It’s official – wind farms are a damned Nuisance

 

 

The tort of Nuisance – basic principles

The law of (private) nuisance has been around for a long time but it has always been a poor neighbour to the more commonly litigated torts of negligence and trespass.

In a nutshell, a nuisance is “any continuous activity or state of affairs causing a substantial and unreasonable interference with a [claimant’s] land or his use or enjoyment of that land”(Bamford v Turnley [1860] 3 B&S 62).  Private nuisance is a tort or civil wrong, unlike public nuisance, which is a crime.

Something that farmers leasing their land to wind farms might not know is that a landlord can be liable where the lease is granted for a purpose which constitutes a nuisance, as in Tetley v Chitty [1986] 1 All ER 663.

For there to be a claim in private nuisance, the claimant must show that the defendant’s actions caused damage. This can be physical damage, or discomfort and inconvenience. The test for remoteness of damage in nuisance is reasonable foreseeability. In other words, was it foreseeable that a wind turbine will cause discomfort and inconvenience to nearby dwellings?  The test is an objective one: was the nuisance reasonably foreseeable? If it was, the defendant is expected to avoid it.

It is impossible to specifically define what is or what is not unreasonable but factors that are taken into account include the nature of the locality where the nuisance took place, the time and duration of the interference and the conduct of the defendant.

The plaintiff must show that the defendant’s actions have caused an interference with their use or enjoyment of their land or home/property. These interferences are indirect, and almost always the result of continuing events rather than a one-off incident. The courts have allowed cases where the interference causes emotional distress, like continuous noise / infrasound for example.

The granting of planning permission does not constitute immunity from a claim in nuisance.

 

The families of Shivnen, Whelan/Walsh, Sexton, Sheehan, Duggan, McSweeney and O’Connor, versus Enercon Wind Farm Services  Ireland Limited and Carraigcannon Wind Farm Limited

It was with considerable interest then that we waited for the outcome of the action in nuisance brought by the seven families from Cork who were impacted by noise pollution from a nearby Enercon wind farm. A number of the families had to abandon their homes because of the severity of the noise and some lived up to a full kilometre from the wind farm.

A judgment against the wind farm would have constituted a powerful precedent to be used against the wind industry given the multitude of examples of Irish families living in misery due to unwelcome turbine neighbours. It was for that reason that the defendant settled the matter (probably at the instance of, and financial assistance from, IWEA). Although settlements are always better for the parties concerned as it avoids the huge emotional and financial cost of litigation, it does mean that we do not have that precedent in Irish law (although there are a number of foreign precedents – see https://the-law-is-my-oyster.com/2014/11/16/are-windfarms-torture-farms/).

Although the defendant wind farm admitted liability (nuisance-order-dec-2016) the wind industry will seek to minimise this by arguing that this was a “one-off” situation for any fallacious reason that they can think of: “the unique terrain; the extraordinary sensitivity of the plaintiffs; etc etc.” Expect a carefully worded press release soon in your nearest rag.

There is still one more opportunity to achieve a damning precedent though. The case is listed for ten days in the High Court commencing 25th April 2017 to deal with damages and costs. If the High Court was to make a massive award of damages (i.e. in the millions of euros) that would send a very strong message to the wind industry that Ireland is simply not suitable to build wind farms, due to the scattered population leaving very little wide open spaces. If they insist on erecting their monsters next to people’s homes, they must be prepared to pay a lot of money, which is what the wind industry is all about anyway – money. Don’t believe all the “green” rhetoric – if you hit them hard in the pocket, they will leave, our subsidies notwithstanding.

It is for that reason that there will very likely be a financial settlement. Good news for the families involved – they can avoid the ten days of litigation and get on with their lives, after a very hard five-year fight. Bad news for the Irish rural population, as again there will be no precedent and it is guaranteed that the settlement will come with a gag order that will prohibit any of the families disclosing the details of the financial settlement. One would almost pray for a wealthy benefactor to compensate the families up front so that the ten days’ litigation could continue (assuming that the notoriously conservative High Court would hand down a decent damages award in the millions). Any friendly millionaires out there willing to step up to the plate?

