Injunction Sought to Protect Neighbours’ Health from Wind Farm Noise

insomnia

Health Board aims to prevent the damage before it’s done.

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A couple of weeks back we covered the story from South Plymouth, Massachusetts, where the Bourne Board of Health is asking selectmen to authorize Town Counsel Robert S. Troy to request a court injunction — expressly to halt the construction of a threatened wind-farm. The action is grounded in ‘noise nuisance’, which we covered in detail in the same post (and which we cover again below):

Injunction Sought to Prevent Wind Farm Noise Nuisance: Local Health Body Takes Wind Power Outfit to Court

Urged on by potential local victims who are unwilling to end up as wind industry ‘road-kill’, the Board got the thumbs-up from their Lawyer to file for an injunction to prevent the damage to their constituents’ health, wealth and happiness.

Bourne selectmen approve legal action to stop Plymouth turbines
Cape Cod Times
Madeleine List
1 December 2015

BOURNE — The Board of Selectmen unanimously approved health officials’ request to seek legal action to stop the construction of four wind turbines just over the town line in South Plymouth because of the potential adverse effects on Bourne residents’ health.

Some parts for the turbines have been transported from the New Bedford Marine Commerce Terminal to the site. Delivery was initially delayed when Bourne officials questioned the removal of guard rails needed for the parts’ passage.

After over an hour of debate, the selectmen authorized the Board of Health to meet with the town counsel and discuss filing an injunction against Future Generation Wind.

The logistics and budget of doing so remain unknown, but residents expressed overwhelming support for the move.

Speaking passionately before the board, many residents said they worry the noise and flicker created by the spinning of the turbines will be bothersome. Some said simply the sight of the 500-foot machines on the horizon would be an eyesore and cause their property values to drop.

“It doesn’t have to make noise or flicker in order to be an ugly situation for us,” said Ron Mataeson of Wolf Road. “We’re not talking about something that’s on the ground, we’re talking about something that’s way up in the air. That’s visual.”

An attorney representing ConEdison, the turbines’ owner, said that the town of Bourne didn’t have sufficient evidence to seek an injunction since the project is being built over town lines and that taking legal action could be a long and expensive process.

“I am the one who advised the client that the town of Bourne does not have jurisdiction over the town of Plymouth,” said attorney Jonathan Fitch. “If the issue is as fuzzy as it may be, it’s not going to be a trial court, it’s going be an appeals court. It could be years. I think it is a serious mistake on anybody’s part to go headlong into litigation.”
Cape Cod Times

Good to see the wind power outfit’s lawyer sabre rattling in typical wind industry in terrorem style. But this won’t be the first time that one these characters has been quick to ‘talk the talk’, but terrified to ‘walk the walk’.

Sure, wind power operators have deep pockets (obscenely stuffed with the massive subsidies drawn from their victims, among others). But they have never won a common-law case demonstrating that wind farms do not cause noise nuisance.

And the reason they have never won such a common-law case, is that every one that has ever been pursued by wind farm neighbours (and, in Texas, 23 contracted turbine hosts – see our post here), has been settled, very quietly, out of court.

True it is that wind farm developers routinely ‘win’ rubber-stamp planning approvals, when they’re out to spear these things into the hearts of rural communities, despite furious objection from the vast majority within those communities.

However, the common law right to live in one’s own home free from unreasonable interference from noise has nothing to do with noise ‘standards’ (written by the wind industry), planning terms or the views of bent quasi-government authorities, like Australia’s NHMRC.

The Waubra wind farm – which is run by Spanish outfit, Acciona – has drawn something like 1,400 noise complaints and has driven 11 farming families from homes that neighbour its operation, since it started operating over 6 years ago in July 2009 (see our post here).

The owners of those homes had been complaining bitterly about low-frequency noise and infrasound from the moment the turbines commenced operation.

Terrified of litigation, Acciona’s lawyers quietly went to each of the families complaining; purchased their properties and stitched them up with bullet-proof gag clauses – that prevent them from ever talking about the “sale” (see our post here).

