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The Law of Nuisance & Wind Energy

What is Nuisance There are two types of legal nuisance, public and private nuisance. We are more concerned with the latter. Private nuisance has been defined as the unreasonable and unjustified interference by the defendant in the use of his land with the plaintiffs right to enjoy his property. A defendant in this case may be a wind energy company, or a landowner. There are a number of different kinds of interference have been recognised by the courts as constituting a nuisance, however it is the interference with a neighbours comfort and convenient enjoyment of his or her land that wind farm projects are most likely to concern. In the Irish Supreme Court, Henchy J stated that it is clear from the authorities on the law of nuisance that what an occupier of land is entitled to as against his neighbour, is the comfortable and healthy enjoyment of the land to the degree that would be expected by an ordinary person whose requirements are objectively reasonable in all the 1 particular circumstances. It goes without saying however that the judiciary have sought to balance competing rights as much as possible, and have often adopted an attitude of live and let live, however caselaw tends to be concerned with two issues: 1) The utility of the defendants conduct, and, 2) The harm caused by the actions of the defendant. In respect of wind energy, it can be argued that it is useful, in that it helps in reducing co2 emissions and greenhouse gasses. There may be evidence to suggest this is not the case, but should one find themselves in Court, they will be arguing that government policy is flawed. Irrespective, once a defendant is involved in a bona fide business, the Courts will take note of this fact, but without giving it undue weight. The second heading involves showing what damage is caused to the plaintiff. For instance, noise or shadow flicker may be considered damage
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if they can be shown in court on a scientific level to exist and adversely affect a plaintiffs property. Spoiling a nice view however, is unlikely to be successful. The law of nuisance however is unusual compared to many areas of law in that the utility of the defendants conduct is not given a decisive weight. Undue deference to Government policy is unlikely if substantial interference in the rights of residents can be shown. A former Chief Justice said ... I am of the opinion that the Court is not entitled to take the public convenience into consideration when 2 dealing with the rights of private parties However, the character of the locality will play an important role in informing the court. The fact that planning permission is granted is not a defence to a claim in nuisance. However commercial wind farms tend to be located in rural areas that were historically devoted purely to residential or agricultural uses. As a result, the local residents may expect greater levels of quiet than residents of mixed use or industrial neighbourhoods. Residents could be just as entitled to bring a claim for diesel engine running long hours of the night, or a noisy shed adjacent to their property. However, due to the nature and scale of commercial wind farms, once planning is granted and the turbines installed, the character of the neighbourhood will change to a more mixed use. Again however evidence seems to suggest that the noise emanating from a wind turbine may be more irritating than just living in the city. The Courts tend to engage in a detailed analysis and take account of the very specific locality where disturbance occurs and the type of disturbance. In OKane v Campbell the Court stated that where a 24 hour shop is positioned adjacent to a residential street, though also close to a busy thoroughfare, the part-residential nature of the locality may still be relevant. In the case of Molumby v Kearns the Court had regard to both the residential and industrial aspects of the relevant neighbourhood and reached a compromise to allow the industrial estate to operate without excessive nuisance.
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Hanrahan v. Merck

Bellew v. Cement Ltd.

