A Guide to Seeking Damages From Wind Energy Project Owners/Operators

The Purpose of This Document/Post.

 Whilst DeFrock writers and editors independently research topics of interest, in many cases they come across documents written by others that are appropriate to the subject.

This particular document was originally prepared for discussions with the Australian National Wind Farm Commissioner and owners of wind turbine projects (WTPs) considered by their neighbours to be problems.

It is intended to give some broad guidance to neighbours of WTPs on the construction of a financial claim for damages.

Cause of Damage

Wind turbines emit airborne (sound) and ground-borne (vibration) pressure waves. Much is known about sound waves (the audible portion of which is identified as noise) and their ability to harm and disturb neighbours up to 10 to 12 km from turbines. It is also known that vibration can also be a factor in disturbance, but at this point, it is low frequency sound and ultra-low frequency sound (infrasound), particularly where amplitude modulation is present, that causes most damage.  It is amplitude modulation, pulsing at an infrasonic rate¹.

The airborne pressure pulses which emanate from wind turbines cause physiological and psychological damage to individuals in different ways and at different intensities (some individuals are unaffected).

In time the body can become increasingly sensitised and ultimately permanently damaged.  Homes become uninhabitable and very difficult to sell. Residents become trapped in unsafe locations.

A second form of damage is productivity of farm animals and the possibility that farm strategies and processes have had to be changed.

However the principal matters of damage are family health and well-being, and the habitability of the family residence.

Constructing a Financial Claim

Preparing a claim will need the help of a lawyer and a property valuer. To help your lawyer prepare and substantiate the claim he or she could start by referring to the Waubra Foundation,[1] Stop These Things websites and information on this site.

The following components and indicative numbers have been prepared on the “a reasonable person would think that” basis.

First, the major element is the sale of your house to the WTP owner or to an entity chosen by them. The price asked should not be a present valuation, i.e., with turbines present; but the price that the property would be worth if there was no WTP in the area. This will involve briefing a first class valuer. Your lawyer will advise whether a second valuation should be sought.

Second there should be an add-on for the disturbance of having to move to another dwelling, which might be say, a 10% to 20% premium to the property price.

Third there should be a refund of all the property replacement expenses such as valuation, stamp duty, legal documentation and conveyancing, and direct moving expenses.

Fourth is compensation for the damage and hurt caused by living in the dangerous and harmful environment for the period since the project was commissioned. It is suggested this compensation should be calculated by multiplying the number of persons living in the house by the number of years the damage has been endured and then by a dollar sum per person per year. Note that there is plenty of evidence of damage, some permanent, to neighbouring residents. publishing

This dollar sum will depend on the severity of disturbance which generally will correlate with the separation between the house and the nearest turbines, and educated guesses on what courts would award, then discounted for the risk and expense of going to court.

 A Suggested Scale For Assessing Damage or Nuisance

Condition

$/Person/Year

Forced to evacuate the home 150,000 to 200,000
Forced to live away as much as possible 100,000 to 150,000
Major discomfort 50,000 to 100,000

 If you wish to make a claim then consider where your family sits in the above categories and be sensible in selecting that rating.

Should You Engage a Lawyer?

Yes. A lawyer is required to draft your claim and to be present and to manage negotiations with the WTP involved. Some lawyers have experience in dealing with project owners.

Should You Join With Others Affected by the Same Wind Project?

Yes; provided they are willing to pay their share of costs and will be rational, particularly not wanting to rank themselves at a higher level of damage than is reasonable, and will act together and not deal behind your back. Combining with others will, of course, reduce the cost of hiring a lawyer to draft and present your claim.

The National Wind Farm Commissioner

 Experience has shown that engaging with the Wind Farm Commissioner in discussions with the owner of the offending wind project is a waste of time. If he calls you refer him to your lawyer.

Beware Inappropriate Confidentiality Agreements

In settling problems in the past the industry used “gag “clauses, which are designed to stop other claimants from knowing what is possible. Your lawyer can advise on this matter. DeFrock thinks that as much disclosure as possible will bring about uniform understanding between claimants and quicker resolutions.

What About Court Action?

 It is in the interests of both parties to negotiate a fair settlement.

Court actions are expensive and there is a risk of losing and having to meet the costs of the other side.

On the other side there is much evidence that would be exposed in a court action by a skilled barrister that could be hugely damaging to the wind company and, indeed, the whole industry. The industry knows that and will not be keen to take that course.

Even with the “help” of the Wind Commissioner, attempts at reaching out of court settlements have failed, with major wind companies offering nothing that could be considered acceptable. Not only that, but brutally noting that a court action is beyond the financial capacity of a complainant and that if the wind company wins, costs will fall to the complainant.

DeFrock understands that at least one group and more likely two, have ridden out the threats and are proceeding to Court in Victoria to force a settlement.


¹ Cooper-SA.-Wind-farm-infrasound-Are-we-measuring-what-is-actually-there-or-something-else

[1] refer to the Waubra Foundation website for information on current research, health impacts caused by infrasound, low frequency noise and vibration, and other legal cases.

https://waubrafoundation.org.au/

 

 

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