A High Court judge has found that wind farm noise levels at certain times of the day constitute a nuisance to nearby residents.
In a decision that is understood to have implications for the operation of wind turbines, Ms Justice Emily Egan held that noise levels from the two-turbine Ballyduff Windfarm at Kilcomb, near Enniscorthy, Co Wexford, amounted to an “unreasonable interference” with the enjoyment of two couples’ properties.
The cases are the first private nuisance claims from wind turbine noise to run in 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 that has been operational since 2017. A second action was taken by Ross Shorten and Joan Carty who owned another property close to the turbines but sold it after commencing their proceedings in 2018.
Both couples sued the wind farm’s operator, Meenacloghspar (Wind) Limited, seeking damages for nuisance.
The couples claimed they have been subjected to constant noise and nuisance from the wind farm that damaged their lives, health and the values of the properties.
The claims were fully denied by the defendant, with a registered address at Stillorgan Road, Donnybrook, Dublin 4.
The hearing of the first module lasted for 51 days, and the costs of the case to date have been estimated to be well over €1 million. Ms Justice Egan also visited the turbines and the properties.
Giving the court’s decision in the first module of the cases, dealing only with liability, the judge said the noise amounted to an “unreasonable interference” with the enjoyment of their property and were therefore entitled to damages.
There are frequent and sustained periods of noise “widely acknowledged to be associated with high levels of annoyance”, she said.
The judge accepted that in this case the noise level “occurs commonly and for sustained periods”.
Noise levels that exhibit these characteristics on a regular and sustained basis are “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 it did not generally substantially interfere with the plaintiffs’ enjoyment of their property, she said.
However, she said, 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 and at night and early morning when a “quiet environment is at a premium”.
The level of damages to be awarded, whether an injunction should be granted and, if so, in what terms, will be assessed by the court after the second module of the cases concludes.
The judge found the defendant had not breached the terms of the wind farm’s planning permission.
The court said that while the court was not satisfied the 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 was negligent towards the plaintiffs.
The judge said the case was before the court while existing planning guidance regulating the noise aspects of wind farm developments in Ireland (the Wind Energy Development Guidelines 2006) are under review.
Draft revised Wind Energy Development Guidelines published in 2019 have 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”, she 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.
In their actions, the plaintiffs have sought various orders requiring the defendant to cease operating.
They also seek 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 by John Rogers SC, instructed by Noonan Linehan Carroll Coffey solicitors, claim their lives have suffered due to the impact of the noise, vibration and shadow flicker from the wind farm.
Their sleep has been disrupted, their anxiety levels increased, and their overall mental health 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.
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