Uren v Bald Hills Wind Farm Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S ECI 2020 00471

NOEL UREN and JOHN ZAKULA	Plaintiffs
v
BALD HILLS WIND FARM PTY LTD	Defendant

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATES OF HEARING:	6–10, 13–17, 20–23 September, 12 October 2021
DATE OF JUDGMENT:	25 March 2022
CASE MAY BE CITED AS:	Uren v Bald Hills Wind Farm Pty Ltd
MEDIUM NEUTRAL CITATION:	[2022] VSC 145

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TORTS – Nuisance – Private – Wind farm operated by defendant – Plaintiffs complain noise from wind turbines disturbs sleep – Substantial interference with plaintiffs’ enjoyment of land – Interference is intermittent and specifically affects plaintiffs’ ability to sleep undisturbed at night – Social and public utility of wind farm – Whether plaintiffs hypersensitive – Nature and established uses in locality – Whether wind farm an established use in locality – Whether defendant took reasonable precautions – Noise found to be substantial and unreasonable interference with plaintiffs’ enjoyment of land.

PLANNING – Permit compliance – Relevance of permit compliance to private nuisance claim – Noise conditions in planning permit apply New Zealand Standard 6808:1998 Acoustics – The Assessment and Measurement of Sound from Wind Turbine Generators – Whether wind farm complied with noise conditions in permit – Proper interpretation of noise conditions and NZ Standard – Role of Minister in relation to permit compliance – Minister responsible authority for noise conditions under Planning and Environment Act 1987 (Vic) – Not for Minister to determine permit compliance – Defendant did not establish compliance with noise conditions in permit.

INJUNCTION – Whether damages an adequate remedy for continuing nuisance – Damages not an adequate remedy – Injunction restraining defendant from continuing to permit noise from wind turbines to cause nuisance at night and requiring defendant to take necessary measures to abate nuisance – Injunction stayed for three months.

DAMAGES – Damages for past loss of amenity – Aggravated damages – High-handed conduct of defendant – Exemplary damages not awarded.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Ms G Costello QC with Mr J Fetter	DST Legal
For the Defendant	Mr AM Dinelli with Mr EJ Batrouney	Lander & Rogers

TABLE OF CONTENTS

GLOSSARY......................................................................................................................................... 1

OVERVIEW......................................................................................................................................... 4

Nuisance............................................................................................................................... 8
Injunction............................................................................................................................ 11
Damages.............................................................................................................................. 12

NUISANCE....................................................................................................................................... 14

Issue 1 – A substantial interference?........................................................................................ 15
Mr Zakula........................................................................................................................... 15
Mr Uren............................................................................................................................... 19

Issue 2 – A shifting burden?...................................................................................................... 22
Issue 3 – Nature and extent of interference............................................................................. 24
Issue 4 – Planning permit compliance..................................................................................... 25
Permit conditions............................................................................................................... 25
NZ Standard....................................................................................................................... 30
Bald Hills’ compliance program...................................................................................... 35
Role of the Minister........................................................................................................... 40
Enforcement under the Planning Act................................................................ 41
Construction of condition 19.............................................................................. 44

Responses to the plaintiffs’ noise complaints................................................................ 47
Expert acoustic evidence.................................................................................................. 59
Expert evidence – Christopher Turnbull........................................................................ 64
Review of MDA assessments.............................................................................. 71
Noise monitoring.................................................................................................. 72

Compliance with condition 19(a).................................................................................... 79
MDA noise assessments...................................................................................... 83

Applying condition 19(b) – special audible characteristics......................................... 85
Compliance with condition 19(c) – protection of sleep at night................................. 89
MDA...... ................................................................................................................ 89
Mr Turnbull........................................................................................................... 90
Dr Thorne.............................................................................................................. 91
Mr Huson............................................................................................................... 91
A further alternative............................................................................................ 95

Summary of conclusions on permit compliance........................................................... 95

Issue 5 – Relevance of planning permit compliance.............................................................. 96
Consideration..................................................................................................................... 98

Issue 6 – Social and public interest value.............................................................................. 103
Issue 7 - Hypersensitivity........................................................................................................ 104
Opposition to wind farm................................................................................................ 104
Evidence of neighbours.................................................................................................. 106
Open day protest............................................................................................................. 116

Issue 8 – Character and established uses in the locality...................................................... 117
Issue 9 – Precautions taken...................................................................................................... 120
Issue 10 – Other possible precautions.................................................................................... 120
Selective noise optimisation........................................................................................... 120
Gearbox tonality issue..................................................................................................... 121
Soundproofing................................................................................................................. 125

Issue 11 – An unreasonable interference?............................................................................. 127
Issue 12 – A continuing nuisance?.......................................................................................... 129

INJUNCTION................................................................................................................................. 129

Issue 13 – Should an injunction be granted?......................................................................... 129
Issue 14 – Terms of the injunction.......................................................................................... 131
Consideration................................................................................................................... 133

DAMAGES...................................................................................................................................... 134

Issues 15, 16 and 17 – Damages referable to Uren properties............................................ 135
Issues 18 and 19 – Damages referable to Zakula property................................................. 137
Issue 20 – Damages for distress, inconvenience and annoyance....................................... 140
Consideration................................................................................................................... 142

Issue 21 – Aggravated damages.............................................................................................. 143
Issue 22 – Exemplary damages............................................................................................... 146
Issue 23 – Proper measure of loss and damage.................................................................... 146

DISPOSITION................................................................................................................................ 147

GLOSSARY

Term	Definition
Bald Hills	Bald Hills Wind Farm Pty Ltd, the operator of the Bald Hills wind farm, and the defendant to the proceeding.
Complaint Procedure	Community Noise Complaint Evaluation and Response Procedure, prepared by Bald Hills and endorsed by the Minister on 12 February 2015.
Council	South Gippsland Shire Council.
dB	Decibel, the unit of measure of sound.
dBA or dB(A)	A-weighted decibels, the unit of measure of sound adjusted to reflect the perception of sound to the human ear.
Environment Protection Regulations	Environment Protection Regulations 2021 (Vic).
EnviroRisk	EnviroRisk Management Pty Ltd.
EPA	Environment Protection Agency.
EPC Agreement	Engineering Procurement and Construction Agreement between Bald Hills and Senvion.
ETSU-R-97	ETSU-R-97 The Assessment and Rating of Noise from Wind Farm 1996.
Hz	Hertz, the unit of measure for the frequency of a sound in cycles per second.
ICG	Infrastructure Capital Group.
IEC DIS 1400-11	A standard published by the International Electrotechnical Commission for applying the Joint Nordic Method, prescribed by the NZ Standard.
IEC61400-11	The revised version of IEC DIS 1400-11, a standard published by the International Electrotechnical Commission for applying the Joint Nordic Method.
ISO1996-2	A standard published by the International Organization for Standardization for applying the Joint Nordic Method.
ISO1996-2 2007	A standard published by the International Organization for Standardization for applying the Joint Nordic Method, prescribed by the 2010 NZ Standard.
Joint Nordic Method	An objective method for determining the audibility of tones.
L₉₀	The sound level is exceeded for 90% of the measurement period. For example, L_{90(10 min)}is the level exceeded for 90% of the measurement time of 10 minutes.
L₉₅	The sound level is exceeded for 95% of the measurement period.
m/s	Metres per second.
MDA	Marshall Day Acoustics.
MDA December 2016 report	Report produced by MDA titled ‘Assessment of Wind Farm Operational Noise’ dated 12 December 2016.
MDA Uren noise report	Report on MDA’s findings in relation to Mr Uren’s property dated 2 June 2017.
MDA Zakula noise report	Report on MDA’s findings in relation to Mr Zakula’s property dated 7 March 2017.
Minister	Minister for Planning.
NCTP	Noise compliance testing plan, prepared by MDA and approved by the Minister on 20 August 2015.
Noise Measurement Services	Noise Measurement Services Pty Ltd.
NZ Standard	New Zealand Standard 6808:1998 – Acoustics – The Assessment and Measurement of Sound from Wind Turbine Generators.
2010 NZ Standard	New Zealand Standard 6808:2010 – Acoustics – Wind farm noise.
Panel	The planning panel appointed in 2003 to consider and evaluate submissions made in relation to an application to the Minister for a planning permit for the use and development of land for a wind energy facility.
Permit	Planning permit TRA/03/002 granted by the Minister on 19 August 2004.
Planning Act	Planning and Environment Act 1987 (Vic).
Resonate	Resonate Acoustics.
SAC	Special audible characteristic.
Senvion	Senvion GMBH.
SEPP N-1	State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N–1.
Sonus	Sonus Pty Ltd.
Tribunal	Victorian Civil and Administrative Tribunal.
Uren properties	The properties formerly owned by Noel Uren and his brother, Bruce Uren, located at 1550 Buffalo-Waratah Road, Tarwin Lower and 87 Kings Flat Road, Tarwin Lower.
Vestas	Vestas – Australian Wind Technology Pty Ltd.
Wellbeing Act	Public Health and Wellbeing Act 2008 (Vic).
wind farm	Bald Hills wind farm, located near Tarwin Lower in South Gippsland, Victoria.
WTG	Wind turbine generator.

HER HONOUR:

OVERVIEW

The Bald Hills wind farm is located near Tarwin Lower in South Gippsland, Victoria. Since it began operating in 2015, the wind farm has received many complaints from neighbouring residents and landowners about noise from the wind turbines. In this proceeding, two of those neighbours, Noel Uren and John Zakula, seek remedies from the operator of the wind farm, Bald Hills Wind Farm Pty Ltd, for common law nuisance.

From about 1994, Mr Uren lived in a house at 1550 Buffalo-Waratah Road, Tarwin Lower on land that he owned together with his brother, Bruce Uren. The Uren brothers farmed sheep and cattle on that land, and on another property to the north at 87 Kings Flat Road, Tarwin Lower, together the Uren properties. Their partnership dissolved in mid-2015 and the Uren properties were sold. The southern property, on which Mr Uren was living, sold on 18 March 2016. By agreement with the new owner, Mr Uren continued living in the house until December 2018, when he moved into the town of Tarwin Lower.

Mr Zakula bought his property at 860 Buffalo-Waratah Road, Tarwin Lower in June 2008. He described the land that he bought as a ‘cow paddock’, on which he planned to establish an organic farm. Mr Zakula established windbreaks of native vegetation around the property, and planted olive, fruit and nut trees. While there was no house on the property when he bought it, there was a planning permit to build a dwelling. Mr Zakula designed and built an energy efficient house on the property, which was completed during 2011. He moved into the house in late 2011 and has lived there since.

