Protecting noise monitoring reports on wind farm projects from compulsory disclosure

Expert reports on acoustic and other environmental issues are critical for developers of renewable energy projects. They assist in measuring compliance with regulatory approvals and aid in the consideration of strategies for obtaining and managing social licence. However, these reports and related correspondence might contain information that could be used against project developers in future legal proceedings.

This is a live issue on wind farm projects. Recent judicial developments have found that noise emanating from wind farms can constitute private nuisance and that knowledge of those issues can, if disregarded by developers, justify a claim for aggravated damages.

Therefore, it might pay to look ahead and consider potential legal risks when engaging experts to prepare noise monitoring reports on wind farm projects. This article considers steps to mitigate this risk in the context of the Berrybank Wind Farm located 80 km west of Geelong, Victoria. The developers of this project were recently forced to defend requests for disclosure of all acoustic reports and related correspondence procured for the project in the Supreme Court of Victoria.

Project and legal context

The developers of the Berrybank Wind Farm, a $284-million investment for parent company Global Power Generation Australia, are currently defending a nuisance claim by neighbouring landowners in the Golden Plains Shire. The landowners allege that a failure by the developers to mitigate noise emanating from the turbines has caused a substantial interference with the landowners' use and enjoyment of their land. This reflects a well-established line of argument used by neighbouring landowners who are dissatisfied with the proximity of turbines to their land.

In a recent decision by Justice Forbes in Baxter v Berrybank Development Pty Ltd [2025] VSC 582, the developers were ordered to disclose draft reports and related correspondence with an expert engaged to prepare acoustic reports, including a report provided as part of an application to extend development approvals and other compliance reports prepared after construction commenced. It is likely that the landowners hope to use this material to demonstrate that the developers had knowledge of the impacts suffered by them. This might be relevant in assessing whether the developers acted reasonably by failing to mitigate those impacts which will inform their exposure to pay the landowners aggravated damages should the claim for private nuisance be substantiated.

Such an outcome arose in Uren v Bald Hills Wind Farm Pty Ltd [2022] VSC 145. In that case, neighbouring landowners were successful in establishing private nuisance due to the noise of the turbines on a wind farm in South Gippsland, Victoria. The landowners secured orders which restricted the wind farm's operations and were also awarded aggravated damages.

Practical tips to mitigate risks through legal professional privilege

The risk of nuisance claims, and their potential impacts on the long-term financial viability of wind farm projects, offer compelling reasons for the early involvement of legal counsel, whether in-house or external, to provide advice on these issues. Such advice can involve the procurement of expert noise monitoring reports which, if for the dominant purpose of obtaining that legal advice, can be protected by legal professional privilege and not subject to compulsory disclosure in subsequent legal proceedings.

Legal professional privilege is a powerful right which protects from disclosure confidential communications between a lawyer, a client and an expert where those communications were prepared for the dominant purpose providing legal advice or for use in actual or anticipated litigation. Even if the expert's final report is later disclosed to other parties, if that disclosure is carefully managed, the confidential communications between the lawyers and the expert may remain privileged and not be subject to compulsory disclosure in subsequent proceedings.

Examples of where legal privilege can protect expert reports and related correspondence includes where the expert is engaged for the dominant purpose of obtaining legal advice on issues such as:

• whether a project complies with its regulatory approvals; or

• the risk of successful nuisance claims by neighbouring landowners and measures that should be implemented to mitigate impacts arising from noise or light pollution emanating from the project.

To maintain a claim for privilege over such expert reports and related correspondence, project developers must:

1. demonstrate that the expert report and related correspondence is confidential and was prepared for the dominant purpose of obtaining legal advice or litigation services in actual or anticipated litigation;
   
   

2. avoid referring to the expert report and its contents in non-confidential and non-privileged materials;
   
   

3. if an expert opinion is also required for a non-legal purpose, consider procuring a separate version of the report for that non-legal purpose and, where possible, provide it subject to strict confidentiality obligations; and
   
   

4. ensure that all correspondence with the expert, including the briefing process, is managed by either in-house or external legal counsel.