. This decision is a reminder that for contentious projects, having an experts report ‘unpacked’ by peer or legal review can be an important step in ensuring a project can withstand compliance scrutiny by a Court.

Principle 4 

Interpreting conditions of approvals

The decision considered competing interpretations of the noise condition applicable to night- time. Three interpretations from three experts were considered. After ‘anxious consideration of the arguments’ the Court favoured the interpretation that it considered was easy to understand and apply and provided ‘a simple means of investigating a complaint about wind farm noise’. The divergence in views as to what the condition meant would favour an approach of where there is an ambiguous condition of approval that is contentious, seeking a variation or modification at an early stage of the project.

In Uren, the Court ordered the Wind Farm to pay to land owners compensation. This comprised an amount for loss of amenity and aggravated damages. The loss of amenity was calculated at $1,000 per month for each landholder. Aggravated damages were equal to the total compensation for loss of amenity. In addition, the Court granted an injunction restraining the Wind Farm from ‘continuing to permit noise from wind turbines on the wind farm to cause a nuisance’ and ‘will be required to take necessary measure to abate the nuisance’. The injunction was stayed for three months (suspended). a wind farm from [insert]. The complainants in these proceedings brought a nuisance claim for ongoing noise disturbance principally at night from the neighbouring wind farm. The wind farm argued that they were in compliance with their approval. The Court held that the wind farm did not prove that they were in compliance with the approval.