The Untended Evidence in Bald Hills v Council Trial (Supreme Court)

During the Bald Hills Wind Farm trial on June 10th, 2020, in the Supreme Court of Victoria the director of the wind farm under cross examination admitted to not submitting two letters relevant to the case.

The first letter was from Bald Hills Wind Farm to the Clean Energy Regulator. The letter notified the Regulator of the Council finding of nuisance as decided in the March 27th 2020 Council meeting as well as informing the Regulator of Bald Hill’s opinion on the case and its view that because it was compliant with its planning permit, that it should not have its accreditation removed by the Clean Energy Regulator.

In cross examination, Ms Costello QC put to the Bald Hills Director that the reason he left this and the second letter out of evidence was because it undermined the Wind Farm case in the Supreme Court by seeming to counter some of the Wind Farm’s submissions and arguments in the trial.

The letter did contain the statement from the Wind Farm Director that, “Pleasingly, BHWF is not required to modify its operations as a result of this finding”. It also stated in one paragraph that BHWF did not assert that compliance with the planning permit meant that a nuisance did not exist, and that compliance was merely a strong indicator that the noise emitted by the wind farm was not a nuisance. This statement seems contrary to BHWF public stance that it can not be causing a nuisance since it is in compliance with its permit conditions.

The last point made to the Clean Energy Regulator was when BHWF Director noted that under section 30E(3) of the Renewable Energy (Electricity) Act 2000 that the Regulator may suspend a power station’s accreditation where it believes on reasonable grounds that the power station is being operated in contravention of a law of the Commonwealth, State, or Territory.

BHWF requested that the Regulator confirms its view on the matter since the ongoing operation of BHWF was dependent upon the registration of large-scale generation certificates.

The Regulator responded on April 11th, 2020 and confirmed in that letter that “at this stage, no action will be taken to suspend the BHWF power station under the Renewable Energy (Electricity) Act 2000”. The letter went on to say “However, we will continue to monitor the responses of parties involved in this matter and would appreciate if you could keep us informed of any relevant developments or outcomes”.

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