From the time the wind farm was first proposed in the early 2000s, it has been the subject of considerable local controversy. In 2003, a Planning Panel was appointed to consider and evaluate submissions made in relation to an application to the Minister for Planning for a planning permit for the use and development of land for a wind energy facility, and the Environment Effects Statement prepared for the project. The Panel held hearings and conducted site visits in March and April 2004, and reported to the Minister in June 2004. It recommended that a permit be granted, subject to conditions, including conditions in relation to acoustic amenity.

The Minister granted planning permit TRA/03/002 on 19 August 2004, which allowed the use and development of land ‘for a wind energy facility for the generation and transmission of electricity from wind generators, together with associated buildings and works’. The permit allowed the construction of a wind farm of 52 turbines of up to 110 metres each, and included detailed conditions concerning acoustic amenity. The permit prescribed noise conditions, which applied the noise limits and methodology set out in the New Zealand Standard 6808:1998 – Acoustics – The Assessment and Measurement of Sound from Wind Turbine Generators (NZ Standard).

Construction of the wind farm commenced in about 2012 and was completed during 2015. The first of the 52 turbines started generating electricity in February 2015, and the wind farm was fully operational by September 2015. It produces up to 380,000 megawatts of electricity each year.

Figure 1 is a map of the wind farm, which comprises three groups of wind turbines — a group of 17 turbines to the south, a central group of six turbines, and a larger northern group of 29 turbines. Mr Uren lived in House 57, to the east of the central group and the north-east of the southern group. Mr Zakula’s house is at the north-eastern corner of the map, to the north-east of the northern group of turbines. Certain houses and tenements, and all of the wind turbines, are numbered on the map in Figure 1. Those numbers are used throughout the judgment.

Figure 1: Map of Bald Hills wind farm and surrounding area, tendered by agreement between the parties.

During 2015, a number of people who lived near the wind farm complained to its operator about noise from the turbines. The Bald Hills complaint register records 50 complaints received during 2015, all of them about noise, some of them from Mr Uren and Mr Zakula. Bald Hills investigated their complaints made in 2015, and many later complaints. Numerous investigations by Bald Hills’ acoustic consultants, Marshall Day Acoustics (MDA), concluded that wind farm noise levels at Mr Zakula’s and Mr Uren’s properties were consistent with the noise conditions in the permit. As a result, Bald Hills took no remedial action in response to any of their complaints.

In 2016, Mr Zakula, Mr Uren, and a number of other people complained to the South Gippsland Shire Council that a nuisance existed at their properties, caused by noise transmitted by the wind farm. The complainants asked the Council to investigate the nuisance and take action to remedy it, in fulfilment of its statutory responsibility under the Public Health and Wellbeing Act 2008 (Vic). After a lengthy process, the Council resolved on 27 March 2019 that it was satisfied there existed a nuisance of the kind alleged by the complainants, but that the nuisance existed only intermittently. The Council’s resolution recorded its opinion that the matter was better settled privately.

Bald Hills sought judicial review of the Council’s resolution, in a proceeding commenced in this Court on 21 June 2019. Mr Uren, Mr Zakula and the other complainants were later joined as defendants to that proceeding. The proceeding was dismissed in August 2020.[1]
[1]Bald Hills Wind Farm Pty Ltd v South Gippsland Shire Council [2020] VSC 512 (Bald Hills No 1).

In 2017, the ownership and management of the wind farm changed. On 28 February 2017, an investment fund managed by Infrastructure Capital Group (ICG) acquired Bald Hills from its former owner, Mitsui & Co Australia Limited. Since March 2017, ICG has been responsible for the management of the wind farm, including overseeing compliance with the permit and managing complaints. James Arthur is a director of both ICG and Bald Hills. The day-to-day operation and maintenance of the wind farm is contracted to a third party contractor, initially Senvion GMBH and, from December 2019, Vestas – Australian Wind Technology Pty Ltd.

In February 2020, Mr Uren, Mr Zakula and ten of their neighbours commenced this proceeding. The other plaintiffs resolved their claims against Bald Hills before the trial of the proceeding, and were removed as parties. Six of the former plaintiffs — Don and Dorothy Fairbrother, Don and Sally Jelbart, Stuart Kilsby and Alexander McDougall — were called as witnesses by Mr Uren and Mr Zakula.

The issues for determination in the proceeding, and my conclusions in relation to each issue, are as follows.

Nuisance

(1) Has noise from wind turbines on the wind farm operated by Bald Hills caused a substantial interference with the plaintiffs’ use and enjoyment of their land?

Yes. Noise from the turbines on the wind farm has caused a substantial interference with both plaintiffs’ enjoyment of their land — specifically, their ability to sleep undisturbed at night, in their own beds in their own homes. The interference has been intermittent and, in Mr Zakula’s case, is ongoing. While both Mr Uren and Mr Zakula have been annoyed by the sound of the turbines during the day, it has not substantially interfered with their enjoyment of their properties.

(2) If yes to question 1, does the burden shift to Bald Hills to establish that the interference was reasonable?

It is unnecessary to decide this question, because the evidence enables me to make the necessary findings of fact in relation to most issues. Bald Hills accepted that it bore the burden of proof on the one issue on which I may have been left in doubt, which is whether the sound from the turbines received on the plaintiffs’ land at all times complied with the noise conditions in the permit.

(3) What is the nature and extent of the interference?

The interference does not involve property damage or personal injury. It is an interference with the acoustic amenity of the plaintiffs’ properties, in particular their ability to sleep undisturbed in their beds at night. The interference is substantial, albeit intermittent, and in Mr Zakula’s case is ongoing.

(4) Has the sound from the turbines received on the plaintiffs’ land at all times complied with the noise conditions in the permit?

Bald Hills has not established that the sound received at either Mr Uren’s house or Mr Zakula’s house complied with the noise conditions in the permit at any time. Permit compliance is not determined by the Minister, who is the responsible authority for the permit. While the Minister can initiate enforcement action, it is for the relevant court or tribunal to determine permit compliance.

Bald Hills did not demonstrate compliance with condition 19(a) of the permit, either by the 2021 assessment of noise monitoring data undertaken by its acoustic expert, Christopher Turnbull, or his review of MDA’s noise assessments. Mr Turnbull’s method for assessing compliance with condition 19(a) was not the method prescribed by the NZ Standard, properly interpreted. MDA initially did not assess compliance at Mr Zakula’s house or at Mr Uren’s house, but at other nearby locations. The findings of the noise assessment reports MDA produced for Mr Zakula’s house in March 2017 and for Mr Zakula’s house in June 2017 were plainly flawed.

Neither Mr Turnbull nor MDA demonstrated compliance with condition 19(c), in relation to the night period. Condition 19(c) provides a ‘hard measure’ for protecting sleep and requires assessment on individual nights.

In addition, neither Mr Turnbull nor MDA properly applied condition 19(b) of the permit in assessing compliance with conditions 19(a) and 19(c).

(5) If so, what is the relevance of compliance with the noise limits in the permit?

Demonstrated compliance with the NZ Standard and condition 19 of the permit would not necessarily have established that the noise that from time to time disturbed Mr Uren’s and Mr Zakula’s sleep was reasonable. Significantly, the NZ Standard sets a limit on the extent to which wind turbine noise may increase continuous underlying noise levels, assessed over a long period. It is not directed to intermittent loud noise from wind turbines, and does not provide a way of assessing whether a wind farm produces unreasonably annoying noise in certain weather conditions, or on a particular night.

(6) What is the social and public interest value in operating the turbines to generate renewable energy?

The generation of renewable energy by the wind farm is a socially valuable activity, and it is in the public interest for it to continue. However, there is not a binary choice to be made between the generation of clean energy by the wind farm, and a good night’s sleep for its neighbours. It should be possible to achieve both.

(7) Is either of the plaintiffs hypersensitive to noise from the turbines?

No. Neither Mr Zakula nor Mr Uren is hypersensitive to wind farm noise.

(8) What is the character of and the nature of established uses in the locality of the plaintiffs’ land?

Both properties are in a relatively quiet and remote rural locality. Sounds associated with farming activities are typical of the area during the day, but do not cause intrusive noise at night. Traffic on nearby roads is light and usually creates limited disturbance. The wind farm itself cannot be taken into account as an established use in the locality, because it has not established compliance with the noise conditions in the permit or Div 5, Pt 5.3 of the Environment Protection Regulations 2021 (Vic).

(9) What precautions has Bald Hills taken to avoid or minimise the interference?

Bald Hills has not demonstrated compliance with the noise conditions in the permit at Mr Uren’s house or at Mr Zakula’s house at any time. While Bald Hills investigated and responded to their numerous complaints, it did not take any remedial action to reduce the noise from wind turbines received at either property.

(10) Could Bald Hills reasonably have taken any other precautions?

Bald Hills could reasonably have taken at least two further precautions to reduce the noise levels at the plaintiffs’ homes. It could have implemented selective noise optimisation of nearby turbines. It could also have remedied the gearbox tonality issue that was identified by MDA in December 2016.

(11) Having regard to the answers to questions 3 to 10, has the interference with the plaintiffs’ use and enjoyment of their land been unreasonable?

Yes. Noise from the wind turbines on the wind farm has amounted, intermittently at night, to a substantial and unreasonable interference with the plaintiffs’ enjoyment of their land. The wind farm noise has been a common law nuisance at both properties.

(12) If yes to question 11, will noise from the turbines continue to cause a substantial and unreasonable interference with Mr Zakula’s use and enjoyment of his land?

Yes. The nuisance is ongoing at Mr Zakula’s property.

Injunction

(13) If yes to question 12, should an injunction be granted restraining Bald Hills from continuing the nuisance?

Yes. An injunction to abate the nuisance is the primary remedy sought by Mr Zakula, and an injunction will be granted. I do not consider that damages would be an adequate remedy, or that I should exercise my discretion to award damages instead of an injunction for any other reason.

(14) If so, in what terms?

I will grant an injunction restraining Bald Hills from continuing to permit noise from wind turbines on the wind farm to cause a nuisance at Mr Zakula’s house at night, and requiring it to take necessary measures to abate the nuisance. The injunction will be stayed for three months.

Damages

(15) Is Mr Uren entitled to damages in respect of the alleged decline in value of his share of the Uren properties?

No.

(16) If so, what is the quantum of that loss and damage?

Does not arise.

