The costs for sound proofing would be around $110,000 and Mr Zakula would also be entitled to an ongoing payment of $10,000 per year. Mr Uren would be entitled to a payment of $10,000 per year for the period up to 2016 or 2018.

The lawyers for Mr Uren and Mr Zakula contended that nuisance was proven and that damages should be awarded as well as property loss for Mr Zakula. They also requested the Court issue an injunction to stop the noise nuisance and awarding of costs.

The legal team for Mr Uren and Mr Zakula tendered the following summation of the evidence in their closing summation.

It was 15 April 2015, when BHWF first received a complaint from Mr Uren about noise nuisance. Despite the fact that many other neighbours made similar complaints, (including Mr Zakula, from 14 September 2015), BHWF did not adjust the operation of its turbines, in any way which was purposefully directed to ameliorating the problem at the Plaintiffs’ properties. Indeed, it did nothing in that regard, over the following years, despite a total of 43 complaints from Mr Uren, and 26 from Mr Zakula (generally listing multiple days on which problems existed).

Instead of dealing with the nuisance, what BHWF did was to commission MDA to produce reports opining that the Defendant complied with its permit. The Defendant was very active in this process, including by it and its lawyers having extensive input into MDA’s supposedly “independent” reports. (Indeed, even the Department had influence over its

contents).

In its December 2016 report, MDA warned that there was a problem with “tonality” at some of the turbines. This was an obvious potential cause of the Plaintiffs’ problems. Yet the Defendant did not act appropriately to deal with the tonality issue.

BHWF implemented a “Preliminary Curtailment Strategy” in the wake of that MDA report, what they did not admit is that MDA had in fact recommended a much more aggressive and likely more effective curtailment strategy (including for turbine 16, near Mr Zakula’s property), which the Defendant rejected, presumably for financial reasons.

In March 2017 and June 2017 respectively, MDA produced reports purportedly showing permit

compliance at the Plaintiffs’ properties. They then relied on these reports ongoing.

In May 2017 BHWF decided upon a strategy of refusing to “engage” with the Plaintiffs, pending what it hoped would be the Minister’s decision to find permit compliance. 

The Defendant simply hoped the Plaintiffs would give up, in circumstances where the Plaintiffs were tiring of repeatedly reporting complaints, only to see no action taken.

This approach seems farcical, in that since Mr Zakula’s house was not protected by the permit, and because Mr Uren’s house was not one of the 13 to be put to the Minister for his satisfaction, the Defendant should have known that the Minister’s satisfaction would also be no kind of defence to the Plaintiffs’ complaints.

In August 2017, the Defendant was advised that 10 out of 11 turbines tested were faulty in respect of gearbox tones, including turbine 16 near Mr Zakula’s house. A reasonable wind farm operator would have acted quickly to test the 41 remaining turbines, and to ensure that the problem with turbine 16 was fixed. That did not occur. Indeed, to date, 

the other turbines have not been tested, and the gearbox in turbine 16 has not been replaced.

BHWF’s main response to the tonality problem was to obtain damages from the turbine manufacturer, apparently in the sum of at least $11.7m in liquidated damages, whilst at the same time continuing to deny any nuisance was being caused to Mr Uren and Mr Zakula.

In August 2018, BHWF sought to change its complaints policy so that it would not need to deal with “repeat” complainants like the Plaintiffs. Once again, BHWF was determined to ignore the Plaintiffs and let them suffer the nuisance. Indeed, when in December 2019 the new policy was approved, BHWF’s staff joked that they would enjoy telling repeat complainants (like the Plaintiffs) that they “don’t have to do anything further” to respond to their complaints.

In September 2018, Mr Smith, an expert engaged by the Council, found that the Plaintiffs were affected by a nuisance. The Defendant unreasonably failed to accept this independent assessment, and instead decided to take its chances in convincing the Council not to adopt the Smith report. 

On 4 October 2018, the Defendant was given legal advice by Mr Pizer QC and Mr Kruse, explicitly advising that a permit could not authorise a nuisance, and that permit compliance was not necessarily any defence to a claim in nuisance. 

On 8 November 2018, the Plaintiffs’ solicitor made submissions to the Council. In those submissions, she explained the flaws in the MDA approach, and made the critical point that the MDA graphs are consistent with the existence of an intermittent nuisance. 

On 27 March 2019, the Council found that the wind farm was causing a nuisance to the Plaintiffs.

On 29 August 2019, the Defendant secretly applied to delete a condition from the permit.

On 16 March 2020, BHWF filed its initial defence in this proceeding, denying the Nuisance and on 18 August 2020, the Court dismissed the BHWF’s judicial review application also from the Supreme court.

On 26 August 2021, it filed an amended Defence, now insultingly (and without foundation) claiming that the Plaintiffs were “hypersensitive”. During the trial, including in cross-examination of the Plaintiffs, BHWF continued to prosecute its case that the Plaintiffs were hypersensitive.

The plaintiffs are claiming damages for the aggravation caused over this time and also for damages due to the claim BHWF knew there was a noise nuisance and pretending there was not. BHWF has over $282 million in assets and generates $40 million in revenue each year. The plaintiffs’ lawyers are claiming a figure of $1 million for exemplary damages in this case.

But Mr Zakula’s main claim is for an injunction to be granted so that the noise nuisance would cease. The Court could impose a requirement that the BHWF simply cease the nuisance and leave it to the BHWF to comply at risk of contempt of Court if it did not. Or the court could demand that certain turbines are operated on reduced power, or a section of the Wind Farm was turned off at certain times.

The Judge reserved her decision which could take several months to process.

Don Hill