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Wind farm liable for nuisance in Ireland for the first time

SEO Wind turbine

Photo By Carlos Castro/Europa Press via Getty Images

A recent Irish High Court decision will have implications for wind farm owners and operators, who need to manage the risks associated with nuisance claims, an expert has said.

The recent case of Webster & Anor v Meenacloghspar (Wind) Limited (195 pages / 1.8 MB) is the first example of a court judgment on a private nuisance claim in relation to wind turbine noise in Ireland.

The decision arose from claims by two couples, who said that the noise and vibration generated by two nearby wind turbines had affected their ability to use and enjoy their homes in rural Wexford. According to the couples, the wind farm disturbed their sleep and negatively intruded on their daily lives.

Planning permission had been granted for the wind farm in 2004. The permission specified that the noise level from the turbines when measured at the nearest inhabited house could not exceed specified decibel levels. Due to grid connection difficulties, the turbines, which were owned by a company called Meenacloghspar (Wind) Ltd, only became operational in 2017.

To succeed in a claim for nuisance in Ireland, the couples had to be able to show interference with the “ordinary use, enjoyment and comfort” of their property. The court was then asked what can be reasonably expected to be endured by an “ordinary person” under the circumstances.

The couples claimed that despite the assessment of nuisance being an objective rather than subjective test, the issue could not be determined by decibel level alone but instead by taking into account all the characteristics of the wind turbine noise. The couples argued that the court also must consider whether there was a ‘swish’ or ‘thump’ amplitude modulation (AM), which is the volume change for fluctuating wind turbine noise levels, as well as AM values, the variability of AM and the duration, frequency and timing of the AM.

The court found that compliance with specific noise limits in planning permission was not a complete answer to a claim for noise nuisance. The court found that the planning permission only regulated wind turbine noise by reference to decibel levels and could not establish a standard as to which the alleged nuisance could be measured. Regardless, the court found that Meenacloghspar had failed to demonstrate compliance with the relevant planning permission.

Property expert Kevin Collins of Pinsent Masons said: “The court found that planning permission is generally a strong indicator of what is objectively reasonable for a nuisance claim. However, this is only where all factors are considered in the planning permission and where the planning permission reflects modern guidance and best practice. The grant of planning permission was only considered influential in this case because it dealt solely with the decibel level of the wind turbines and so the particular matter complained was incompletely regulated by the permission.”

In determining which criteria it ought to consider when making an assessment of nuisance, the court relied on the Wind Farm Noise Statutory Nuisance Complaint Methodology 2011 (127 pages / 2.3 MB) , developed by the UK Department for Environment, Food and Rural Affairs (the ‘Defra guidance’). The Defra guidance identifies both quantitative and qualitative criteria to be weighed and assessed in adjudicating on wind turbine noise nuisance complaints. Applying the guidance, the court found that the noise levels when combined with other factors – such as frequency and impact on the couples’ basic needs such as sleep – gave rise to significant potential for “dominance and unacceptable intrusiveness” by the wind farm.

Ultimately, the court found the wind farm substantially interfered with the couples’ use and enjoyment of their homes and that Meenacloghspar was liable for that interference. In reaching this conclusion, the court referenced the frequency and sustained periods of wind turbine noise at a level widely acknowledged to be associated with high levels of annoyance as well as the periods of intrusive “thump” AM associated with vibration.

The court concluded that the couples were entitled to damages for unreasonable interference with the enjoyment of their properties. Determining the level of damages and the issue of whether an injunction ought to be granted will be dealt with in the second module of the case.

Zara West, energy litigation expert at Pinsent Masons said: “The approach of the court in looking beyond the noise limits specified in the wind farm planning permission demonstrates a holistic approach to assessing nuisance and may lead to a degree of uncertainty for wind farm owners and operators. Hopefully, the long-awaited update to the Wind Energy Development Guidelines of 2006 will bring clarity to this issue.”

The court rejected a claim for damages from one of the couples based on personal injury in the form of psychological injury caused by the wind turbine noise. The court found that the wind farm operator could not have reasonably foreseen a risk of either personal injury or recognisable psychiatric illness as a consequence of the noise emitted by the wind turbines.

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