(17) Is Mr Uren entitled to any remedy in respect of nuisance after 18 March 2016?

Yes. Mr Uren had a leasehold interest in the house on the southern property from March 2016 until December 2018, and he is entitled to damages for nuisance for that period.

(18) If an injunction is not granted to restrain the defendant from continuing the nuisance, is Mr Zakula entitled to any damages in respect of the alleged diminution in value of his land attributable to the nuisance, or the cost of abating the nuisance?

I have decided to grant an injunction requiring Bald Hills to abate the nuisance. Had I not done so, Mr Zakula would have been entitled to damages for the reduction in value of his property attributable to the nuisance.

(19) If so, what is the quantum of that loss and damage?

The noise nuisance from the wind turbines, if it were to continue, would reduce the value of Mr Zakula’s property by $200,000.

(20) Is either plaintiff entitled to damages for distress, inconvenience and annoyance, and if so in what amount?

Yes. Both plaintiffs are entitled to damages for past loss of amenity, in the amount of $12,000 per year, or $1,000 per month. Mr Uren is entitled to damages of $46,000, and Mr Zakula is entitled to damages of $84,000.

(21) Should aggravated damages be awarded to either plaintiff, and if so in what amount?

Yes. Bald Hills’ conduct towards both Mr Uren and Mr Zakula was high-handed and warrants an award of aggravated damages. The manner in which Bald Hills dealt with the plaintiffs’ reasonable and legitimate complaints of noise, over many years, at least doubled the impact of the loss of amenity each of them suffered at their homes. There will be an award of aggravated damages of $46,000 to Mr Uren, and $84,000 to Mr Zakula.

(22) Should exemplary damages be awarded to either plaintiff, and if so in what amount?

No. I do not consider that Bald Hills engaged in conscious wrongdoing or acted in contumelious disregard of the plaintiffs’ right to sleep peacefully in their own homes.

(23) What is the proper measure of each plaintiff’s loss and damage, having regard to the answers to questions 15 to 22 above?

Mr Uren will be awarded damages in the amount of $92,000, comprising $46,000 for past loss of amenity, and $46,000 for aggravated damages. Mr Zakula will be awarded damages of $168,000, comprising $84,000 for past loss of amenity, and $84,000 for aggravated damages.

My reasons for those conclusions follow.

NUISANCE

A person commits a private nuisance if that person interferes with another person’s use or enjoyment of their land in a way that is both substantial and unreasonable. In Hargrave v Goldman,[2] Windeyer J described the basis of liability for nuisance in this way:

In nuisance liability is founded upon a state of affairs, created, adopted or continued by one person (otherwise than in the reasonable and convenient use by him of his own land) which, to a substantial degree, harms another person (an owner or occupier of land) in his enjoyment of his land.

[2](1963) 110 CLR 40, 62.

Whether an interference is substantial is a question of fact.[3] A substantial interference may involve property damage, personal injury, or harm to an occupier’s use or enjoyment of land; for example, by air pollution, vibration, noise or dust.[4] While it does not extend to a trivial interference, or protect those of ‘delicate or fastidious’ habits,[5] it does include an interference that disturbs an occupier’s sleep.[6]
[3]Riverman Orchards Pty Ltd v Hayden [2017] VSC 379, [179].
[4]Marsh v Baxter (2015) 49 WAR 1, [244] (McClure P).
[5]Haddon v Lynch [1911] VLR 5, 9.
[6]Haddon v Lynch, 9; Munro v Southern Dairies Ltd [1955] VLR 332, 335.

Whether an interference is unreasonable is an objective question, to be answered by ‘weighing the respective rights of the parties in the use of their land to make a value judgment as to whether the interference is unreasonable’.[7] The authorities direct attention to a range of considerations that may be relevant to the question of reasonableness. These were summarised by the Court of Appeal of Western Australia in Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management:[8]

To constitute a nuisance, the interference must be unreasonable. In making that judgment, regard is had to a variety of factors including: the nature and extent of the harm or interference; the social or public interest value in the defendant’s activity; the hypersensitivity (if any) of the user or use of the claimant’s land; the nature of established uses in the locality (eg residential, industrial, rural); whether all reasonable precautions were taken to minimise any interference; and the type of damage suffered.

[7]Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management (2012) 42 WAR 287, [119] (McClure P, Buss JA agreeing at [336]).

[8]Southern Properties, [118] (McClure P, Buss JA agreeing at [336]).

This formulation has been adopted in a subsequent Court of Appeal decision in Western Australia,[9] and has been applied by single judges of this Court.[10]
[9]Ammon v Colonial Leisure Group Pty Ltd (2019) 55 WAR 366, [121]. See also Marsh v Baxter, [248] (McClure P).
[10]Riverman, [180]–[181]; Butler Market Gardens Pty Ltd v GG & PM Burrell Pty Ltd [2018] VSC 768, [93]; Bald Hills No 1, [69]–[70].

Issue 1 – A substantial interference?

The first issue for determination is whether noise from wind turbines on the wind farm caused a substantial interference with Mr Zakula’s and Mr Uren’s use and enjoyment of their land. In their pleading, the plaintiffs also claimed that infrasound from the wind turbines constituted a nuisance. However, their case at trial focused on noise alone. They did not separately address infrasound in their evidence or submissions, and neither does this judgment.

Mr Zakula

Mr Zakula first saw the wind turbines turning in around March 2015. He became aware of noise from the turbines in about June or July 2015, when he could hear a roaring sound emanating from them. The noise was louder at night time than during the day. He described the sound as a continual roar, ‘like the arrival of a train and the train just — but it never stops arriving’.[11] He also said that the noise levels were cyclic, going up and down, and that there was also a regular whooshing noise. He did not attribute the noise to any particular turbine, but to the combined effect of the turbines and the interaction between them — like listening to an orchestra rather than a soloist.
[11]Transcript, 9 September 2021, 230:11–13.

According to Mr Zakula, the noise was loudest in cooler conditions, particularly at night. He described having difficulty getting to sleep, and also being woken during the night and then having trouble getting back to sleep. The wind conditions and noise from the turbines that disturbed his sleep were variable and intermittent. Mr Zakula said that the noise from the turbines could continue for several days, was extremely disturbing and made him feel as if he was seasick or carsick. There were occasions when he drove to Walkerville beach and slept in his car to escape from the noise. He estimated that he did this two or three times a month between April and September each year, typically after several consecutive nights of sleep disturbance.

Mr Zakula was also bothered by wind turbine noise during the day, particularly on cool, still mornings. He said that the noise subsided slightly as the day warmed up, ‘but it’s still roaring during the day and you walk around the property and the garden and it’s in your face’.[12] The turbine noise was less disturbing to him in windier conditions, because it was drowned out by the sound of the wind and the surrounding trees. Daytime noise levels tended to be lower during the warmer months, and louder in the winter months.
[12]Transcript, 9 September 2021, 236:24–26.

By September 2015, Mr Zakula had started keeping records of the turbine noise, including when it disturbed his sleep, and had made the first of many complaints to Bald Hills. The Bald Hills complaint register records that on 14 September 2015, Mr Zakula reported:

- Why are we turning the turbines when there is no wind?
- Noise is very bad
- Sounds like a steam train
- It is an aerodynamic noise. I can hear the blade passing the tower.
- the Noise from the turbines is varying all the time.
- Its worst when wind coming from south west.
- can hear the sound loudest on western side of bedroom
- can hear a machine Noise as well
- Believe the machine Noise is coming from the substation
- there is a steady drone
- Noise is worst when wind turbines are operated as fans (ie not generating but taking power from grid and being run like a motor)

Mr Zakula made 14 more noise complaints to Bald Hills during 2015, initially by telephone and then, from November 2015, by letter. By that time he felt that it was pointless to keep making telephone calls and repeating the same things over and over again, and so he started to put his complaints in writing. He made notes when he was disturbed by noise from the turbines, which he then compiled into letters to the wind farm. Initially he did this monthly.

In January 2016, Mr Zakula replaced the window in the western wall of his bedroom with a solid bluestone wall. He did this to try to reduce the wind turbine noise in his house. While it did reduce the noise levels to some extent, Mr Zakula could still hear roaring and whooshing sounds from the turbines in his bedroom, and the noise continued to disturb his sleep. He no longer leaves the windows and doors open at night, due to noise from the wind farm.

Mr Zakula continued to send complaint letters to Bald Hills during 2016. The Bald Hills complaint register records eight complaints from Mr Zakula in 2016, all of them in similar terms. For example, on 19 October 2016, Mr Zakula wrote to Matthew Croome, the general manager of the wind farm at that time, as follows:

As previously stated I have significant concerns regarding the disturbing nuisance noise generated by the Bald Hills Wind Farm and the manner in which they are operated.
I formally lodge a nuisance noise complaint at the following times.

September 3rd 2016 0700hrs All night

September 4th 0600hrs All night

September 8th 0600hrs All night

September 9th 0600hrs All night

September 14th 0700hrs All night

September 18th 0400hrs All night

September 19th 0500hrs All night

September 21st 0700hrs All night

September 24th 0400hrs All night

September 30th 0600 All night
The noise is causing me considerable disturbance and is seriously affecting my sleep as can be seen in the early morning disturbances. This situation is affecting my health causing anxiety and stress, headaches and other issues. The noise is severe and at its worst at night time and is [continuous] throughout the entire night and days and has been ongoing since the startup of the industrial facility. I also have information that these sound levels exceed the background levels including night time levels as specified in the Planning Permit.
I also note there are significantly notable Special Audible Characteristics produced for a significant period of the night (2200 to 0800 hrs) exceeding the night time specifications defined in the Planning Permit and consistent with previous noise nuisance complaints.

At the trial, Mr Zakula said that he was still experiencing the same noise levels from the wind farm that he had complained about in 2015 and 2016. The noise was more disturbing during the cooler months, less so in the summer months. It tended to be louder when the wind was coming from the west, particularly the south-west in the cooler seasons, and when the wind speed was in the low to medium range.

In cross-examination, Mr Zakula agreed that other stresses in his life, in particular litigation he had been involved in, may also have contributed to his inability to sleep. He agreed that he had become passionately opposed to the wind farm over the last six years. I understood that his opposition had developed because of the wind turbine noise at his property, which he believed did not comply with the permit. Mr Zakula rejected the suggestion that his opposition to the wind farm might have affected his perception of the noise from the turbines or the sleep disturbance he was experiencing.

