Day Two Bald Hills Wind Farm v Council

The first hour of day two was spent with lawyers for each side putting their final submissions and arguing various points of law and interpretations and what if scenarios repeating much of what was said on day one in various forms. For a non-legal person, this bit was dull although from a legal point of view quite necessary as each side tried to show the Justice towards their preferred interpretation of the law as it applied in this case.

Justice Richards then noted the requested documents from day one had been received by the court and they were entered into evidence.

The first document was a letter from Bald Hills Wind Farm to the Clean Energy Regulator dated 29 March 2019 and attachments. The second document was the response letter from the Clean Energy Regular to Bald Hills Wind Farm dated 11/04/19.

These two letters were requested by this newspaper and will be made available shortly for viewing and possible reporting.

Summation of Mr Pizor QC’s Evidence representing Bald Hills Wind Farm.

Mr Pizor QC indicated that his submission would be in three parts. 

Part One. The first part was to show that the Wind Farm had a special interest in the matter. He stated that his client had an interest because of the decision by Council that the wind farm was a nuisance for purposes of the Public Health and Wellbeing Act. He claimed that decision would cause damage to his clients business or economic interests.

Mr Pizor said as evidence of this, the complainants starting of a separate civil case in the Supreme Court against the Wind Farm.

Justice Richards pointed out that that would only be the case if the wind farm was found guilty and damages were awarded. She then went on to indicate she was much more interested in the legal effects, if any, of the council’s finding and the utility of the declaration that he was seeking from the Court. Mr Pizor QC indicated he would address these two concerns in the third part of his summation.

Part Two. The second part comprises three elements. 

The first element is that the council before making its nuisance finding was required by law to have regard to the social or public interest value in the plaintiff’s operation of the wind farm. 

Here it was council’s statutory function to conduct an investigation under the Public Health and Wellbeing Act and then make a finding as to whether a nuisance within the meaning of that Act existed.

It was, therefore, part of council’s function to decide whether the noise generated by the wind farm constituted a nuisance at common law and, that will be the case if the operation of the wind farm substantially and unreasonably interfered with the complainant’s enjoyment of their land.

Council needed to weigh up the respective rights of each party and the reasonableness of those rights in this situation.

Mr Pizor then discussed many different other legal cases and their bearing on this case before attempting to use one case which Justice Richards reminded Mr Pizor QC began after the Council decision subject of this complaint.

There followed more of the same discussing various case studies and so forth until this element was ended with Mr Pizor QC stating that if Council doesn’t consider the reasonableness idea then it will commit jurisdictional error.

The second element is that the council failed to have regard to the social or public interest value in the plaintiff’s operation of the wind farm.

Justice Richards reminded Mr Pizor “that (Council) overlooked it because your client, in the vast amount of material that it put before the council, did not highlight the social or public interest in its activity. Justice Richards continued, “if it was such a relevant consideration that it was essential to the performance of the council’s function under s.62, one might have thought it would be highlighted by your client in what were unquestionably comprehensive submissions”.

Mr Pizor QC claimed that “because” of the large amount of material given by the Wind Farm to Council that Council could not have taken regard of all the evidence submitted even though the Council reports did note the evidence provided and it was supplied to Council for consideration.

Mr Pizor QC claimed that because the Wind Farm generated electricity that was for the benefit of others that it was not reasonable to find that a nuisance should be found by Council.

He stated, “given climate change and given Victoria’s historical reliance on coal generated electricity, the social and public interest in renewable energy is both strong and, we say, self-evident”.

Justice Richards then made the observation (question) to Mr Pizor QC that “the fact that your client is doing a socially useful thing and generating power for the State of Victoria from renewable resources, I’m not sure that it follows from that that it must necessarily make noise that keeps its neighbours awake at night”.

Mr Pizor QC closed this section by saying that he believed Council did not consider the social and public interest matters as part of their decision.

The third element is that that failure was material in the sense that the failure to take the matter into account might have made a difference to the outcome in this case.

Part Three concerns the suitability of the locality for the plaintiff’s operation of the wind farm. Mr PIzor QC contended again in 4 elements that Council had not considered whether the location was suitable for a wind farm. 

Justice Richards then asked Mr Pizor QC to show where in the evidence, his clients had made submissions on this point?

Mr Pizor contended that the Minister must have agreed the location was a suitable sport since he granted the permit. Justice Richards then mentioned that nuisance would not normally apply from a business that was doing like others in the area considered normal for that area such as bars at night where there were lots of bars. She noted that the farm area where the wind farm is located was not a wind farm before they arrived and not being a wind farm area, the area was perhaps merely a windy farm area.

Mr Pizor QC appeared to be floundering on this point and attempted to close off the argument by trying to use some new evidence (a file note) that had not been admitted into evidence. Justice Richards closed that option by saying that they must confine their submissions to what was already in evidence.

Justice Richards continued to press for any evidence of submissions in evidence on the matter of suitability of the location and the lawyers for the Wind Farm finally admitted there was no such evidence tendered.

Moving on…

Mr Pizor QC then said that Council did not consider what reasonable precautions had been taken by the plaintiff to minimise any interference caused by noise generated by the wind farm.

Justice Richards then asked Mr Pizor QC what reasonable precautions the Wind Farm asked Council to take into account.

Mr Pizor seemed to “beat about the bush” on this question before Justice Richards brought him up short and asked again “But what precautions”

She then said other than taking lots of measurements at sites that were not necessarily at the complainants’ dwellings, what precautions should Council have had regard to.

Mr Pizor QC then noted that the Wind Farm had amended some of its turbines operations which had not been compliant with the New Zealand Standards. Justice Richards asked if the Wind Farm had modified any of the operations at the sites around the complainants’ dwellings and Mr Pizor QC answered “No”.

Justice Richards continued, “it was not submitted to the Council that your client had taken any precautions to abate the noise as it was experienced by the five complainants”…..but that it had …..”At two specific sites that were not the sites at which the five individual defendants resided”

Mr Pizor QC claimed that Council could not ignore that his clients had taken steps to minimise issues when non-compliance had been identified, (even though they were not at dwellings of the complainants’ properties).

Justice Richards again said, “So the fact that it had taken precaution to reduce noise at some sites, but not the sites from which the complaints were emanating, I am really not even sure that’s a matter that was relevant for the council”.

Mr Pizor finalised by saying that his client had taken precautions to mitigate the noise where it had been identified in the Marshal Day report and that report had not identified any issues around the complainants’ properties.

Moving on…

Part two showing the defendants summation will follow at a later stage…………..