Despite complying with conditions attached to planning permission for an onshore wind farm development, developers, landowners and operators may nevertheless find themselves defending an action for nuisance if the noise from the wind turbines unreasonably interferes with the use of another's land.
Davis v Fenland Windfarms Ltd and Others
While there have been a number of actions arising from noise caused by wind turbines over the years, the ongoing case of Davis v Tinsley, Watts, Fenland Windfarms Limited, EDF Energy PLC and Fenland Green Power Co-operative Limited in the Queen's Bench Division of the High Court is the first to be raised under the law of nuisance and so will be of particular interest to energy offerings.
Nuisance actions are most likely to be brought against developers and operators of wind turbines but could also capture the owners of the land on which the turbines are built. Such actions would normally be based on the laws of statutory nuisance (where there is an actionable breach of a statutory provision) or private nuisance (a breach of common law where there is interference with the use and enjoyment of a person's land).
In Davis, the claimants have 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 allege that the noise emitted from the wind turbines was sufficiently disruptive to force them to move house.
Report on noise impacts
At the time of the application, the claimants did not object to the proposals as they considered the wind farm would be a beneficial development for the area and because they did not expect to be affected by the turbines. An independent study of noise impacts commissioned by South Holland DC, to assist in its consideration of the proposals, found that the noise would be acceptable but refused the application on other grounds. This report was also relied on by the Planning Inspectorate in a subsequent appeal against refusal, which concentrated on issues other than noise.
Planning permission was granted on appeal on 19 May 2003, subject to conditions, including the following:
"The noise emission (LA90, 10 minute) from the combined effects of all the wind turbines, as measured in free field conditions at any dwelling (in existence at the time of the permission), shall not exceed the greater of 35dB(A) or 5 dB(A) above background noise (LA90, 10 minute) at wind speeds within the site not exceeding 10 metres per second. The noise emission values for the wind turbines shall include the addition of any tonal penalty as recommended in ETSU R 97 report to the DTI. This condition shall apply for both day and night time periods."
The wind farm commenced commercial operations in June 2006, at which point the claimants started to complain about noise disturbance. Despite having double-glazing, house insulation and wearing earplugs, the claimants claimed the noise interfered with their sleep and were forced to relocate to rented accommodation for respite.
The claimants submitted a series of complaints, including to the operators of the wind farm and the Council, resulting in a monitoring exercise and the following additional reports from an independent investigator:
- the first report entitled "Noise Conditions Compliance Measurement Report" and dated October/November 2006 found potential exceedances of acceptable noise thresholds and found problems with enforcement of the noise condition; and
- the second report entitled "Acoustic Features" and submitted to the Council in July 2007 found evidence of amplitude modulation (described by the claimants as a "helicopter noise", in reference to the swishing or thumping noise made by rotor blades) although it did not identify any low frequency noise (an ongoing humming noise).
It was concluded that there had been no statutory nuisance under Section 79(1)(g) of the Environmental Protection Act 1990, which prohibits "noise emitted from premises so as to be prejudicial to health or a nuisance". The Council considered that any breach would not have been solely attributable to the turbine activity - instead it resulted from the cumulative effect of the turbines and background wind.
Private nuisance action
Aggrieved by the alleged disturbance and the perceived impact on the value of their property, the claimants brought an action in private nuisance on 4 July 2011. They are seeking for the Court to grant them two remedies:
- an injunction which, if granted, will prevent the continuation of the activity causing the nuisance. In practice, this could significantly interrupt the commercial operation of the wind farm; and
- payment of damages, which in a private nuisance action would be awarded for the loss of amenity value of the affected land, rather than for the discomfort and inconvenience suffered by the occupiers.
In order to succeed, the claimants must prove that they are suffering substantial interference with their comfort and convenience and that any reasonable person in the same position would suffer the same way. However, there is no need to prove any injury to health or any impact on the market value of the property.
Where the interference is caused by noise, the Court will take into account the character of the noise, the degree of interference (i.e. the volume of the noise) and the duration of the interference. The character of the neighbourhood will also be considered - the claimants' choice to live in a quiet rural area will support their action, as well as the fact that the noise may continue indefinitely if not curbed.
Planning permission does not provide a defendant in a nuisance claim with any immunity from action although it may be taken into account when determining whether the interference is objectively "substantial". The defendants' planning permission could be used to show that the wind farm is acceptable in principle (as permission would not have been granted had the proposals not complied with relevant policy) but, in that case, any breach of planning condition will be material to the decision.
The future of noise nuisance
The Davis case is expected to resume in Court in November 2011 following an adjournment. The outcome of this landmark case is eagerly awaited. If the claimants are successful, the judgment could impact on future wind farm developments and open the judicial floodgates for other cases on similar grounds. It is imperative that wind farm developers and operators appreciate that they must comply with planning conditions to avoid a breach of planning regulation, but that doing so is not a bar to an action for nuisance in the Courts.
The issue of wind farm noise is becoming increasingly topical as shown by the progress of two separate Private Members' Bills dealing with turbine noise through both houses of the UK Parliament. To date, the Onshore Wind Turbines (Proximity of Habitation) Bill 2010-11 awaits its second reading in the House of Commons, and the Wind Turbines (Minimum Distances from Residential Premises) Bill 2010-11 awaits consideration by Committee in the House of Lords. Each Bill essentially seeks to give local authorities in England and Wales the power to specify the distance required between wind turbines and habitations. The HC Bill suggests a separation of a distance ten times the turbine rotor diameter and the HL Bill suggests a distance of between 1 – 2km, depending on the height of the turbines.
In Scotland, the Scottish Planning Policy requires planning authorities to consider the proximity of wind turbines to populated areas in spatial frameworks, and cites a maximum of 2km as a guideline separation distance, subject to individual circumstances. Planning authorities must also take into account Planning Advice Note 45 which makes noise measurement an integral part of the environmental impact assessment for any wind farm application. The Scottish Government has rejected calls set out in Petition PE1328 (November 2010) for a guaranteed minimum separation distance of 2 km between any wind turbine and residential development.
As it is an ongoing case, no official documents for Davis are available yet but for the Planning Appeal Decision of May 2003 by way of background click here.
For information about the Onshore Wind Turbines (Proximity of Habitation) Bill 2010-11 click here.
For information about the Wind Turbines (Minimum Distances from Residential Premises) Bill [HL] 2010-11 click here