After 2016, Mr Zakula continued to keep records of turbine noise that disturbed him, although his complaint letters became less frequent. I have reviewed those records, as well as his complaints. The records are consistent with Mr Zakula’s evidence about noise disturbance from the wind farm from 2015 onwards. Between September 2015 and December 2019, he recorded more than 450 nights on which his sleep was disturbed by wind turbine noise, including 11 nights on which he could not sleep at all.

I do not consider that Mr Zakula exaggerated his perception of the wind turbine noise, or its effects on his sleep. I will deal later in this judgment with the separate question of whether he is hypersensitive to wind turbine noise.[13]
[13]See [245]–[294] below.

Bald Hills relied on the evidence of its acoustic expert, Christopher Turnbull, and his conclusions that wind turbine noise measured at Mr Zakula’s property in 2021 did not exceed the acceptable limit under the NZ Standard, 40 dB(A), at any wind speed. It submitted that this was not a substantial level of noise. I will examine the acoustic evidence in detail below, including the methodology for assessing wind turbine noise that is prescribed by the permit and the NZ Standard. At this point it is sufficient to note that Mr Turnbull’s conclusions concern average sound levels attributed to wind turbines at Mr Zakula’s property, measured over a six week period between February and April 2021. They do not negate Mr Zakula’s description of variable and intermittently loud noise from the wind farm, which disturbs his sleep only at some times and in some conditions.

I find that noise from the turbines on the wind farm has woken Mr Zakula or kept him awake on hundreds of occasions since June 2015. There were nights when he was unable to sleep at all. There were others when he left home and slept in his car at Walkerville beach to escape the noise. On any view, this amounts to a substantial interference with Mr Zakula’s enjoyment of his property at night — specifically, his ability to sleep undisturbed in his own bed in his own house on his own rural property.[14] The interference is intermittent, but ongoing. While Mr Zakula is annoyed by the sound of the turbines during the day, it does not substantially interfere with his enjoyment of his property.
[14]See [16] above.

Mr Uren

Mr Uren said that after the wind farm began operating in 2015 he could hear noise from the turbines inside his house. The noise varied. He could hear the ‘whoosh, whoosh’ sound of the blades turning, sometimes there was a ‘rolling noise’, sometimes there was a ‘real roaring going on’, like a car over-governing, and at other times there was a mechanical noise, like engine brakes on a big truck. Mr Uren noticed these noises from the wind farm more often when the atmosphere was cool, especially in the wintertime, and he said he ‘used to cop it’ when a northerly or north-westerly wind was blowing.

These noises interrupted Mr Uren’s sleep. He said he could be woken ‘at all hours of the night’. Quite often he moved from his bedroom to the lounge, where he would turn the radio on and sleep on the couch. It was not noisy all the time: sometimes there would be no noise, and at other times he was woken two or three times in a week. The noise gave him headaches, which he just put up with. As well as sleeping in the lounge, Mr Uren sometimes went to a friend’s place and camped the night there.

Mr Uren could also hear noise from the turbines when he was out working on the farm during the day. The noise was very annoying, but he was able to put up with it.

There are a total of 36 complaints from Mr Uren recorded in the Bald Hills complaint register between March 2015 and April 2018, most of them in autumn and winter. His complaints were consistent with his evidence about the noises he heard, the weather conditions in which he heard them, and their effect on his sleep. For example, on 5 May 2015, Mr Uren reported:

- He was woken from his sleep about 4:40am by [noise] from the turbines which he could hear inside his house
- He believes the wind was a westerly or north westerly
- Seems again the noise occurred when wind was at lower levels as he couldn't hear presently
…

A year later, on 5 May 2016, Mr Uren complained:

- Woken at 5 am this morning
- Woke with headache
- Could hear the turbines over the radio
- Fell asleep with the radio on but could hear it over the radio when I woke

Mr Uren also kept handwritten notes of when he was disturbed by wind turbine noise in 2016, 2017 and 2018. I have reviewed these notes, which are consistent with the evidence Mr Uren gave about his experience of the turbine noise, and when it was most disturbing. His notes confirm that the noise interrupted his sleep intermittently, and that this occurred most often in the cooler months.

Together, the Bald Hills complaint register and Mr Uren’s notes record around 100 occasions on which his sleep was disturbed by wind turbine noise between May 2015 and November 2018. Mr Uren’s irritation about repeatedly being woken or kept awake is evident from these records.

It was put to Mr Uren that his long standing opposition to the wind farm had affected his perception of the noise he heard from the turbines. He rejected that suggestion. I accept his evidence of his subjective experience of the wind turbine noise. I consider below whether he was overly sensitive to, or unreasonably annoyed by, wind farm noise.[15]
[15]See [245]–[294] below.

I find that wind turbine noise disturbed Mr Uren’s sleep, waking him or keeping him awake, or both, on around 100 occasions between May 2015 and December 2018. His sleep was disturbed by turbine noise on six separate nights before the land was sold in March 2016. The remaining disturbances occurred after the sale, while Mr Uren was still living in the house with the agreement of the new owner. I am satisfied that this amounted to a substantial interference with his enjoyment of the property at night.[16] During the day, however, the turbine noise was annoying but bearable.
[16]The nature of Mr Uren’s interest in the property after the sale in March 2016 is discussed at [357]–[363] below.

For the reasons discussed at [31] above, Mr Uren’s evidence was not controverted by Mr Turnbull’s conclusion that wind turbine noise measured at the southern Uren property in 2021 did not exceed 40 dB(A) at any wind speed.

Issue 2 – A shifting burden?

As mentioned, this is not the first proceeding in this Court about whether noise from the wind farm is a nuisance. In Bald Hills Wind Farm Pty Ltd v South Gippsland Shire Council (Bald Hills No 1),[17] I dismissed Bald Hills’ challenge to the Council’s resolution expressing its satisfaction that ‘there exists a nuisance of the kind alleged by the complainants’ and noting that ‘the nuisance exists only intermittently’. The resolution was the culmination of a number of noise complaints made to the Council under s 62 of the Wellbeing Act, including complaints by Mr Zakula and Mr Uren.
[17][2020] VSC 512.

It was common ground in Bald Hills No 1 that a ‘nuisance’ for the purposes of Pt 6, Div 1 of the Wellbeing Act is a nuisance at common law. It was also not in contention that the case was concerned with complaints of private nuisance — that is, that noise from the wind farm was interfering with the complainants’ use and enjoyment of their land in a way that was both substantial and unreasonable. My summary of the elements of the tort of private nuisance was in essentially the same terms as the summary set out at [15] to [18] above.[18] In addition, I said:[19]

Once a substantial interference has been established, there is a prima facie case of nuisance. In a civil claim for nuisance, the evidentiary burden shifts to the person who created the substantial interference to demonstrate that it was reasonable.

[18]Bald Hills No 1, [66]–[67], [69]–[70].

[19]Bald Hills No 1, [68], citing Kraemers v Attorney General (Tasmania) [1966] Tas SR 113, 122–5 (Burbury CJ); Southern Properties, [119] (McClure P, Buss JA agreeing at [336]); Butler Market Gardens, [100].

The shifting burden was one of my reasons for concluding that the ‘reasonableness factors’ enumerated by McClure P in Southern Properties were not mandatory relevant considerations for the Council in making a finding under s 62(3) of the Wellbeing Act. My reasoning was as follows:[20]

Fourth, the common law position is that a substantial interference with a person’s enjoyment of their land is prima facie a nuisance, unless the person creating the interference can show it to be reasonable. This may be done by, for example, demonstrating that the person took reasonable precautions to avoid the interference, that the interference is justified by its social utility, or that the interference arises from an activity that is an established use in the locality. Bald Hills’ submission did not take into account that it bore the onus of satisfying the Council that its interference with the complainants’ enjoyment of their land was reasonable, by drawing the Council’s attention to relevant matters. As discussed below, in performing its function under s 62(3), the Council was obliged to have regard to relevant material put forward by Bald Hills. However, it did not also have to work through a mandatory checklist of the Southern Properties reasonableness factors before making a finding that a nuisance existed.

[20]Bald Hills No 1, [81].

Bald Hills did not appeal my decision in Bald Hills No 1. However, in this proceeding, it submitted that there is no shift in the evidentiary burden of proof of substantial interference. In other words, it submitted that I should not follow that aspect of my reasoning in Bald Hills No 1, which was informed by a similar conclusion in Butler Market Gardens Pty Ltd v GG & PM Burrell Pty Ltd.[21] Bald Hills argued that the burden only shifts where the plaintiff proves some damage to property, while in cases involving personal discomfort the burden remains with the plaintiff on all issues.[22]
[21][2018] VSC 768, [100].
[22]Referring to Kraemers, 119, 122; St Helen’s Smelting Co v Tipping (1865) 11 HLC 642, 650; 11 ER 1483, 1486 (Lord Westbury LC); Corbett v Pallas (1995) 86 LGERA 312, 316–17 (Priestley JA); Gartner v Kidman (1962) 108 CLR 12, 48 (Windeyer J, Dixon CJ agreeing at 15); Owners Corporation SP 46510 v Tan [2020] NSWSC 1564, [55]–[56].

This submission raised a number of interesting questions about the common law of nuisance, the coherence of the law of torts, res judicata and issue estoppel. In the event, it is not necessary to determine any of these questions.

According to the author of Cross on Evidence, there are ‘four occasions upon which it is vitally important to know which of the two parties to litigation has the burden of proof on a given issue’.[23] These are ‘when there is a dispute concerning the right to begin calling evidence …; when there is a submission of no case to answer; when the tribunal of fact is left in doubt; and when an appellate court is considering the correctness of a judgment or summing up related to the burden of proof’.[24]
[23]LexisNexis, Cross on Evidence (online at 17 March 2022) [7001].
[24]Ibid.

In this case there was no dispute about the course of evidence, and Bald Hills did not make a submission of no case to answer. Both sides adduced abundant evidence directed to the question of reasonableness. Bald Hills pleaded a number of specific matters in its defence — the nature and extent of any harm or interference; the social or public interest value in its generation of renewable energy; the hypersensitivity of the plaintiffs; the nature of established uses in the locality; the reasonable precautions it had taken to minimise any interference; compliance with the permit conditions relating to noise; and the type of damage suffered by the plaintiffs.[25] Unsurprisingly, Bald Hills led evidence in relation to the matters raised in its pleading. With one possible exception, I am in a position to make findings in relation to those matters based on the whole of the evidence.
[25] Defence to further amended statement of claim dated 26 August 2021, [28A], [28B].

