Bald Hills Wind Farm Pty Ltd v South Gippsland Shire Council

Bald Hills Wind Farm Pty Ltd brought an action for judicial review against the South Gippsland Shire Council, challenging the Council's resolution that the noise from the wind farm constituted an intermittent nuisance under the Public Health and Wellbeing Act 2008 (Vic). The Council had notified the operator of the wind farm of the alleged nuisance under section 62(1) of the Act, and subsequently, the Council adopted a resolution under section 62(3) that an intermittent nuisance of the kind alleged existed and recommended that the matter be settled privately. The wind farm operator sought judicial review on the basis that the Council had failed to have regard to relevant considerations, disregarded material considerations, and that the resolution was amenable to the remedy of certiorari.

The central legal issues in the case involved whether the wind farm operator had standing to seek judicial review of the Council's resolution, whether the resolution was amenable to the remedy of certiorari, and if the Council had failed to have regard to mandatory considerations in finding that a nuisance existed or disregarded material considerations essential to the performance of its statutory task. The court needed to determine if the Council's resolution contained jurisdictional error, which would warrant judicial intervention.

The Court found that the wind farm operator had standing to seek judicial review and that the resolution was amenable to certiorari. However, the Court held that the Council's resolution did not contain any jurisdictional error. The Court found that the Council had not failed to have regard to any mandatory considerations and had not disregarded any material considerations. The Court concluded that the Council had exercised its discretion in a manner consistent with the statutory requirements, and there was no evidence that the Council had acted in a way that was outside the scope of its statutory powers or had failed to consider relevant factors. The Court dismissed the application for judicial review.

The Court found no jurisdictional error in the Council's resolution and dismissed the application for judicial review. The Court did not make any orders for costs.