Day Two Bald Hills Wind Farm v Council-Part 2

After the Wind Farm Legal Team completed their summation it was the turn of the defence side to make their case.

First up was the lawyer for Council Mr Horan QC. After his submission, the legal team representing the 5 residents had their say. This was put to the Court by Mr Fetter QC

Summation of Mr Horan QC’s Evidence representing South Gippsland Council.

Mr Horan countered Mr Pizor’s summation by quoting and making reference to various case studies. 

His position was put as council took into account all of the material and the submissions put to it, and it dealt properly with the issues that were raised by that material in the manner in which they were raised, and it was required to do no more in order to address the statutory function that it had in making a finding whether or not there was nuisance, and in the particular ways relied upon.

Summation of Mr Fetter’s Evidence representing 5 residents of South Gippsland.

Under s.62 of the Act, the council is to investigate a nuisance. The legislation doesn’t say how the investigation is to be conducted.

Mr Fetter made the point that “if the Wind Farm did not offer up anything on the matter of location being appropriate or not, had not mentioned it in their documentation, and then claims the decision of Council is at fault since Council did not respond to that issue. That is an exercise in futility.” Mr Fetter went on to elaborate the following points.

“Similar submissions are made in relation to ground of social utility. We embrace the proposition that this was not put by the operator as a matter it relied upon on the question of whether there was a nuisance. 

In response to the Wind Farm asserting that 4% of the state’s power comes from Bald Hills Wind Farm, we say that the 4% refers to the output of the whole windfarm not the few turbines that are causing the noise nuisance. And those particular turbines were causing an intermittent problem not all the time.

I’m putting to Your Honour that from the outset the case that the wind farm put to the council was it pinned all of its efforts on demonstrating compliance with the permit as effectively a defence to the nuisance and wished to say nothing on any of the other factors.

And so what we would say to Your Honour is that seeing that this is how the matter was opened by the operator, tracking it through its four submissions to council, it simply did not rely either on locality or on social utility and it can’t seriously now be heard to say that the council erred in not considering those factors”

There ended the two-day case and Justice Richards will return at a later date with her decisions.