Sentinel-Times, 12th June 2019
Testing failures a threat to Bald Hills Wind Farm
A new fight is brewing over noise monitoring, or the lack of it, at the $300 million Bald Hills Wind Farm at Walkerville.
And according to the lawyer representing neighbours affected by nuisance noise levels from the plant, Dominica Tannock of DST Legal in Abbotsford, it’s a dispute that has the potential to completely shut the facility down.
Ms Tannock says the owner/operators of the plant, Bald Hills Wind Farm Pty Ltd (Infrastructure Capital Group), removed their noise monitoring equipment from sensitive sites, at the neighbours’ properties, in July 2018, but claims credible monitoring, undertaken in recent times by acoustician Dr Bob Thorne of Noise Measurement Service, found the plant to be consistently non-compliant with the conditions of its planning permit. In fact, she says Dr Thorne’s report shows that Bald Hills can never achieve compliance.
The findings tie in with a decision by the South Gippsland Shire Council (March 27, 2019) “that council is satisfied that there exists a nuisance of the kind alleged by the complainants, for the following reasons: (a.) the credible and consistent character of the noise logs provided by the complainants and/or the complaints made by the complainants about sleep disturbance and the injury to their personal comfort; (b.) the conclusions of the Smith Report; and (c.) the weight of the other evidence presented to councillors suggests the existence of a nuisance.” Council went on to say the nuisance “exists only intermittently” and has encouraged the parties to settle the matter privately, which they are now endeavouring to do. A Bald Hills Wind Farm spokesperson said at the time it was “disappointed” with the finding and “entirely rejects the South Gippsland Shire Council’s decision to support a nuisance allegation under the Public Health and Wellbeing Act 2008 (Vic) (PHWA)”.
“Based on the ample evidence provided to council during its investigation, it is our position that the only course reasonably available to council was to find that there is no nuisance within the meaning of the PHWA,” the spokesperson said.
“Whilst the wind farm acknowledges the difficulties faced by the council in coming to this decision, extensive monitoring and analysis has demonstrated compliance with the wind farm’s planning permit, granted by the State Government of Victoria.”
Despite objecting to the council’s decision of March 27, BHWF Pty Ltd failed to officially challenge the ruling within 60 days, so council’s decision now stands. However, while those breaches relate to the Public Health and Wellbeing Act 2008, for which the council is the responsible authority, it is under the Planning and Environment Act 1987 that the local farmers are now seeking redress.
The findings of the Thorne report have been rejected by Christophe Delaire, an engineer at Marshall Day Acoustics, the firm contracted by the wind farm operators to monitor noise levels.
As a result, Ms Tannock and her clients, among them six families in the Walkerville area, have challenged the operators to prove that their facility is compliant with its planning permit, once and for all, by jointly commissioning the collection of noise data and publishing a fully independent report.
The offer was declined by the lawyers for BHWF Pty Ltd, Allens Linklateron, on Monday, May 27, so the neighbours of the plant have advised that they will proceed with the appointment of Sonus Pty Ltd to carry out three months of continuous noise testing at the affected neighbours’ properties, between June 1 and August 31.
The results will be audited and presented to the Minister for Planning, Richard Wynne, for his consideration and determination of compliance with the permit, and also the effectiveness of the noise curtailment strategy that has been put in place at Bald Hills.
“Two weeks ago, I wrote to the operators’ lawyers saying that in making the finding of nuisance, the South Gippsland Shire Council relied on a legal opinion from Paul Connor QC that there is conflicting evidence and at least some doubt raised by the assessments of Mr Hudson, Dr Thorne and Dr Broner as to whether the Bald Hills Wind Farm operates in compliance with its permit,” said Ms Tannock.
In the letter to BHWF Pty Ltd, she went on to say that “it is not possible without having the evidence of all acoustic experts tested to make definitive conclusions about planning permit compliance in this case”.
Ms Tannock acknowledged that while Dr Thorne’s assessment coincides with some of the time period used by Dr Smith (council’s consultant), the period differs from the assessments conducted by Marshall Day. The only way to sort it out is with new testing endorsed by both the operators and the neighbours.
But BHWF Pty Ltd has declined to be involved.
“The operators have continued to report compliance to the Minister even though it has not tested noise at my client’s properties for over a year now,” said Ms Tannock, noting that the neighbours are continuing to register complaints about high noise emissions to the authorities.
She said her clients were “adamant that BHWF is non-compliant with the relevant permit conditions based on their testing” and have accused the operators of “misreporting its compliance status to the Minister”. “They have an on-going requirement to report compliance with their permit but how can they do that when they have withdrawn their testing equipment from several sensitive locations,” Ms Tannock said.
She said there were problems with wind farms right across Victoria making people sick, interfering with neighbours’ rights and enjoyment of their land and it was high time the Minister got serious about compliance.
The Sentinel-Times contacted BHWF Pty Ltd for a comment, but they effectively declined to respond: “Thank you Michael for giving the Bald Hills Wind Farm the opportunity to consider responding on the various alleged developments regarding the Council’s noise finding and its recommendation that the parties try to settle the matter. We don’t think this process is aided by airing speculative views through the media. This is a complex matter, and, on this basis, we decline to comment on the issues you’ve raised and remain committed to seeking a right and fair outcome either through mediation or the legal system.”
The issue continues to dog the South Gippsland Shire Council.
As late as Wednesday, May 29, they considered further legal advice about Bald Hills as “a matter of urgency in a closed council session after the recent Ordinary Council Meeting, the outcome of which remains confidential.