SOME OF THE REASONS FOR THE SUPREME COURT DECISION GIVEN BY THE COURT

(1) On 28 February 2018, the Council endorsed a Bald Hills Wind Farm noise complaint investigation plan. An investigation was conducted by James C Smith & Associates, who provided a report to the Council in September 2018.
Dr Smith’s conclusion was: It is clear from the investigation that noise from the wind farm is audible within residences although there are noise monitoring reports stating that there is compliance by the wind farm with permit conditions and the New Zealand Standard 1998, and with a noise mitigation strategy in place at the wind farm. The noise was clearly audible in Mr Zakula’s dwelling at night time twice and in the Jelbart residence at night time twice and this is held to be unreasonable in both cases. The experience at the Jelbart residence on 24th and 25th July 2018 whereby wind farm noise intruded on conversation within the residence at night time is seen to be detrimental to personal comfort and the enjoyment of the residential environment by Mr and Mrs Jelbart. After consideration of the completed noise logs by individual complainants and subsequent discussions with some of these individuals it appears there is a nuisance caused by wind farm noise, in that, the noise is audible frequently within individual residences and this noise is adversely impacting on the personal comfort and wellbeing of individuals

(2) The Council performed its duty under s 60 by investigating the complainants’ notification and, on finding that a nuisance existed, deciding that the best course of action was to advise the complainants of several available methods for settling the matter privately. The finding that a nuisance existed was the premise for the Council’s decision under s 62(3)(b). Once that decision was taken, and the advice provided, the finding had no further significance and its effect was spent.

(3) Bald Hills’ contention that the Council failed to have regard to mandatory considerations has failed.

(4) The real problem for Bald Hills was that it did not provide the Council with evidence that it had taken any precautions to avoid or minimise the turbine noise that disturbed the complainants in their homes. The abundant material provided by Bald Hills to demonstrate that it was compliant with the planning permit simply did not engage with the alleged nuisance notified by the complainants. While the curtailment strategies implemented by Bald Hills in December 2016 and May 2017 showed that it could take measures to abate noise levels at a given location, it had not implemented those strategies in respect of any of the complainants’ properties.

(5) However, on the question of reasonableness, Bald Hills made no submission to the Council about the social and public utility of its operation. On judicial review, the Council’s finding of nuisance must be considered in light of the submissions that were made to it, and ‘not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process. It was not open to Bald Hills to contend that the Council’s finding involved jurisdictional error because it did not take into account a matter that was not put to it in the otherwise comprehensive submissions made on Bald Hills’ behalf.

(6) Further, it was difficult to discern exactly what it was that Bald Hills said the Council should have taken into account, or how it could have been material to the Council’s finding of nuisance. It did not appear to contend that the noise that from time to time disturbed the complainants’ sleep was necessary in order for it to continue generating electricity.

(7) There was no evidence that Bald Hills made any submission to the Council that noise from the wind farm was reasonable because of the suitability of its location. Once again, the Council’s finding that a nuisance existed must be considered in light of the submissions that were made to it. There was no jurisdictional error in not considering a submission that was not made.

(8) The Council did not fail to have regard to mandatory considerations. The Court did not accept that the Council disregarded the acoustic material in making its finding of nuisance. The Court was  satisfied that the Council took it into account on the question of reasonableness

(9) Bald Hills did not establish that the Council disregarded relevant material that was essential to the performance of its statutory function.

The Court has asked all parties to submit with regard to costs being awarded.

Dominica Tannock of DST Legal, the lawyer for the aggrieved landowners from South Gippsland stated today that the ruling by the Supreme Court was an emphatic vindication of the decision by the council and a substantial decision for the landowners and the operation of the facility.

Ms Tannock said the operators of the Wind Farm not only lost their challenge of the council’s decision but were also likely to be liable for the considerable legal costs associated with the proceedings. Further legal action on behalf of the landowners is ongoing in the Supreme Court and is likely to take until Sept 2021 to resolve.