The issue on which I may have been left in doubt is whether the sound from the turbines received on the plaintiffs’ land at all times complied with the noise conditions in the permit. Bald Hills accepted without equivocation that it bore the burden of proof on that issue.[26] That being the case, there is no need to consider whether I should revisit what I said in Bald Hills No 1 about the shifting burden of proof in the tort of nuisance.
[26]Transcript, 12 October 2021, 1399:21–1400:13, 1409:29–1410:5.

Issue 3 – Nature and extent of interference

As Bald Hills pointed out, the interference in this case does not involve property damage or personal injury. It is an interference with the acoustic amenity of the plaintiffs’ properties. I have already made findings about the nature and extent of the interference, which is substantial, albeit intermittent.[27] In Mr Zakula’s case, the interference is ongoing.
[27]See [32] and [40] above.

I will consider Bald Hills’ submission that Mr Zakula and Mr Uren’s perception of noise from the wind farm was influenced by non-acoustic factors, specifically their long-standing opposition to the wind farm, when I come to the issue of hypersensitivity.[28]
[28] See [245]–[251] below.

Issue 4 – Planning permit compliance

Bald Hills contended that the sound from the turbines received on the plaintiffs’ land complied with the noise conditions in the permit. This was a central component of its defence to the plaintiffs’ claim that noise from the turbines has since 2015 amounted to a nuisance.[29] As mentioned, Bald Hills accepted that it bore the burden of proving that it had complied with the permit conditions that regulate wind turbine noise.
[29]Defence to further amended statement of claim dated 26 August 2021, [28](b)(ii), (d), [28B].

The question of permit compliance is a complex one, which must be answered in many parts. I begin with an outline of the noise conditions in the permit, the NZ Standard, and the steps taken by Bald Hills to demonstrate compliance with the permit. It is necessary to consider the role of the Minister in determining permit compliance, an issue that assumed some importance. I then describe the responses by Bald Hills to the plaintiffs’ noise complaints, including outlining the methodology used by MDA to investigate their complaints. Next, I refer to the expert acoustic evidence, in particular the evidence of Mr Turnbull that was relied on by Bald Hills. I then reach conclusions as to whether Bald Hills has demonstrated compliance with each of conditions 19(a), 19(b) and 19(c) at the plaintiffs’ properties.

Permit conditions

Conditions 18 to 25 of the permit relate to noise. They provide:

18) Before the development starts, new local background sound level measurements shall be taken at the following properties:
•930 Buffalo Waratah Road, Tarwin Lower, Lot 1 LP140966, Parish of Tarwin South
•1150 Tarwin Lower Waratah Road, Tarwin Lower, Lot 1 TP431975.

19) The operation of the wind energy facility must comply with the New Zealand Standard ‘Acoustics — The Assessment and Measurement of Sound from Wind Turbine Generators’ (NZ 6806:1998)[30] (the ‘New Zealand Standard’), in relation to any dwelling existing at the date of approval of this document to the satisfaction of the Minister for Planning.
[30]There appears to be a typographical error in permit condition 19 – the correct number of the NZ Standard is NZS 6808:1998.
In determining compliance with the New Zealand Standard, the following apply:
(a) The sound level from the wind energy facility, when measured outdoors within 10 metres of a dwelling at any relevant nominated wind speed, should not exceed the background level (L95) by more than 5dBA or a level of 40dBA L95, whichever is the greater.
(b) When sound has a special audible characteristic, the measured sound level of the source shall have a 5 dB penalty applied.
(c) Compliance at night must be separately assessed with regard to night time data. For these purposes the night is as defined in SEPP — N1. For sleep protection purposes, a breach of the standard set out at 19(a), for 10% of the night, amounts to a breach of the condition.

20) Condition 19 does not apply if an agreement has been reached with a specific landowner through which the landowner accepts predicted noise levels and/or appropriate acoustic attenuation measures are installed for the landowner to ensure a reasonable level of acoustic amenity in relation to the indoor habitable areas of any dwelling, and acknowledges that the operation of the wind energy facility may still generate noise in outdoor areas on the land which may from time to time exceed the New Zealand Standard.
21) Before the use commences, details of a noise complaint, evaluation and response process must be submitted to and approved by the Minister for Planning to address any alleged breaches of Condition 19. This evaluation process should include, but not be limited to the following components:
(a) A noise complaint telephone service.
(b) Details of validity requirements for noise complaints (that is: date, time, noise description and weather conditions at the receptor).
(c) Response protocol to valid noise complaints.
(d) A register of complaints, responses and rectifications which may be inspected by the Minister for Planning.
(e) Provision for review of the complaint and evaluation process, including review of the process 6 months after commencement of the operation of the wind energy facility.

22) Where condition 19 is found to have been breached, the Minister for Planning shall notify the wind energy facility operator, with a request that steps be taken to ascertain the relevant meteorological circumstances at the time of breach and to noise optimise the operation of the relevant turbine or turbines in such circumstances. If there is a further breach in similar circumstances, the Minister for Planning shall notify the wind energy facility operator, with a request to noise selectively shut down the operation of the relevant turbine or turbines in those circumstances. In circumstances where optimisation or selective shutdown routines have been requested but not reasonably implemented, or have been implemented but have not prevented further instances of recorded breach, the relevant turbine or turbines will be required to be decommissioned and removed.
23) An independent post-construction noise monitoring program must be commissioned by the Minister for Planning within 2 months from the commissioning of the first generator and continue for 12 months after the commissioning of the last generator to the satisfaction of the Minister for Planning. The program must be carried out in accordance with the New Zealand standard as varied by condition 19 (a), (b) and (c) above. The permit holder must pay the reasonable costs of the monitoring program.
24) An independent report summarising the results of the monitoring program, and the data collected, and indicating compliance or non compliance with the New Zealand Standard, must be forwarded to the Minister for Planning within 45 days of the end of each the monitoring period. The results must be written in plain English and formatted for reading by lay people.
25) The Minister for Planning must make a copy of the report and any data available as soon as practicable during office hours for any person to inspect free of charge.

Conditions 28 and 29 set out the process for determining the dwellings at which condition 19 applies. They provide:

28) Prior to the preparation of the development plan, a plan shall be prepared to the satisfaction of the Minister for Planning showing all farm tenements neighbouring the development site (including those separated from the site by a road), and the location of existing houses on each separate tenement, as at 24 June 2004 (the ‘tenement plan’). In the event that there are any tenements over 40 ha in area without an existing house, a potential house site for the tenement should be identified after consultation with the tenement owner. The Minister for Planning may indicate satisfaction with an otherwise reasonable plan that does not address the issues raised by all consultees.
29) Where a dwelling site is shown on an approved tenement plan, it shall be considered as an existing dwelling for the purposes of all other relevant conditions in this permit.

These permit conditions accord with the recommendations of the Panel that considered the permit application and the environment effects statement for the wind farm in 2004. The Panel’s report was titled ‘Bald Hills Wind Farm Project: EES, EES Supplement and Called-in Permits’ (Panel Report). Chapter 13 of the Panel Report concerned acoustic amenity — that is, ‘the enjoyment of the place in which one lives or works, without undue or unreasonable exposure to unwanted sound that is a by‑product of adjacent land uses’.[31]
[31]Bald Hills Wind Farm Project: EES, EES Supplement and Called-in Permits (Panel Report, 24 June 2004) 192.

The Panel noted that there was a high level of concern from the public about the acoustic impact of the proposed wind farm, including in relation to the adequacy of the NZ Standard. The South Gippsland Planning Scheme incorporated the Policy and Planning Guidelines for the Development of Wind Energy Facilities in Victoria dated May 2003, which required the adoption of the NZ Standard as the standard for acoustic amenity. The Panel accepted that compliance with the NZ Standard was a criterion to be met, but expressed some reservations about the ‘considerable room for manoeuvre’ in interpreting the standard and difficulties in enforcing it. The Panel adopted an additional criterion of protecting residents in a dwelling from undue sleep disturbance due to wind farm noise.[32]
[32]Ibid, 194.

The Panel explained its concerns about night time noise levels:[33]

Compliance with NZS 6808 using long periods of averaged data that does not differentiate between day and night hours has the potential to expose sensitive receptors to significant levels of adverse noise impact. However, the standard explicitly contemplates the use of a defined night time or other exceedence period to ensure that emissions and effects are properly evaluated for the purposes of setting performance requirements.
It is possible that stable air conditions at night may result is significant increases in predicted noise emissions, as found in the work of Fritz van den Berg at Wind Park Rhede, located in Europe on the Germany – Netherlands border. This effect can manifest in an area significantly larger than predicted in normal acoustic modelling being subject to significant tonal variations, experienced as cyclic beats. However, little work has been done to demonstrate whether the van den Berg effect is specific to Rhede or is found in other locations with more or less severity. Whilst the adverse impact of such an effect on sensitive receptors could be significant, it has not been demonstrated as being likely to be experienced on and around the project site.
The 5dbA penalty provisions of NZS 6808 could apply if a van den Berg phenomenon of annoying tonal variations and cyclic beats was found to occur on the subject site.
The proponent has established that it is technically feasible and considers that it is appropriate to noise optimise (ie reduce power yield) or even switch off individual or groups of turbines under particular wind or other climatic conditions, as a means of controlling adverse acoustic impacts in breach of a relevant approval condition or standard.
The absence of an independent entity charged with acoustic condition compliance monitoring adds considerably to difficulties in assessing operational performance in the face of noise complaints. Municipalities are not likely to possess the budgets or the expertise necessary to monitor or enforce wind farm acoustic conditions. The Department of Sustainability and Environment Planning and Building and/or Regional Services Divisions do not directly possess the expertise necessary to monitor or enforce wind farm acoustic conditions. The EPA possesses the theoretical expertise to carry out this task but lacks a formal role under the planning scheme or SEPP.

[33]Ibid, 209–10.

The recommendations of the Panel in relation to acoustic amenity were:[34]
[34]Ibid, 210.

