Supreme Court decision on wind farm noise emissions resonates in Ontario

April 16, 2022

A Supreme Court in Australia has found in favour of residents who filed legal action against a local wind “farm” on the grounds that the noise emissions from the turbines at the Bald Hills facility constituted a “common law nuisance.”

A local health council found in 2019 that the residents were indeed the subject of nuisance noise emissions but the wind power operator then sought a judicial review. That was dismissed in 2020.

Last year, two residents filed legal action against the wind power operator, claiming that the wind turbine noise from the 52-turbine power project caused sleep disturbance and health problems. They sought remedies for the situation in the form of damages, and direction that the noise be halted. One of the residents was actually sleeping in his car to get away from the wind turbine noise.

In a decision released this past March, the Supreme Court of Victoria found in favour of the residents and ruled that there had indeed been noise nuisance that was both substantial and unreasonable.

The court decided to award damages in the amount of $260,000 Australian to the plaintiffs, and prescribed an injunction preventing noise emissions at night in future.

According to a summary of the case by Australian law firm Hall & Willcox, management of noise complaints was a key finding in the court decision.

In the case of Bald Hills, many complaints had been filed with the company, but it took no remedial action.

From the Hall & Willcox summary:

“Findings on key issues in dispute were as follows:

Did noise emissions cause a substantial and unreasonable interference with the plaintiff’s use and enjoyment of their land?

Noise from the turbines on the wind farm amounted to ‘a substantial, albeit intermittent, interference with the acoustic amenity of the plaintiff’s properties at night’.

The evidence showed that Mr Zakula’s sleep was disturbed on hundreds of occasions and Mr Uren’s sleep on around one hundred occasions between 2015 and 2018. The interference was ongoing for Mr Zakula;

Were noise emissions in compliance with the noise conditions in the permit held by Bald Hills Wind Farm?

The Court held that the operator had 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.

Although the wind farm operator argued that it complied with its permit, the court was critical of the measurement techniques used by the wind farm’s noise consultants, stating:

‘(the) 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’ “

The court also took issue with the methodology used to assess noise complaints, when the company did respond to the hundreds of complaints received.

From Hall & Willcox:

“The Court was also critical of the consultant’s methodology for determining compliance and their interpretation of the NZ Standard including in relation to:

• the measurement of background noise levels at the complainants’ dwellings by reliance on measurements at nearby dwellings and the fact that the measurements were taken during the construction of the wind farm and may have been higher due to construction noise;
• the approach to determining the sound level of the wind farm at the receptor site by subtracting background sound levels recorded at the relevant location from operational sound levels recorded at the same location, criticising that the operator’s witness had incorrectly interpreted this to mean that they could filter out to measure ‘wind farm only’ sound;
• the assessment of night-time operational noise compliance; and
• the assessment of whether or not special audible characteristics were present for the purpose of applying the 5 dBA penalty.”

“Noise from the turbines on the wind farm has caused a substantial interference with both plaintiffs’ enjoyment of their land.“

According to a news story while the trial was going on, a manager with the wind power operator, the Infrastructure Capital Group, told the court he had been aware of tonality in the turbine noise emissions since 2017, having been alerted to the problem by the acoustics consultants employed by the operator. Worse, apparently turbine manufacturer Senvion discovered a flaw with the turbines and paid the Bald Hills operator money to fix the problems. The company did not do that, and did not alert the people complaining of noise.

So, what’s the relevance for Ontario, where the government has almost 7,000 formal noise pollution Incident Reports filed by people living near wind turbines between 2006 and 2018? (Source: Wind Concerns Ontario, data from Freedom of Information requests. ) Where complaints about noise simply result in testing, testing and more testing, with little enforcement of the regulations? And the noise measurement methodology has been roundly criticized?

More than 50 percent of Ontario’s operating wind power projects do not have an accepted acoustics audit to verify compliance with noise regulations.

Again from lawyers Hall & Willcox:

“The Court’s decision, while hailed as a victory for opponents of wind farms, presents numerous challenges for the established practices at many existing and previously permitted wind farms including:

• how to distinguish a ‘reasonable’ noise complaint that arises from a nuisance from a complaint that has no basis and how to then determine when it is appropriate to implement noise mitigation measures to seek to resolve a complaint.
• whether more conservative noise limits should be applied in order to minimise the risk of nuisance claims, despite the permissible noise limit allowances in existing permits granted at the time of the development of the wind farm.
• the need to review past methodologies applied to the measurement of compliance, including locations for testing, objective assessment of SACs and determination of background noise levels.
• the need to constantly review and improve on community and complainant relations to avoid the risk of being labelled ‘high handed’ and consequent awards of aggravated damages in future nuisance claims.”

As Ontario is now calling for proposals for 1,000 megawatts of new power generation in 2022, the existing problems with Ontario’s wind turbines need to be resolved.

contact@windconcernsontario.ca