Two resident neighbours of the wind farm, Noel Uren and John Zakula, sought remedies for a common law nuisance. Mr Zakula and Mr Uren told the Court that the noise emitted from the wind turbines had disturbed their sleep hundreds of times since the wind farm began operation. Mr Zakula presented evidence that on numerous occasions he had slept in his car at the local beach to escape the noise.
Accordingly, her Honour, Richards J, decided that the noise from the turbines caused a substantial interference with Mr Zakula and Mr Uren’s enjoyment of their land. Specifically, she stated that it disturbed their sleep at night in a way that was substantial albeit intermittent. She ordered Bald Hills to pay a total of $260,000.00 in damages to Mr Zakula and Mr Uren, being an amount of $1000 per month each for the period that they lived in their homes and were disturbed at night by the wind farm, and an equal amount as aggravated damages for the wind farm operator’s failure to appropriately address their repeated complaints.
Interestingly, the Court concluded that while the plaintiffs may have been annoyed by the sound of the wind farm during the day, this did not substantially interfere with their enjoyment of their properties and did not amount to a nuisance.
Further, the Court determined the nuisance was only caused intermittently (when the wind blew from particular directions in particular weather conditions, and when particularly distinctive sounds were emitted due to a gearbox tonality issue). As such, the wind farm noise in general was not in itself a nuisance.
The Planning Permit
Richards J deemed that Bald Hills did not demonstrate compliance with condition 19 of its planning permit which provided that the wind energy facility must comply with the New Zealand Standard for the Assessment and Measurement of Sound from Wind Turbine Generators (‘NZ Standard’).
Specifically, Bald Hills did not demonstrate that it complied with condition 19(a) of the permit (which imposed requirements for sound levels emitted from the wind farm) at either of the plaintiff’s houses, as the background noise measurements and compliance measurements were made at other nearby properties. Further, the Court held that Bald Hills did not demonstrate compliance with condition 19(c), which set out a hard measure for protecting sleep using night time data, as the Court interpreted the condition to require the assessment of noise compliance on individual nights, rather than assessment of average noise levels. Her Honour also concluded that while the presence of tones had been appropriately assessed and the 5dB penalty had been appropriately applied, Bald Hills had not adequately assessed the wind farm’s noise impacts for impulses and amplitude modulation.
Relevance of Permit Compliance
The Court concluded that demonstrating 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 the plaintiffs’ sleep was reasonable. The Court took the view that the NZ Standard only sets a limit on the extent to which wind turbine noise may increase continuous underlying noise levels, assessed over a long period, and is not directed to intermittent loud noise from wind turbines. As the NZ Standard (and permit conditions that enforce it) do not provide a way of assessing whether a wind farm produces unreasonably annoying noise in certain weather conditions, or on a particular night, it is open for a Court to find that a ‘compliant’ wind farm is still causing a nuisance at certain times.
Nevertheless, the Court did acknowledge that if Bald Hills had established that it had complied with the noise conditions of the NZ Standard and condition 19 at the plaintiffs’ houses in this case, this would have lent weight to Bald Hills’ defence argument that the noise from the wind farm was at a reasonable level at both locations.
Key Takeaways
- Permit compliance will not necessarily be determinative of whether or not a nuisance claim will be made out.
- Noise nuisance can be caused by substantial interference with a neighbour’s enjoyment of their home that is not reasonable in the circumstances. Failure to promptly address noise issues when they are identified will most likely support a view that the interference is unreasonable.
- The social utility brought about by windfarm does not outweigh the importance of “a good night’s sleep for its neighbours”.