Before the commencement of construction, new local backgrounds should be taken at the Fox and Burfield properties.
Where the relevant acoustic performance standard for a dwelling cannot be met on a proponent stakeholder property, the property owner should enter into an agreement under section 173 of the Act, providing that the dwelling may only be occupied by a person who is a shareholder in or entitled to receipt of turbine rents from the project, and the family of such a person.
A night compliance period should be defined for the purposes of NZS 6808. Of preference, this should be the night as defined in SEPP – N1. Within the defined night period, the wind energy facility should not exceed the standard more than 10% of the time. This approach should protect the interests of occupants in undisturbed sleep.
In accordance with NZ 6808, a 5dbA penalty should apply to noise experienced at sensitive receptors that contains annoying tonal variations and cyclic beats.
For the purpose of meeting any limit pursuant to NZS 6808, including a 5dBA penalty limit, the proponent is entitled to seek to demonstrate to the satisfaction of the responsible authority that time or climate responsive acoustic optimisation and/or temporary turbine shutdown regimes can be implemented, before enforcement is commenced seeking the permanent removal of a turbine or turbines.
In this case, the Minister for Planning should retain the ongoing responsibility for monitoring and enforcing acoustic conditions. The proponent should underwrite the actual cost of a monitoring programme to the satisfaction of the Minister.
In the medium term, consideration should be given to the establishment of a role for the EPA in monitoring and enforcing acoustic conditions.
In the medium term, consideration should be given to the use of a SEPP or other relevant Victorian standard to define the specific application of NZS 6808 and or the forthcoming Australian Standard to wind energy facilities within Victoria.

NZ Standard

The NZ Standard provided a method for predicting and measuring sound from wind turbine generators, referred to as ‘WTGs’, and the assessment of the received sound. It also provided ‘guidance on the limits of acceptability for sound received at residential and noise sensitive locations emitted from both windfarms and single WTGs’.[35] The introductory paragraphs of the NZ Standard explained that wind turbine specific guidelines were needed because other acoustic standards were unsuitable for measuring sound from wind turbines in the presence of wind.
[35]New Zealand Standard 6808:1998 – Acoustics – The Assessment and Measurement of Sound from Wind Turbine Generators, 3 – Foreword (NZ Standard).

Section 4 of the NZ Standard dealt with preliminary planning and pre-installation issues. Clause 4.4 provided a guide to acceptable limits, in the following terms:

4.4.1 Background
In order to determine acceptability of predicted WTG L_R or windfarm sound levels it is necessary to compare these predicted levels with background sound levels measured in accordance with 4.5. The measured background sound levels are used to quantify the existing sound climate which can be quite low as WTG sites are often located in areas with a rural character. In order to provide a satisfactory level of protection against the potential adverse effects of WTG sounds, this Standard recommends an upper limit of acceptable WTG sound levels outdoors at the residential locations of 40 dBA L₉₅ (refer to 4.4.2). This has been based on an internationally accepted indoor sound level of 30 to 35 dBA L_eq commonly used as a design level to protect against sleep disturbance (refer Berglund & Lindvall). See 4.4.2, Notes (1) and (2) for the relationship between L_eq and L₉₅. A reduction from outdoors to indoors of typically 10 dB with open windows has been assumed.
4.4.2 Acceptable limit
As a guide to the limits of acceptability, the sound level from the WTG (or windfarm) should not exceed, at any residential site, and at any of the nominated windspeeds, the background sound level (L₉₅) by more than 5 dBA, or a level of 40 dBA L₉₅, whichever is the greater.
NOTE –
(1) The level predicted (L_R) is based on the Leq source level of the turbines under consideration and hence the predicted level is also an L_eq level. This predicted level needs to be assessed against a recommended acceptable level and possibly a measured background level, both determined using an L₉₅ descriptor.
(2) Overseas studies on windfarm sound (refer ETSU-R-97), have shown that L₉₅ is typically 1.5 dB – 2.5 dB lower than L_eq measured over the same period. Similarly L_eq is typically 1.5 dB – 2.5 dB lower than L₁₀, assuming a normal distribution of sound levels. Hence L₉₅ is typically 5 dB lower than L₁₀. For this reason, a 5 dB only margin should be applied above the L₉₅ results, rather than the “background plus 10” approach which, subject to specified reservations, is taken in NZS 6802.
4.4.3 Special audible characteristics
These limits of acceptability are specified without any adjustment applied for special audible characteristics. Predicted or measured L_R levels from WTGs with known special audible characteristics shall be adjusted by adding +5 to the level. This adjustment is a penalty to account for the adverse subjective response likely to be aroused by sounds containing such characteristics (see section 5.3 for compliance assessment for sounds containing special audible characteristics).
4.4.4 Territorial Authority compliance level
Nothing in this Standard prevents the Territorial Local Authority from specifying an alternative compliance level (at residences or noise sensitive areas) on a site-by-site basis, taking into account individual circumstances and characteristics (e.g. distance to WTG(s), other sound sources, amenity values, etc.).

Clause 4.5 set out the method for carrying out background sound level measurements:

4.5.1
This Standard recommends that background sound level measurements be carried out where predicted sound levels of 35 dBA or higher are calculated for the relevant locations. It is recommended that measurement positions be selected to include locations at or within the nearest affected residential property boundary, (the notional boundary – if a rural property), and near the location of representative positions for any other residential locations within the vicinity of a WTG or windfarm.
4.5.2
The locations selected for sound level measurements shall be more than 5 metres from any significant vertical reflecting surface, or other structures or objects (such as trees, power lines, etc.) so that “natural” wind sound generated at or near the microphone is excluded as far as possible from the measurements. The microphone shall be protected from extraneous wind sound by using a manufacturer’s purpose designed wind shield. Instrumentation shall be in accordance with section 4 of NZS 6801. In addition, cables, supporting tripods and any other equipment associated with the measurement system shall be so secured as to avoid extraneous wind sound generated in close proximity to the microphone.
NOTE – If a particular residential location is, for example, surrounded by trees, some of the tree induced background sound may be considered as part of the general overall background sound at that location. For locations influenced by such factors as traffic noise, the background sound level measurements should include times in the early morning when traffic noise drops to a minimum.
4.5.3
Background L₉₅ levels shall be measured in accordance with NZS 6801 at positions indicated in 4.5.1. Concurrent measurement of windspeed and direction shall be taken within the windfarm site at a known height above ground level.
NOTE – As background sound level measurements vary as a function of windspeed and direction, it is necessary to undertake measurements of windspeed and direction concurrently with background sound level measurements.
4.5.4
For the measurement of background levels, the same location should be used for the measurement of windspeed and direction before and after installation. Care must be taken to ensure the measurement of windspeed and direction is not significantly affected by the WTG(s). Measurement time intervals should be synchronized to allow for meaningful correlation of wind data with measured background sound levels. Monitored data should cover the range of windspeeds and wind directions generally expected at the windfarm site.
4.5.5
Background sound level measurements shall be correlated with the windspeeds measured at the windfarm or WTG site. A regression curve shall be used to describe the average background sound level versus the windfarm windspeed relationship. It may be necessary to separately correlate background sound levels with windspeed for different wind directions and/or time of day.
4.5.6
Background sound level measurements (L₉₅) shall be conducted in accordance with NZS 6801 excluding any reference to ‘Zero Met’ conditions (see 5.3.3 of NZS 6801), and measurement positions less than 5 metres from reflecting surfaces (see 5.2.2 of NZS 6801). Data should be obtained for the windspeed range of 5 m/s – 8m/s, i.e. slightly above the typical cut-in windspeed of currently commercially available WTGs.
NOTE – It is suggested that 10 minute L₉₅ background sound measurements be taken at the relevant residential and/or other noise sensitive locations over the required range of windspeeds and wind directions as measured within the windfarm area. Most importantly, this should cover the lower range of windspeeds within which it is anticipated that the wind turbine sound would be most noticeable. It is expected that, at least, 10 to 14 days of continuous monitoring will be required to give a suitable range of data. Typically, this will result in excess of 1440 data points which should be plotted against the appropriate corresponding windspeed data. The windspeed should be monitored on the windfarm site and measured preferably at the WTG hub height. Windspeed should also be monitored over a 10 minute time period and be average values. Having a number of data pairs (windspeed and sound level), the regression curve can be fitted to the data to obtain the function relating the windspeed and the existing background sound level.

Section 5 provided a method for post-installation sound compliance testing:

5.1 Section overview
5.1.1
This section outlines a precise method for the post installation compliance testing of sound from WTGs in the far field, i.e. at distances where the cyclic variations in sound due to blade rotation are no longer discernible. The procedure is based upon the method outlined in 4.5 with the exception that the WTGs will now be operational. Acceptable limits are outlined in 4.4.2.
5.1.2
Once the WTG (or windfarm) is installed and operational, it may be necessary to monitor the sound level in the surrounding area. If so, measurements shall be taken of the sound level, and in addition, consideration needs to be given as to whether there are any special audible characteristics of the sound which may justify analysis and possible application of a penalty which must be taken into account when determining acceptability (see 4.4.3).
5.2 Compliance level testing
(NOTE – The procedure outlined below should be followed whether or not background sound levels have been measured.)
5.2.1
Sound from WTGs shall, where practical, be measured at the same locations where the background sound levels were determined. The method of measurement shall be consistent with the measurement of background sound levels as described in 4.5 with the exception that the WTG (or complete windfarm) will now be operational.
5.2.2
Compliance level testing shall take place at the same positions and across a similar range of wind conditions for which background sound level data has been previously collected.
5.2.3
As with the background sound level measurements, the compliance level testing shall take place at known windspeeds in the range 0 m/s to rated windspeed (typically 13 m/s – 15 m/s) measured at an anemometer height consistent with the background level measurements. As a check on sound levels generated at higher windspeeds, it is necessary to obtain measurements at windspeeds in excess of 15 m/s. For dual-speed WTGs, this shall be above the cut-in speed for the higher generating capacity.
NOTE – WTG sound measurements should be taken over a representative range of windspeeds and directions, each measurement being typically 10 minutes in time duration, as described above for background sound level determination. If typically 1440 data points were collected over the required windspeed range, it would be possible to repeat the regression analysis.
An assessment of any special audible characteristics should be undertaken.
5.3 Special audible characteristics
5.3.1
Sound from a WTG that has special audible characteristics (clearly audible tones, impulses, or modulation of sound levels) is likely to arouse adverse community response at lower levels than sound without such characteristics. At present, there is no simple objective procedure available to quantify special audible characteristics, and subjective assessment is therefore necessary, supported by objective evidence (e.g. frequency analysis) where appropriate.
5.3.2
When sound has a special audible characteristic, the measured sound level of the source shall have a 5 dB penalty applied. This is because the subjective reaction to a sound containing a special audible characteristic is generally found to be similar to a sound 5 dB louder, but without the special audible characteristic. A maximum penalty of 5 dB shall be applied by adjustment of the measured sound level by arithmetic addition of +5 dB.
NOTE – The objective method for determining whether a sound exhibits a tonal character shall be that used in IEC DIS 1400-11 for assessing wind turbine tonal character close to the turbine, i.e. The Joint Nordic Method. The method takes a number of narrow band spectra over a period of 2 minutes and compares the sound level of the tonal frequency to the ‘masking sound level’ in that of a critical band positioned around the tonal frequency. As the method takes the five highest tonal values within the 2 minute monitored period, it automatically considers those cases where the sound level of the tonal frequency is fluctuating.
5.4 Compliance assessment
To determine conformance with the limits set out in 4.4.2, a comparison shall be made between the best fit regression line of the background sound levels and the regression curve of the operational windfarm corrected for any special audible characteristics. If the background levels were not measured prior to installation (4.5.1), it may be necessary to obtain background sound level measurements for limited periods at critical windspeeds to satisfy 4.4.2 (e.g. if wind turbine or windfarm sound levels exceed 40 dBA L₉₅). This may be for a limited range of windspeeds and directions, with the WTG(s) non-operational.