 

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from practice in 2002 to take up a full-time lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). He is an accredited and practising mediator and is busy writing a book, with Dr Sinead Conneely, on Mediation in Ireland. His current interest is Ireland’s energy policy and its impact on the people and the environment. He is also researching the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
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14 Responses to It’s official – wind farms are a damned Nuisance

  1. Beth Harrington says:

    Thank you. Here in Ontario Canada there are so many people now in harm’s way doe to the proximity of industrial wind turbines that a nuisance option is rising much closer to the surface. We too are requesting that key documents are shared globally in a effort to understand how significant the Shivnen arguments and evidence is.

    Beth Harrington

    Beth Harrington Communications Cel. 647 588-8647 Twitter @smarysb

    >

  2. Pat Swords says:

    Neil

    Fair dues to the families involved for fighting this through year after year, as your own link to the nuisance order documents, the case commenced in the High Court in 2011.

    So maybe you are missing an additional point, the failure of the Irish Courts services to deal with an issue with this. For instance, why five years already and ten days of further litigation in April at huge cost and unknown and unpredictable outcomes? You can’t blame the families for accepting a financial settlement if it comes their way, after all would you like to estimate the cost of those ten days in Court on top of what has already been funded. However, as you quite rightly point out, the lack of resulting precedent deprives others and is in essence in many ways an affront to our democratic rights to challenge in the Courts, i.e. access to justice, which is fair, equitable, timely and not prohibitively expensive. So in many respects the real villain here is not just Enercon, but the Irish State, which failed to provide proper planning and then abjectly failed to provide a legal forum in which the matter could be subsequently resolved in a fair, equitable, timely and not prohibitively expensive manner. Note: A recurring theme, while neither should one ever require a wealthy benefactor to exercise one’s democratic rights.

    • I absolutely agree. If I was representing the families I would tell them to take the money and run. Five years of litigation is exhausting, on top of the fact that the turbines are still wrecking your head whilst the matter is dragged out in court.

  3. Francis Clauson says:

    There may be another one in the pipe line

    COUGHLAN & ORS -V- ESB WIND DEVELOPMENT LTD 2016/4209 P

    looks suspiciously like a noise related case

  4. Are the pleadings up on the Courts Service site?

  5. Pingback: It’s official – wind farms are a damned Nuisance | ajmarciniak

  6. Francis Clauson says:

    And another

    DOYLE & ORS -V- CASTLEDOCKRELL WIND GROUP LTD 2015/10339 P

  7. roger day says:

    Hello,

    I am Roger Day of the Save Our Mountain Committee of Cullahill County Laois. Perhaps someone would advise me. As I understand it there are six plaintiffs who have succeeded in an action wherby the defendants have admitted liability. This is to go to the Judge who will award damages unless settled. In this instance it would be certain that the plaintiffs would get costs.The question is will the plaintiffs settle. My question is is it necessary for ALL the plaintiffs to settle ? If not then surely one, perhaps with the less to loose, could still go to the Judge and thereby form the precedent. In this case the ‘insurance’ would only be the difference between the offer from the plaintiffs and the actual award – if less. If this was so then I am sure we could arrange this. I realise that the money behind this will insist that all agree – in this case the ‘insurance’ would increase – but even then may be of interest to the wider groups involved in this fight. Comments please

    • Hi Roger

      In theory what you say is true as the respective families have all filed under a different case number and would therefore be classed as distinct causes of action. I have no doubt that a settlement will involve all the parties – I cannot see that the wind industry will be prepared to allow any of the plaintiffs to escape the inevitable settlement plus gagging order.

  8. Barry says:

    Hi
    They are putting turbines up next to me
    Would a noise monitor from kerry county
    Prove how noisy they are

    • Francis Clauson says:

      Could you give us more detail – planning app number and wind farm name -is there a noise planning condition ?

  9. Pingback: Wind Turbine Noise & Nuisance: Irish High Court Trial on Damages Set For April – STOP THESE THINGS

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