Noise Nuisance – Windfarms


Last week, the Victorian Supreme Court again addressed a case concerning noise nuisance in Dridan v Stockyard Hill Wind Farm Pty Ltd (“Dridan”).[1]

The case concerned the operation of a commercial wind farm in Stockyard Hill, near Ballarat, from July 2021, and the impact of the emission of sound, infrasound or vibrations on six parcels of land affecting several plaintiffs, located near the windfarm.

The plaintiffs’ land was used to conduct farming businesses, which like many well-conducted farming businesses, were arranged in such a way that the land was registered in the name of a company as trustee for a trust. So, while each relevant parcel of land was owned by a trustee, some were occupied by individual family members, who lived in homesteads on the properties, and others were occupied by the operators of various farming businesses.

In Dridan, the identity and status of the thirteen plaintiffs was important [4]. Originally, only a subset of plaintiffs commenced the proceeding. By a series of amended pleadings, the plaintiffs sought to address the fact that, of the six parcels of land affected, five were not owned by the individual plaintiffs who lived on them, but by the corporate trustees [3]. Among other things, the plaintiffs sought to plead a set of alternatives – e.g., if the corporate plaintiffs had possession, their possession had been interfered with; alternatively, if the residents had possession, their personal possession and use had been interfered with [42].

The Court observed [4] that the choice of alternative may be relevant because:

[…] the nature of the injuries which are compensable and the remedies available differ according to whether the plaintiff is a natural person or a corporation.  For example, while conduct amounting to nuisance may affect a corporation’s ‘use’ of the land in question, that conduct would not generally affect the corporation’s ‘enjoyment’ of the land.  Further, an injunction is generally not available to a corporate plaintiff, on the basis that it can be presumed that any damage to its interest in the relevant land caused by a nuisance can be compensated by money.  On the other hand, a nuisance may adversely affect a natural person’s enjoyment of the land, and an injunction is an available remedy.

Claims by the individuals included loss of amenity (distress, inconvenience, annoyance and upset) and sought injunctions to stop the nuisance.

Claims by the trustees concerned capital loss, i.e. loss in land value and a loss of amenity relating to land access. This claim was essentially for damages.

The windfarm defendants sought orders to strike out certain individual plaintiffs, arguing that, although the civil procedure rules permitted a party to plead inconsistent facts in the alternative, a pleading of inconsistent sets of facts will be regarded as embarrassing and liable to be struck out if it can be demonstrated that the falsity of one of the pleaded alternatives must be known [19].[2] On this submission, Daly AsJ concluded [55] that it was not necessary for the defendants ‘to establish actual knowledge on the part of the plaintiffs of the falsity of one of their pleaded alternative cases’ and that it was sufficient ‘to establish that the plaintiffs […] know or must know which of their proposed alternative cases is correct.

The plaintiffs’ counsel argued that the question of “possession” and therefore “exclusive possession” was a mixed question of fact and law and, because of this, where it was not clear what the proper legal conclusion from those facts, it was appropriate to advance a set of two possibilities as alternatives for decision at the final hearing. On this submission, Daly AsJ concluded [54] that ‘the fact that what amounts to exclusive possession is a question of mixed fact and law does not preclude the operation of the rule against the maintenance of inconsistent allegations: after all, allegations of mixed fact and law are commonplace.

Associate Justice Daly held that the plaintiffs’ pleading fell foul of the rule prohibiting the pleading of inconsistent allegations, particularly ‘in circumstances where the plaintiffs either know, or should be taken to know whether they or the corporate entities associated with them have exclusive possession of the homesteads’ [45].

Considering the question of the plaintiffs’ knowledge of “possession”, Daly AsJ noted [46] that:

  • while individual plaintiffs may not know, their subjective state of mind is not the end of the matter;
  • who operated the farming business on the land, and whether those business were operated from the homesteads, appeared to be a matter within the plaintiffs’ knowledge; and
  • the trust deeds probably made apparent whether it was permissible for the corporate plaintiffs to allow the individual plaintiffs to have exclusive possession of the homesteads;
  • [62] even where an individual plaintiff has possession, a corporate plaintiff may still hold a residual interest capable of supporting a claim in nuisance.

Thus, Her Honour found that the matter of possession need not wait for the hearing and, instead required the plaintiffs to elect whether the individuals or the corporate plaintiffs would bring the claims, orders requiring these elections to be finalized by April 2024.

Cameron Algie, B.A., B.Mus., L.L.B.(Hons)
Dr Leonie Kelleher OAM, B.A., L.L.B., Dip.TRP, MEI, PhD.

13 March 2024

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[1] [2024] VSC 91.

[2] Citing Mulivai v Utaileio (2022) 11 QR 797.