The plaintiffs did not dispute the legal basis for Bald Hills’ submission, but argued that it was more probable that Mr Uren continued to live in the house pursuant to a lease rather than a licence. They submitted that the more common way for someone to occupy and live in a house is under a lease, while a licence is a less usual and more legalistic arrangement.

Although the evidence in relation to this issue is sparse, I am satisfied that Mr Uren leased the house on the southern property from its new owner, Mr Svenson, between March 2016 and December 2018. The two men had a written agreement, under which Mr Uren paid rent to Mr Svenson and was able to continue living in the house. Mr Uren spent a good deal of time elsewhere, but the house remained his principal place of residence until he moved out in December 2018. There was no suggestion that any other person — including Mr Svenson — used or lived in the house before that time. It is more probable than not that the agreement between Mr Uren and Mr Svenson was a ‘tenancy agreement’ for the purposes of the Residential Tenancies Act 1997 (Vic), and that Mr Uren had the rights and duties of a tenant under that Act, including the right to quiet enjoyment of the premises.[132]
[132]Residential Tenancies Act 1997 (Vic), ss 3 – definition of ‘tenancy agreement’, 67, as at 15 June 2015.

Mr Uren had a freehold interest in the southern property until March 2016, and from then until December 2018 he had a leasehold interest in the house on the southern property. He is therefore entitled to damages for nuisance until December 2018.

Issues 18 and 19 – Damages referable to Zakula property

In the alternative to an injunction restraining Bald Hills from continuing the nuisance, Mr Zakula sought damages either for a claimed diminution in value of his land attributable to the nuisance, or for the cost of abating the nuisance. Since I have decided that an injunction should be ordered, it is not strictly necessary to assess this aspect of Mr Zakula’s damages claim. However, I can indicate that, if I had considered damages to be an adequate alternative to an injunction, I would have assessed this head of damage at $200,000.

Mr Zakula relied on the expert opinion of a valuer, Gerald McMahon of CBRE, dated 13 August 2021, to the effect that the continuing noise nuisance reduced the value of Mr Zakula’s property from $850,000 to $650,000. Mr McMahon had been asked to assume the existence of a nuisance in the form of ‘intermittent production of an unreasonable amount of noise and infrasound by the wind turbines’ operated by Bald Hills on the adjoining land.

Based on comparable sales, Mr McMahon considered that Mr Zakula’s land was worth $25,000 per hectare, excluding structures. He valued the house and other buildings at $284,300. A key piece of sales evidence was the price of $12,357 per hectare (excluding structures) obtained for a nearby property at 1080 Buffalo-Waratah Road, Tarwin Lower. Mr McMahon observed:

The distinctive feature of this property is that is has three wind turbines positioned through the middle of the property from which a registered proprietor earns annual income. Whilst, it does provide additional income, the positioning of the turbines precludes a dwelling as there is no unencumbered space inside the recommended 1 kilometre exclusion zone. This limits the appeal of the property to rural/lifestyle purchasers who predominantly buy to reside on the property. Therefore, the purchaser pool in this case, is limited to either adjoining owners or local farmers seeking to increase their overall landholding; or, investors seeking an investment yield from the wind turbines in addition to leasing the property.

The price per hectare for that property was 17.75% less than the sale price of a nearby property at 1255 Walkerville Road, where there were no wind turbines (and hence no rental income from turbines) but where a dwelling could be built outside the one kilometre exclusion zone.

Mr McMahon took into account that the existence of a noise nuisance had been recognised by the Council, and was a matter of public record. He considered that would have a negative impact on the market value of Mr Zakula’s property. He was of the view that a ‘severance factor’ was the most appropriate approach to assessing the impact of the noise nuisance, and further noted that ‘rural lifestyle properties with existing structures such as the subject have only one market that being the occupation of a dwelling in rural setting’.[133] Based on after sales evidence reflecting severance rates of 5.5% to 50%, Mr McMahon applied a severance factor of 25% to the land and the dwelling. This resulted in a valuation of $20,000 per hectare, excluding structures, and a total valuation of $650,000 for land and structures.
[133]Exhibit P30 – Second valuation report of Gerard McMahon dated 13 August 2021, 33.

Most unfortunately, Mr McMahon died unexpectedly, shortly before he was due to give evidence at the trial of this proceeding. His reports were tendered by consent, although his opinion could not be tested in cross-examination.

Bald Hills relied on the expert opinion of a valuer, Damian Kininmonth of Preston Rowe Paterson. In his report dated 2 September 2021, Mr Kininmonth opined that the sales analysis and methodology used by Mr McMahon were unacceptable and inappropriate. I did not understand Mr Kininmonth to dispute Mr McMahon’s valuation of Mr Zakula’s property at $850,000, excluding the effect of the noise nuisance from the wind farm. Rather, he took issue with Mr McMahon’s opinion about the severance factor to be applied. Mr Kininmonth’s main difficulty with Mr McMahon’s methodology was that it measured the impact of not being able to develop (or use) the property as a residential dwelling, rather than the impact of noise or infrasound. He also considered that Mr McMahon had not demonstrated a proper basis for applying a severance factor of 25%. Mr Kininmonth expressed no opinion about the value of Mr Zakula’s property.

In his evidence at trial, Mr Kininmonth agreed that, if I were to find that noise from the wind farm amounted to a nuisance at Mr Zakula’s property, it would affect the value of his property. He accepted that the property would be worth more as a rural lifestyle property, with a habitable dwelling, than as farm land. When pressed, Mr Kininmonth considered that a 17.5% reduction would represent a total loss of use of the property as a lifestyle property.

I accept Mr McMahon’s opinion as to the impact of the noise nuisance on the value of Mr Zakula’s property. There was no question that he was appropriately qualified to express the opinion. He had extensive experience in valuing rural properties. His opinion was based on comparable local sales, and his rationale was well articulated. The conclusions he drew from the sales information for 1080 Buffalo-Waratah Road were particularly persuasive.

I am fortified in this conclusion by Mr Kininmonth’s acceptance that a noise nuisance of the kind I have found to exist would diminish the value of Mr Zakula’s property. The lower severance factor of 17.5% put forward by Mr Kininmonth during cross‑examination did not appear to me to be the result of considered analysis. In particular, it did not take account of the rental income for the wind turbines on 1080 Buffalo-Waratah Road, which enhanced the value of that property. There are no wind turbines on Mr Zakula’s property and no rental income stream of interest to a prospective purchaser.

Had I awarded damages instead of an injunction, I consider that it would have been more appropriate to compensate Mr Zakula for the decline in value of his property, rather than assessing damages by reference to the cost of further soundproofing measures at his house. It would have been a matter for Mr Zakula how he used that money. If he chose to remain living at the property, he could — if he wished — have spent some of the damages award on further soundproofing his house. Mr Mitchell estimated the cost of his recommended soundproofing measures, including an off‑grid energy supply, to be in the range $123,500 to $157,000 plus GST. Alternatively, Mr Zakula could have sold the property and moved away from the wind farm, in which case he would have been compensated for the impact of the noise nuisance on the sale price.

Issue 20 – Damages for distress, inconvenience and annoyance

Both Mr Zakula and Mr Uren claimed damages for distress, inconvenience and annoyance due to the noise nuisance. They submitted that the nuisance was severe and persistent. Their significant distress and annoyance was recorded in their noise logs and diaries, and was observed by their neighbours. They suffered disturbed sleep on many nights, which they said was exhausting and debilitating. By reference to the damages awarded in McFadzean v Construction, Forestry, Mining and Energy Union,[134] to a plaintiff who lost two nights’ sleep, the plaintiffs submitted that a figure of at least $100,000 per year should be awarded to each of them for the period during which they suffered the nuisance.
[134][2004] VSC 289, [2554]–[2559] (McFadzean).

Bald Hills pointed out that the gist of the tort of nuisance is interference with a plaintiff’s enjoyment of their property, and submitted that it is the proprietary, not the personal, loss of amenity that is to be compensated by an award of damages. It argued that in a case such as this, where the nuisance has not caused personal injury or property damage, the basis of any award of compensation for past nuisance is loss of amenity. It referred me to the summary of the relevant principles in Dobson v Thames Water Utilities Ltd,[135] as follows:

(1) That damages awarded for nuisance, where there has been personal discomfort, are assessed on the basis of compensation for diminution of the amenity value of the land rather than damages for that personal discomfort.
(2) That damages for diminution of amenity value are measured by reference to the size, commodiousness and value of the property not the number of occupiers.
(3) That damages for compensation for diminution of amenity value of the land may be reflected either in diminution of capital value or rental value.
(4) That damages for diminution in value frequently raise difficult issues of assessment which can usually be resolved by expert evidence. If such assessment is not reasonable or practicable then the principles on which damages are assessed are sufficiently flexible to do justice between the parties by arriving at a sum for general damages for loss of amenity.

[135][2011] EWHC 3253 (TCC), [1029].

Bald Hills accepted that there are cases in which damages have been awarded for distress, inconvenience and annoyance in nuisance claims which were not assessed by reference to diminution in the capital or rental value of the plaintiff’s property. In each such case the damages awarded were modest. In Stockwell v State of Victoria,[136] the plaintiff was awarded $5,000 for ‘annoyance, inconvenience, distress, upset’ and the steps taken for two winters to keep at bay the wild dogs that constituted the nuisance. In De Gruchy,[137] the plaintiff was awarded general damages in the sum of $15,000 in respect of the noise nuisance suffered for almost a year before she moved out of her apartment. It referred me to a number of other modest awards of general damages in comparable nuisance or negligence cases. On that basis, it said that any award of damages for distress, inconvenience should be in the order of $10,000 per year for each plaintiff.
[136][2001] VSC 497, [479]–[484] (Stockwell).
[137]De Gruchy, [165]–[171].

