A High Court judge has found that levels of noise generated at certain times of the day by a wind farm constitutes a nuisance to the occupants of neighbouring properties.
In a landmark decision, which is understood to have implications for the operation of electricity-generating wind turbines, Ms Justice Emily Egan held that noise levels from the two-turbine Ballyduff Windfarm at Kilcomb, near Enniscorthy, Co Wexford, amounted to "unreasonable interference".
The cases are the first private nuisance claim from wind turbine noise to run in either Ireland or the UK, the judge said.
The first action was taken by Margret Webster and her partner Keith Rollo whose home is close to the wind farm which has been operational since 2017.
A second action was taken by Ross Shorten and Joan Carty who had owned another property close to the turbines, but sold it after they commenced their proceedings in 2018.
Both couples had sued the wind farm operator Meenacloghspar (Wind) Limited seeking damages for nuisance.
The couples claimed they had been subjected to constant noise and nuisance from the wind farm that had damaged their lives, health and the value of the properties.
The claims were fully denied by the defendant, with a registered address at Stillorgan Road, Donnybrook, Dublin 4.
'Unreasonable interference'
In her ruling on the first part of the case, which dealt with liability only, Ms Justice Egan said the noise amounted to an "unreasonable interference" with the enjoyment of their property, and they were therefore entitled to damages.
The hearing of the first module lasted for 51 days, far longer than what had been originally estimated by the parties' lawyers, the judge noted.
The costs of the case to date have been estimated to be well over €1 million.
During the course of the hearing, the judge also physically visited the turbines and the properties.
Giving the court's decision, the judge said that there are frequent and sustained periods of noise "widely acknowledged to be associated with high levels of annoyance" and have "a characteristic known to lead to adverse reaction in the community".
The judge accepted that in this case such noise levels from the wind farm "occurs commonly and for sustained periods".
Noise levels that exhibit these characteristics on a regular and sustained basis were "unreasonable and exceptional," she said.
"I find that the plaintiffs’ complaints are objectively justified in that the noise interferes with the ordinary comfort and enjoyment of their homes. When it occurs, this interference is a substantial interference."
While the noise is liable to annoy during the working day, higher prevailing background noise levels and the fact that the occupants are not trying to relax, or sleep means that the noise did not in general substantially interfere with the plaintiffs’ enjoyment of their property, she said.
However, the noise "poses a nuisance to the plaintiffs in the evenings and at weekends, when one could reasonably expect to be enjoying recreation in the garden or peace in one’s dwelling".
"Demonstrably the noise also poses a nuisance at night and in the early morning when a quiet environment is at a premium," she said.
Damages
The amount of damages to be awarded to the plaintiffs, the issue of whether an injunction ought to be granted and, if so, the terms of such injunction will be assessed by the court following the second module of the claim.
The judge also found that the defendant had not breached the terms of turbine’s planning permission, as alleged.
The court said that while the court was not satisfied that wind farm complies with the noise condition of its permission, this had not been pleaded in the case.
The court also rejected claims that the defendant had been negligent towards the plaintiffs.
The court rejected the defendants' claim that Mr Shorten and Ms Carty were not entitled to seek damages for arising out of their disposal of their former property.
The judge said they were entitled to advance a claim to damages in nuisance for any unreasonable interference with amenity occasioned during the period of their ownership and potentially for diminution in the sale price.
The judge said the case was before the court when existing planning guidance regulating, the noise aspects of wind farm developments in Ireland, the Wind Energy Development Guidelines, 2006 are under review.
While draft revised Wind Energy Development Guidelines were published in 2019, these had been withdrawn, the judge said.
In the absence of clear policy guidance from the government on wind turbine noise, the assessment in an individual case "is a classic matter of degree on which the court must exercise judgment," the judge added.
After giving her decision, the judge directed the parties to re-engage in mediation in an attempt to identify appropriate and proportionate mitigation measures.
The judge said she was requesting this in an attempt to resolve all outstanding issues between them.
In their actions, the plaintiffs sought various orders requiring the defendant to cease operating, decommission and dismantle the wind farm.
They also sought orders restraining the defendant from operating the wind farm until it is constructed in a way such as to not cause undue and excessive noise, vibration and shadow flicker at their home.
They further sought damages including aggravated damages for nuisance, negligence, breach of duty and breach of their Constitutional Rights, including their rights to family life and the quiet enjoyment of their home.
The couples, represented in the action by John Rogers SC, instructed by solicitor Philip Coffey of Noonan Linehan Carroll Coffey, claimed their lives suffered due to the impact of the noise, vibration and shadow flicker from the wind farm.
Their sleep had been disrupted, their anxiety levels increased, and their overall mental health had suffered due to the noise and vibrations generated by the wind farm.
They said the noise was like a cement mixer, or an aeroplane flying overhead without ever landing.
Mr Shorten and Ms Carty, with an address at Grange Road, Rathfarnham, Dublin 14, had claimed that their former house at Ballyduff was approximately 359 metres from the wind farm.
After delivering her decision, the judge agreed to adjourn the matter for several weeks to allow both sides to consider the judgement.