The Law of Nuisance & Wind Energy

The registered owner of a property can sue in nuisance, but in Irish law it is also accepted that other occupier, who do not necessarily own the property can also sue. What is Rylands v. Fletcher The rule in Rylands v. Fletcher is as follows: We think that the true rule of law is that the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default; or, perhaps, that the escape was the consequence of vis major or the act of God; but as nothing of the sort exists here, it is unnecessary 3 to inquire what excuse would be sufficient. This th case concerned a water reservoir in the late 19 century. To understand its appeal to wind farms one must look to the escape of noise, blade glint and shadow flicker. In some cases both nuisance and Rylands can achieve the same goal, but in others, such as where there is a one off incident or where the complainant may not be an occupier of a neighbouring property. In practice, a person will sue under nuisance and Rylands as well as a number of other torts. The Hanrahan Case The Hanrahan case is one of the few David versus Goliath cases. In this case the plaintiffs farmed land which was situated about one mile from the defendants' factory, which opened in 1976. The factory engaged in the processing of pharmaceutical products, which involved the storage and use of large quantities of toxic substances as well as the disposal in the factory of toxic and dangerous chemical residues. The plaintiffs instituted proceedings claiming that by virtue of the manner in which the defendants conducted their operation from 1978 to 1983 the plaintiffs and their farm animals, as well as plant life on the farm, suffered severe injuries and damage. They were unsuccessful in the High
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Court, but appealed to the Supreme Court where they succeeded. They made their claim under a number of headings, most notably nuisance and Rylands, but the case was ultimately decided on the basis of nuisance. In summary the findings of the Supreme Court were: 1. The plaintiffs were not required to prove want of due care by the defendants in the manner in which they conducted their operation at the factory, and it was sufficient for the claim in nuisance to succeed that they establish that they had not enjoyed the comfortable and healthy use of their land to the degree that would be expected by an ordinary person whose requirements are objectively reasonable in all the particular circumstances. Nuisance due to smells was successfully shown. The plaintiffs were required to prove that the injuries which they claimed to have suffered were caused by the emissions from the defendants' factory and there was independent evidence to support the second plaintiff's claim that the ill-health of which he complained was due to factory emissions. Having regard to the volume of evidence suggesting that the factory emissions were a potential cause of damage to the neighbouring environment, and that the second plaintiff had suffered ill-health as a result of toxic emissions from the factory, the defendants' scientific evidence that damage to the farm animals could not be linked directly to chemicals emanating from the defendants' factory should not be allowed to displace the proven facts; and therefore the trial judge's dismissal of the plaintiffs' claim in relation to the farm animals could not be allowed to stand.

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Since the Hanrahan case, Section 108 Environmental Protection Agency Act, 1992 has been implemented. This provides that:

Blackburn J, (1866) LR 1 Ex. 265, at p. 279:

The Law of Nuisance & Wind Energy

Where any noise which is so loud, so continuous, so repeated, of such duration or pitch or occurring at such times as to give reasonable cause for annoyance to a person in any premises in the neighbourhood or to a person lawfully using any public place, a local authority, the Agency or any such person may complain to the District Court and the Court may order the person or body making, causing or responsible for the noise to take the measures necessary to reduce the noise to a specified level or to take specified measures for the prevention or limitation of the noise and the person or body concerned shall comply with such order. The fact a complaint can be made to the District Court is a positive, as costs will be small. However the only order which can be made is one to reduce noise. One can only presume that were a District Court to order a wind farm be quietened this would be appealed further with resultant costs. Wind energy in the Courts There are no reported cases of nuisance being used in respect of Wind energy projects in Ireland or the UK. One such case seeking injunctive relief in the US it was concluded that: Based on case law that noise, by itself, would be sufficient to establish a nuisance. In relation to a flicker or strobe effect, the court found that aesthetics alone usually provided insufficient grounds for a nuisance claim, but when paired with other interferences, an The court similarly found that an alleged diminution in property values, without more, would not qualify as a nuisance. However, if coupled with interferences to the use and enjoyment of property, the diminution in property value could be sufficient for an 4 injunction.

In the UK the fight of the Davis family is well 5 publicised. In Davis , the claimants commenced a private nuisance action against the owners and operators of Deeping St Nicholas Wind Farm in Lincolnshire, as well as against the owners of the land on which it is situated. The wind farm comprises eight wind turbines with a capacity of 14 MW plus ancillary development, located 930 metres from the claimants house. The claimants alleged that the noise emitted from the wind turbines was sufficiently disruptive to force them to move house. The matter however was ultimately settled in November 2011, the terms of which are confidential. The fact however that the Couple were voicing concerns publically in July 2012 about a proposed windfarm close to their new home does however seem to indicate a fair 6 settlement! How to sue in Nuisance/Rylands Bringing any nature of claim is not something which should be done lightly, and legal advice should always be taken. Costs in a nuisance action where scientific evidence will be required can be high. Nuisance cases however are rarely brought on a frivolous basis, but generally because the plaintiff has no other options. Given that costs will need to be considered at the outset, it is always well advised to ask the potential defendant to stop (or not start) a particular activity. At least at that point should one find themselves in Court in the future, they will have something to point to, and to show that this could have been avoided had the defendant heeded the warning at the outset. Note the above is not intended to comprise legal advice, but is for informational purposes only. Michel ODowd, Solicitor 6/9/12

Burch v. NedPower Mount Storm

Davis v Tinsley, Watts, Fenland Windfarms Limited, EDF Energy PLC and Fenland Green Power Co-operative Limited 6 http://www.bbc.co.uk/news/uk-englandlincolnshire-18863376

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