Consideration

I accept Bald Hills’ submission in relation to this aspect of the plaintiffs’ claim.

The tort of nuisance is concerned with interference with the enjoyment of land, which is why only a person with an interest in the land is entitled to a remedy for nuisance. In a case where the nuisance has not caused personal injury or property damage, it is the loss of amenity that is to be compensated. Lord Hoffman explained it well in Hunter v Canary Wharf Ltd:[138]

In the case of nuisances ‘productive of sensible personal discomfort,’ the action is not for causing discomfort to the person but … for causing injury to the land. True it is that the land has not suffered ‘sensible’ injury, but its utility has been diminished by the existence of the nuisance. It is for an unlawful threat to the utility of his land that the possessor or occupier is entitled to an injunction and it is for the diminution in such utility that he is entitled to compensation.
… [D]iminution in capital value is not the only measure of loss. It seems to me that the value of the right to occupy a house which smells of pigs must be less than the value of the occupation of an equivalent house which does not. In the case of a transitory nuisance, the capital value of the property will seldom be reduced. But the owner or occupier is entitled to compensation for the diminution in the amenity value of the property during the period for which the nuisance persisted. To some extent this involves placing a value upon intangibles. But estates agents do this all the time. The law of damages is sufficiently flexible to be able to do justice in such a case …

[138]Hunter, 706. See also 724–5 (Lord Hope).

Here, Mr Zakula and Mr Uren were never sure that they would be able to sleep in their own beds without being woken or kept awake by wind farm noise. There have been hundreds of occasions on which Mr Zakula’s sleep has been disturbed, and a smaller number of nights on which he could not sleep at all. Mr Uren’s sleep was disturbed by noise from the wind farm on at least 100 occasions before December 2018. At times, both men slept away from their homes. Mr Zakula spent the occasional night in his car at Walkerville beach, and Mr Uren spent longer periods staying with friends. This undoubtedly diminished the utility of their respective interests in their land. The value of living in a home in which one’s sleep is intermittently disrupted is plainly less than the value of a home where a good night’s sleep can be expected.

While it is not easy to place a value on this intangible loss, I have concluded that each plaintiff should be awarded damages for past loss of amenity in the amount of $12,000 per year — or $1,000 per month. This amount is consistent with the amounts awarded for comparable losses of amenity in Stockwell and De Gruchy.

The plaintiffs’ reliance on McFadzean was misplaced, because that case did not involve a claim of private nuisance. The relevant plaintiff was awarded damages for the tort of intentional infliction of harm,[139] including by sleep deprivation. She was awarded $2,250 for physical injury, in the form of a migraine suffered after the defendants substantially deprived her of sleep over two consecutive nights.[140]
[139]Described in Wilkinson v Downton [1897] 2 QB 57.
[140]McFadzean, [2552]–[2559]. Another plaintiff whose passage along a public road was obstructed was awarded $7,500 for public nuisance: see [2593]–[2605].

On that basis, I assess damages for past loss of amenity for Mr Zakula for seven years from June 2015, when he was first disturbed by noise from the wind farm, to June 2022, when the injunction will take effect, at $84,000. I assess Mr Uren’s damages for past loss of amenity over three years and ten months, from March 2015 to December 2018, at $46,000.

Issue 21 – Aggravated damages

The plaintiffs also sought aggravated damages, on the basis that Bald Hills knew or ought to have known that it was causing an unlawful nuisance. It was common ground that aggravated damages are compensatory, and may be awarded when the harm done by the defendant’s wrongful act was aggravated by the manner in which it was done.[141] While Bald Hills drew attention to historical doubts as to whether aggravated damages were available for nuisance,[142] it accepted that they could be awarded in an appropriate case, for example where the defendant’s conduct was ‘of such a high-handed nature that it merited aggravated damages’.[143]
[141]Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, 149 (Windeyer J).
[142]Referring to Willoughby Municipal Council v Halstead (1916) 22 CLR 352; Oldham v Lawson (No 1) (1976) VR 654, 658–9.
[143]Stockwell, [615]. See also De Gruchy, [181]–[182], [216].

In my view, Bald Hills’ conduct towards Mr Zakula and Mr Uren has been of that nature. They both repeatedly complained that noise from the wind turbines at their homes was disturbing their sleep. Mr Uren first complained in May 2015, while Mr Zakula did not formally complain until September 2015. Bald Hills never responded to either man’s complaints by trying to reduce wind turbine noise at their homes. Rather, it denied that they had any cause for complaint, minimised their lived experience of the noise, and treated them as hypersensitive trouble-makers. In 2017, it accepted and relied on MDA’s patently absurd conclusions that it was quieter at both properties after the wind farm started operating. The evidence of both Mr Zakula and Mr Uren left me in no doubt that, over time, they found the lack of any remedial action by Bald Hills to be frustrating and deeply discouraging. I accept that this compounded the effect of the noise nuisance that intermittently kept them awake at night.

When Mr Zakula, Mr Uren and others took their concerns to their local council, Bald Hills engaged lawyers and consultants who flooded the Council with submissions and reports that did not engage with the substance of the complaints.[144] After the Council determined that the wind farm noise was causing an intermittent nuisance at properties including Mr Zakula’s and Mr Uren’s, Bald Hills sought judicial review of the Council’s resolution in this Court. The litigation, while ultimately unsuccessful, was a source of stress for both plaintiffs. Mr Uren found it terribly upsetting, and felt that Bald Hills was ‘treating the little people like rubbish’.[145] Overall, Bald Hills’ response to the complaints to the Council was strikingly disproportionate, and did nothing to mitigate the noise nuisance at the plaintiffs’ homes. I am satisfied that it further aggravated the loss of amenity suffered by both plaintiffs in their homes.
[144]See Bald Hills No 1, [88]–[96], [111]–[115].
[145]Transcript, 10 September 2021, 373:13–16.

The vigour with which Bald Hills disputed the complaints to the Council would have been better directed to finding a solution to the gearbox tonality issue first identified by MDA in December 2016. MDA advised Bald Hills at that time that it should identify an engineering solution to mitigate tonal emissions for specific turbines, rather than continue to rely on noise optimisation to achieve compliance. It is yet to do so. Its delay in finding a solution is largely unexplained, it being unclear why nothing was in place before Senvion went into voluntary administration in April 2019. Bald Hills’ ongoing failure to fix the known tonality issues in turbines 16 and 23, closest to Mr Zakula’s house, amounts to seriously high-handed treatment of him.

At one point during cross-examination of Mr Zakula, counsel for Bald Hills put to him that ‘give and take’ is important between neighbours.[146] While that is undoubtedly true, it is difficult to see what Bald Hills has given in response to Mr Zakula’s complaints over a period of more than six years. Mr Arthur’s belated offers in December 2020 and March 2021 to discuss acoustic treatments at Mr Zakula’s property were, as I have found, not well directed. A reasonable neighbour would have tried to reduce the noise; Bald Hills has not.
[146]Transcript, 9 September 2021, 272:3–11.

I consider that the manner in which Bald Hills has dealt with the plaintiffs’ reasonable and legitimate complaints of noise has, over many years, at least doubled the impact of the loss of amenity each of them has suffered at their homes. On that basis, I award aggravated damages of $84,000 to Mr Zakula, and $46,000 to Mr Uren.

Issue 22 – Exemplary damages

The plaintiffs also sought a substantial award of exemplary damages, contending that Bald Hills had acted in contumelious disregard of their rights to sleep peacefully in their own homes. They submitted that Bald Hills should be punished for its conduct, in order to deter repetition of the nuisance by it, and to stand as a warning to other noise producing businesses, in particular wind farm operators.

I do not agree that Bald Hills’ conduct has been of that order. Throughout, it has sought and relied on the advice of acoustic experts in relation to the noise emitted by its wind turbines. Their advice has consistently been that the noise levels have complied with the permit conditions, including at the plaintiffs’ homes. As I have found, that advice was based in part on incorrect interpretations of the NZ Standard and condition 19(c) of the permit. While that is regrettable, it is not something for which Bald Hills should be punished. I consider that Bald Hills could have read MDA’s reports more critically — in particular the 2017 noise assessments at Mr Zakula’s property and Mr Uren’s property — but its failure to do so does not amount to conscious wrongdoing.

I remain troubled by Bald Hills’ failure to fix the gearbox tonality issue first identified in the MDA December 2016 report, considered against the way in which it responded to the plaintiffs’ noise complaints. On balance, I have concluded that this concern is met by the awards of aggravated damages, and does not warrant any further mark of the Court’s disapproval.

There will be no award of exemplary damages.

Issue 23 – Proper measure of loss and damage

In summary, the proper measure of Mr Zakula’s loss and damage is $168,000, comprising $84,000 for past loss of amenity, and an additional $84,000 for aggravated damages. Had I not decided to grant an injunction requiring Bald Hills to abate the nuisance, I would also have awarded Mr Zakula $200,000 as compensation for the reduction in value of his property as a result of the nuisance.

The proper measure of Mr Uren’s loss and damage is $92,000, comprising $46,000 for past loss of amenity, and an additional $46,000 for aggravated damages.

DISPOSITION

There will be judgment for the plaintiffs in the following terms:

(a) Bald Hills will be restrained from continuing to permit noise from wind turbines on the wind farm to cause a nuisance at Mr Zakula’s house at night, and will be required to take necessary measures to abate the nuisance.

(b) The injunction will be stayed for three months.

(c) Bald Hills is to pay damages to Mr Zakula in the sum of $168,000, comprising $84,000 for past loss of amenity, and $84,000 for aggravated damages.

(d) Bald Hills is to pay damages to Mr Uren in the sum of $92,000, comprising $46,000 for past loss of amenity and $46,000 for aggravated damages.

I will hear the parties on the questions of interest and costs.

September 3rd 2016	0700hrs	All night
September 4th	0600hrs	All night
September 8th	0600hrs	All night
September 9th	0600hrs	All night
September 14th	0700hrs	All night
September 18th	0400hrs	All night
September 19th	0500hrs	All night
September 21st	0700hrs	All night
September 24th	0400hrs	All night
September 30th	0600	All night

[2022] VSC 145

25 March 2022