Supreme Court says Bald Hills ‘Nuisance’ Decision Stands

Excerpts from Supreme Court of Australia Ruling on the Bald Hills Wind Farm 

Common law nuisance

66. It was common ground that a ‘nuisance’ for the purposes of Pt 6, Div 1 of the Wellbeing Act is a nuisance at common law. While this encompasses both private and public nuisances, this case is concerned with complaints of private nuisance; namely, that noise from the wind farm is interfering with the complainants’ use and enjoyment of their land. To constitute a nuisance, the interference must be both substantial and unreasonable:

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.

67. Whether an interference is substantial is a question of fact. 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. While it does not extend to a trivial interference, or protect those of ‘delicate or fastidious’ habits, it does include an interference that disturbs an occupier’s sleep.

68. 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.

Download the Supreme Court ruling →20200818 Bald Hills Wind Farm Pty Ltd v South Gippsland SC 2020 VSC 512

Read a report on the ruling by the South Gippsland newspaper, Sentinel-Times → https://sgst.com.au/2020/08/supreme-court-says-bald-hills-nuisance-decision-stands/

Read ABC News Gippsland coverage of the Judgement →https://www.abc.net.au/news/2020-08-20/gippsland-landmark-legal-win-over-bald-hills-wind-farm/12572498