The case involved the experiences of two couples who owned houses located near two wind turbines in Ballyduff, Enniscorthy, Co. Wexford.

The turbines were built on foot of planning permission which was granted in 2004. The plaintiffs alleged nuisance in the form of noise and vibration generated by one of the nearby wind turbines, as well as shadow flicker.

Facts

The defendants had offered the plaintiffs a ‘noise acceptance agreement’ in which they would receive an annual payment for the duration of the planning permission of the turbine. The defendants presented several arguments relating to the planning permission of the turbines. The defendants argued that as the turbines have planning permission, this permission is a determinant of the nuisance, and the noise conditions set out in the permission are a reliable indicator of what noise levels are objectively reasonable.

Both arguments were rejected by the High Court (Court), which held that the planning permission does not wholly regulate the issue complained of. The Court distinguished a similar case raised by the defendants, Smyth v RPA, on the basis that the former case dealt with legislation set out by a statutory authority.

The Court considered the guidance in the area and found the evidence provided by the plaintiffs to be robust and reliable. The first named plaintiff had kept noise diaries which recorded the disturbances over some years. The Court also found the plaintiffs to be reasonable and tolerant individuals.

Test for Nuisance

The test for nuisance involves a substantial interference with the ordinary use, enjoyment and comfort of a property. The Court considered large amounts of evidence, testing and expert evidence in its assessment of the nuisance.

An issue was raised as to what could be considered an acceptable level of noise in the circumstances. As there is planning permission for the wind farm, it cannot be said that some level of noise amounts to unreasonable interference. The Court also held that it is not possible to ‘draw a line in the sand’ and set a line as to what constitutes an acceptable level of noise.

The Nuisance

The Court held that the noise generated by the wind turbines constituted a nuisance. There were multiple factors involved in determining that the noise was objectively unreasonable. The noise was characterised as erratic and intermittent and was louder at times when quiet time is at a premium, i.e., in the evening and early morning. It was held that the nuisance increased due to the unpredictable nature of the noise and lack of control of the plaintiffs over the noise. The noise occurred frequently and on a sustained basis- it was noted that if the conditions were for short periods or on rare occasions, then the case for nuisance would not be made out.

The noise was found to constitute a substantial interference with the plaintiffs’ enjoyment of their homes.

The Court was not satisfied by the defendant’s claim that insulation would improve the situation, as evidence was put forward from a later occupant of one of the properties that she had had the house insulated and it had made no significant difference.

The Court heard expert evidence which demonstrated the significant impact that the noise disturbances had on the plaintiffs, including sleep deprivation, anxiety, and a range of impacts on quality of life.

In relation to the plaintiffs’ second ground of nuisance claim, the Court was not satisfied that the shadow flicker constituted a nuisance, as the accepted guidance limit of an average of 30 minutes per day was not exceeded. However, the Court noted that the defendant could have implemented mitigating measures at low cost and that this had not been done.

Recoverable Injury

While the plaintiffs can recover for material damages having established nuisance, the Court found this did not extend to recovery for psychological impacts in this case. While it was accepted that one of the plaintiffs suffered significant psychological health impacts stemming from sleep deprivation arising from the nuisance, it was held that these impacts were not a reasonably foreseeable consequence of the installation of the wind turbines and as a result were not recoverable in this case.

Plaintiff’s Arguments on Entitlement to a “Section 160” Planning Injunction

While the plaintiffs were successful in their claim for nuisance, the court was not satisfied that they were entitled to relief under section 160 of the Planning and Development Act 2000 i.e., to a “planning injunction” for breach of the terms of the planning permission governing the construction and operation of the wind farm. The Court found that it was not able to make a ruling on whether the planning conditions stipulating technical, quantitative acoustic noise limits had been breached simply because the plaintiffs’ evidence did not extend to the technical measurement of the noise relative to the noise limits in the planning permission (condition 15). Therefore, while the plaintiffs claimed a Section 160 planning injunction, their evidence was confined to the issue of the impact of the noise on the use of their properties and was not additionally directed at establishing a breach of the planning permission noise limits; therefore, the Court was not in a position to rule on whether the planning permission conditions had been breached and so rejected the plaintiffs’ section 160 claim.

Next Steps

This case was Module 1 of the case which dealt with the assessment of nuisance. Module 2 will follow and will deal with reliefs and damages.

Conclusion

This is the first Irish case of nuisance involving wind turbines. There is, of course, an extent to which the findings are tied to the particular factual matrix in the case e.g., the workings of the particular turbines, the noise emanating from them and the location of the properties relative to the turbines. However, the case has wider importance in demonstrating how the Irish courts will approach applying the age-old definition of “nuisance” to a much more modern phenomenon – the operation of a wind farm.

See the judgment of the case here.

Contributed by Aoife Garvey & Kate Abell