An inner Melbourne coffee wholesaler and roaster, Coffee D'Oro Pty Ltd, decided to re-design their coffee roasting process and factory to be carbon neutral. The management at Coffee D'Oro Pty Ltd wanted to install a completely new power system that would make the factory entirely self-sufficient in energy and also be able to feed some electricity back into the grid. Management thought this would be good for their bottom-line profits, and also good for the business's image with consumers.

The management of Coffee D'Oro Pty Ltd held discussions with Greenelectrics Greenengineering Pty Ltd (GG Pty Ltd), a company that specialised in carbon neutral energy solutions. GG Pty Ltd proposed a new power system that would include both solar panels and some wind turbines on the roof, saying "it is a bit like selling both sunscreen and umbrellas. You are covered for all kinds of weather". Coffee D'Oro Pty Ltd agreed with the proposal and the new power system was then designed and installed by GG Pty Ltd.

Manfred Visconti is a qualified solar energy electrical engineer, who works for GG Pty Ltd. The head engineer at Coffee D'Oro Pty Ltd allocated the job of designing the system for Coffee D'Oro Pty Ltd to Manfred. Manfred is on a base retainer of $80,000 p.a. and he also receives 20% of the design fees charged to the client by GG Pty Ltd for the jobs he works on.

Manfred mostly works for home, using his own computers, and internet. GG Pty Ltd supplies the expensive computer software that models the engineering solutions and the design that Manfred produces. In addition to working for GG Pty Ltd, Manfred also does some work for Green Marine Pty Ltd, a small company that designs solar and wind power systems for luxury yachts.

Melbourne City Council granted planning approval for the refurbishment of the Coffee D'Oro Pty Ltd factory and the installation of the new power system, with strict noise level limits applying to the wind turbines.

Once the work on the factory is completed, and the new green power system is up and running, the wind turbines operate at about 15% above the noise limits set by the Melbourne City Council.

The majority of Coffee D'Oro's Pty Ltd neighbours surrounding the coffee roasting factory are happy that the company has installed a green system that contributes to a reduction in global warming and so are willing to accept the turbine noise. However, Rowan McGiver who lives 5 houses away from Coffee D'Oro Pty Ltd claims that the noise of the wind turbines is ruining his life by preventing him from sleeping. He also claims the noise interferes with his rare birds, the Eastern Ground Parrot. Mr McGiver is breeding these rare parrots in order to supplement the dwindling population of the parrots in the wild. However, they are very shy birds and any noise scares them. This prevents the birds breeding.

Mr McGiver asks the management of Coffee D'Oro Pty Ltd to turn the wind turbines off at night. Management explains to Mr McGiver that it is necessary to run the turbines 24 hours per day, 7 days per week in order to sufficiently charge the batteries to allow Coffee D'Oro Pty Ltd to be fully carbon neutral and refuses to make any changes to the operation of the wind turbines. Because of this Mr McGiver issued proceedings in the Supreme Court of Victoria claiming the wind turbines create a nuisance in the form of noise, amongst other things, and is seeking an injunction to restrain Coffee D'Oro Pty Ltd from using the wind turbines.

Advise the board of Coffee D'Oro Pty Ltd whether Mr McGiver's claim in nuisance is likely to succeed. Include your advice about what type of nuisance might be relevant on the facts. You must refer to relevant statutory provisions and court cases in your advice.

Answer rating: 100% (QA)

Mr McGivers claim in nuisance against Coffee DOro Pty Ltd regarding the noise generated by the wind turbines is likely to succeed given the circumstan... View the full answer