The Windfarm and its Permit Conditions

Bald Hills Windfarm has 52 turbines scattered around South Gippsland in the Walkerville area. The permit was issued under the planning and environment act and the South Gippsland Planning Scheme. Permit was actually issued by the State Government Minister for Planning.

Mr Pizor QC then made reference to four of the planning conditions.

The first, (permit condition 19), requires compliance with the New Zealand Standards. Mr Pizor then went on to say “the standard provides guidelines for the prediction, measurement, and assessment of sound from wind turbine generators. And it contains a detailed guide for defining and measuring acceptable sound limits and background noise in relation to wind turbines. In particular, the standard adopts an indoor sound level for protecting against sleep disturbance. The first condition requires compliance with the New Zealand standard”.

Justice Richards then asked if the permit condition applied to all the complainant dwellings and Mr Pizor QC said it did apply to them.

The second permit condition required a noise complaint evaluation and response process be submitted to and approved by the Minister for Planning, to address any alleged breaches of condition 19.

The third permit condition we refer to is condition 23. That condition required there to be an independent post-construction noise monitoring program, to be carried out in accordance with the New Zealand standard and condition 19.

The fourth permit condition to refer to is condition 24. That condition required an independent report summarising the results of that monitoring program to be forwarded to the Minister within a certain time of each monitoring period coming to an end.

Bald Hills Wind Farm engaged an independent acoustician, Marshall Day Acoustics, to prepare a noise compliance testing plan, and to assess the wind farm’s operational noise in accordance with that plan.

Justice Richards then queried why condition 23 in the permit contemplated the Minister for Planning undertaking the investigation but that Bald Hills Wind Farm did their own compliance testing themselves. 

Mr Pizor QC responded that Bald Hills Wind Farm did the testing themselves for reasons of convenience, but the program was approved by the minister.

Editor Comment: Council as part of its regulatory requirements had to investigate the noise nuisance. What if Council had done like the State Government and allowed the Wind Farm to do their own testing and writing up of the report? Is it appropriate for the Wind Farm to  hire their own testing firm? 

Since around 2015 the Wind Farm received numerous complaints and in response to those complaints and the permit conditions it engaged Marshall Day Acoustics to investigate and produce a report to send to the Minister.

The complainants around the Windfarm then notified Council under section 62 of the Health and Wellbeing Act that a nuisance existed and needed to be investigated.

The first investigation in February 2017 found no nuisance existed.

The complainants challenged that finding in the Supreme Court. The Court ordered by consent in August 2017 that Council’s decision be quashed, and that Council investigate again the complaints about nuisance.

This second investigation by Council led to the reports and decisions to Council in March and April 2019.

Mr Pizor QC then went on to detail the data collected in that investigation. Daily noise logs from the complainants, gathered data from Marshall Day Monitoring equipment. A review of data from the Marshall Day and other reports was also commented upon in the Council report conducted by a Dr Smith.

The Smith report was the first stage of the Council investigation.

The second stage involved Council receiving written and oral submissions and other documentary material from the complainants and from the Wind Farm. These submissions were submitted as evidence in this case and number some 3500 pages as stated in the affidavit from Council.

The third stage in the investigation involved Council obtaining legal advice from Mr Connor QC. Mr Connor QC was asked if it was reasonably open to Council to find that noise emanating from the wind farm constitutes a nuisance of the type governed by the 2008 Act and what Council should do if it found the nuisance exists.

Mr Connor QC advised Council that the matter was best settled through mediation inline with section 62 of the Health and Wellbeing Act if Council were to find that a nuisance existed.

There followed a rather long discussion on the meaning of the words nuisance and reasonable. 

Mr Pizor QC believed that a loss of sleep did not constitute a nuisance and that the process described above that the Council followed was flawed in that Council did not properly perform the “unreasonableness evaluation” in accordance with law.

Various case studies were given as to what this “unreasonable test” list comprised. Mr Pizor QC kept referring to Council providing reasons for its decision and Justice Richards finally asked “I am intrigued by your client’s insistence that the Council was obliged to provide reasons. And that relates back to the question I asked you earlier, about what is it that the Council does when it makes a finding under s.62(3).

Mr Pizor QC said he would respond to those concerns in his final address.

Mr Pizor referred to Council having gone beyond its powers in determining a nuisance but that they had supplied no evidence of such and did not want the Court to make determinations on this non-supplied information.

Mr Pizor QC actually said, “We simply raise it for the court’s consideration when it comes to hearing Council’s oral submissions and we also didn’t want it to be said in the future that we’ve somehow waived our right to complain about the way in which Council has actively involved itself in defending its decisions.”

Editor Comment: WHAT????? Complaining about Council “actively” defending its decision? Challenged in the Supreme Court is he proposing Council should defend its position any other way?

Justice Richards then reminded Mr Pizor QC that his clients, the Wind Farm, took action against the Council. Mr Pizor QC agreed with Justice Richards. Mr Pizor QC then informed the court that he would deal with this issue later as well.

Mr Pizor QC then closed his remarks by saying “In summary, we say that the following matters fall to be determined, 

1, does the plaintiff have standing? 

2. has the plaintiff made out any of its grounds? In essence, our grounds are to the effect that Council failed to take into account mandatory considerations or constructively failed to perform a function that the Act required it to perform. 

3. whether certiorari is available to quash Council’s finding that a nuisance existed for the purposes of the Act,

4. and if a ground of challenge is made out, whether the court should nevertheless refuse to grant relief sought in the exercise of its discretion.

Editor Comment: The meaning of the word “certiorari” is “is a court process to seek judicial review of a decision of a lower court or administrative agency.” That’s a new one for me too.

Part 4 coming soon