Member Article

Despite complying with conditions attached to planning permission for an onshore wind farm development, developers, landowners and operators may 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 Tinsley, Watts, Fenland Windfarms Ltd, EDF Energy PLC & Fenland Green Power Co-operative Ltd

Although there have been a number of actions arising from noise caused by wind turbines in recent 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 maximum capacity of 16 MW plus ancillary development, located 930 metres from the Claimants' house and 500 metres from the boundary of the Claimants' land. Soon after commencement of operations at the wind farm, the Claimants allege that the noise emitted from the turbines became sufficiently disruptive to force them to move house.

Background

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.

The Environmental Statement submitted in support of the application included a noise chapter assessing impacts from the operation of Vestas turbine model V66 – a turbine with a capacity of 1.75 MW, a hub height of 67 metres and a rotor diameter of 66 metres. No background noise monitoring was carried out at the Claimants’ property but, instead, estimates of the existing background levels were made based on the average noise levels measured at a nearby location.

An independent study of noise impacts commissioned by South Holland District Council to assist in its consideration of the application 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. Planning Policy Statement 24 (PPS 24) (September 1994) advises at Annex 4 (page 30) that, for industrial and commercial sites, local authorities may wish to consider imposing two types of planning condition:

• the first type sets a noise limit over a given period at a specified point - such as outside the nearest noise-sensitive building or at the site boundary. This allows the developer flexibility in achieving the required noise level and controls noise in the long term since any future changes will similarly be bound by the specified noise limits. However, in order to ensure compliance with this type of condition, noise emissions must be monitored, which can be costly and time-consuming; and
• the second type of noise condition specifies the type of activity that may take place, restrictions on the hours of operation and details of the construction and layout of the development. Compliance with this type of condition is easier to monitor and may be effective where the location of the source of noise determines the magnitude of noise impact (for example, where other existing development has insulating or buffering qualities). Conversely, this type of condition can fail appropriately to regulate future changes within the development.

PPS 24 suggests that, in practice, a combination of both types of condition might be most advantageous. This approach was followed by the Council in imposing the following condition on Deeping St Nicholas wind farm:

"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."

This condition was phrased so as to run with the land in the usual way, to bind subsequent owners, occupiers and operators of the approved wind farm for its operational life. Subject to these restrictions, 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 that they were forced to relocate to rented accommodation for respite.

Previous complaints

The Claimants submitted a series of complaints, including to the operators of the wind farm and the Council. These complaints precipitated a monitoring exercise, leading to 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;
• 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).

On the basis of these reports, 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 but had instead resulted from the cumulative effect of the turbines and background wind.

Court 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. In their Particulars of Claim, the Claimants cite two main grounds for their case:

• the noise assessment carried out at the time of the application was to assess the impact of Vestas wind turbines but different turbines have actually been installed. The Claimants state that the turbines that have been used are REpower MM 82, which have a 2 MW capacity, a hub height of 59 metres and a rotor diameter of 82 metres. Further, these REpower turbines are laid out in a configuration that differs from the one approved for the Vestas turbines. The changes to the turbines appear to have been permitted as minor amendments to the approved scheme, although the Claimants allege that no updated plans were ever submitted to the Council to supplement their records;
• the noise condition is not adequate to mitigate the adverse noise impacts from the wind farm. Specifically, the Claimants compare the Deeping St Nicholas wind farm condition to that imposed on an Ecotricity wind farm nearby at Shipdham in Norfolk and consider them to be "essentially the same". The Planning Inspector in the third appeal heard on the Shipdham proposals (PINS Appeal Ref: APP/F2605/A/08/2089810) decided that the noise condition would not control noise effectively, that it failed the Circular 11/95 tests that require planning conditions to be precise and enforceable and that they were too "cumbersome" for frequent use, even if they were to incorporate significant amendments.

In addition to claiming their legal costs in bringing their case, the Claimants 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.

Proving nuisance – is nobody immune?

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. 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 by the Court - 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. It is not clear if an extension to the Claimants' home approved following the grant of the wind farm permission was ever built and, if so, if it affected the susceptibility of their property to turbine noise.

There is no need for the Claimants to prove any injury to health or any impact on the market value of the property but they must show that the noise is both excessive and unreasonable – the law does not aid a complainant who is abnormally sensitive to noise. The burden of proof on the Claimants may be raised by the statement in DCLG publication "Planning for Renewable Energy - A Companion Guide to Planning Policy Statement 22" (December 2004) at paragraph 41 of the Technical Annex on Wind that:

Well-specified and well-designed wind farms should be located so that increases in ambient noise levels around noise-sensitive developments are kept to acceptable levels with relation to existing background noise. This will normally be achieved through good design of the turbines and through allowing sufficient distance between the turbines and any existing noise-sensitive development so that noise from the turbines will not normally be significant. Noise levels from turbines are generally low and, under most operating conditions, it is likely that turbine noise would be completely masked by wind-generated background noise.

The same Technical Annex continues to indicate that noise levels from wind farms are generally very low, especially given recent technological developments that improve their functionality. At Table 1 on page 168 of the Technical Annex, it states that noise levels from wind turbines at a distance of 350 metres (approximately 35 –45 dB(A)) are generally lower than those of a busy general office (approximately 60 dB(A)) and cars travelling at 40 mph from 100 metres (around 55 dB(A)). It further quotes from ETSU 97 at page 169:

It is not necessary to use a margin above background noise levels in particularly quiet areas. This would unduly restrict developments that are recognised as having wider national and global benefits. Such low limits are, in any event, not necessary in order to offer a reasonable degree of protection to wind farm neighbours.

However, the Courts have historically been protective of the public's right to a quiet life at common law. For example, in Thornhill and others v Nationwide Metal Recycling Ltd and another [2011] EWCA Civ 919, it was held that a clause in a land conveyance purporting to restrict the house owner's right to complain about industrial noise from a nearby site did not restrict their right to an injunction or damages, even if noise had been emanating from the same site for a long period of time.

Good intentions and acting in the public interest are no bar to an action for nuisance. Although he might be doing so in the public interest, a person committing a nuisance may still be subject to injunctive action or an order damages (Shelfer v City of London Electric Lighting Company [1894] 1 Ch 287). This principle was finessed in Dennis v Ministry of Defence [2003] EWHC 793 (QB) which decided that any public benefit should not be taken into account when determining whether a nuisance existed in fact because, in certain situations, a claimant might be required to subjugate his rights for the greater good. If, however, the public interest was considered at the later remedy stage (once the fact of a nuisance had been positively established), the nuisance could continue but the public would be obliged to pay damages for the benefit received from it.

Regulatory consent similarly provides little protection in nuisance cases - it is a well-established principle that planning permission does not provide a defendant in a nuisance claim with any immunity from action. Nevertheless, the existence of planning permission 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 itself becoming increasingly topical. This is shown by DEFRA's publication of the first Noise Policy Statement for England in March 2010 and the progress of two 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 (PAN 45) which makes noise measurement an integral part of the environmental impact assessment for any wind farm planning 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.