So terrified were they that word of Acciona’s out of court settlements would get out, they even pursued one of the victims, Trish Godfrey all the way to Adelaide in South Australia in an effort to prevent her from giving evidence in a wind farm planning case about her acoustic torment – (see this article and our posts here and here).

Other common law nuisance cases where the developers have paid out substantial compensation to plaintiffs neighbouring wind farms, include English couple, Julian and Jane Davis who won a £2 million out of court settlement from a wind farm operator (detailed below).

Another involved the claim filed in April 2013, by a group of 17 residents living next to the Lake Winds wind farm (others joined the group later) against Consumers Energy in Mason County Circuit Court, Michigan. One of the successful plaintiffs, Cary Shineldecker summed up the result of their lawsuit, which was resolved during the late summer and autumn of 2014:

“It was just about to go to trial; in fact I was in court waiting to be the first to testify, when we were told a settlement had been reached,” Shineldecker said. “It took about two months to work out the wording; then ours was actually finalized the week of Dec. 17.

“To me, we were helping others by being willing to take a stand,” Shineldecker added. “One of these days the facts are going to come out. Twenty years from now the health impacts of living with these industrial wind turbines will be common knowledge. It will be like the way it happened with cigarettes. But right now those who know the truth are a minority.”

 The full story is covered here: US Wind Farm Operator Settles to Shut Down Neighbours’ Dynamite Damages Case

Cary Shineldecker hits the nail on the head when he says that “One of these days the facts are going to come out”. And that’s precisely the reason that the wind power outfit being sued settled with him and all of the other plaintiffs in that case. And, for the same reason, why Acciona bought out and gagged 11 families at Waubra in Victoria. And, again, why Julian and Davis were offered £2 million on the steps of the Court before the trial began.

While ConEdison’s lawyer might be talking tough now, STT doesn’t share his blustery confidence in his client’s case; here’s why.

Alive to the critical importance of regular, quality sleep to health, the common law has recognised a person’s right to a decent night’s sleep in their own home for over two centuries.

STT’s Nuisance “In-a-Nutshell”

Nuisance is a long recognised tort (civil wrong) at common law based on the wrongful interference with a landowner’s rights to the reasonable use and enjoyment of their land.

Negligence is not an element of nuisance, although aspects of the former may overlap with the latter.  Where, as here, the conduct is intentional (ie the operation of the wind turbines is a deliberate act) liability is strict and will not be avoided by the defendant showing that it has taken all reasonable steps to avoid the nuisance created.  Indeed, the conduct of the defendant is largely irrelevant (unless malice is alleged); the emphasis is on the defendant’s invasion of the neighbouring landowner’s interests.

A defendant will have committed the tort of nuisance when they are held to be responsible for an act indirectly causing physical injury to land or substantially interfering with the use or enjoyment of land or of an interest in land, where, in the light of all the surrounding circumstances, this injury or interference is held to be unreasonable.

The usual remedy for nuisance is an injunction restraining the defendant from the further creation or continuance of the nuisance.  Injunctions are discretionary, in all cases, and will not be granted unless the nuisance caused is significant.

Where interference with the enjoyment of land is alleged, the interference must be “substantial” and not trivial.

Interference from noise will be substantial, even if only temporary in duration, if it causes any interference with the plaintiff’s sleep.

The loss of even one night’s sleep through excessive noise has been repeatedly held to be substantial and not trivial in this sense (see Andreae v Selfridge & Co [1937] 3 All ER 255 at 261, quoted with approval in Munro v Dairies Ltd [1955] VLR 332 at 335; Kidman v Page [1959] St R Qd 53 at 59; see also Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683 at 701: “a man is entitled to sleep during the night in his own house”).

It is not a defence for the party creating the nuisance to claim that he is merely making a reasonable use of his property.  The defendant’s conduct may well be otherwise lawful, but still constitute actionable nuisance.  The activity engaged in by the defendant may be of great social utility or benefit, but that has been repeatedly held as being “insufficient to justify what otherwise would be a nuisance” (see For example, Munro v Dairies Ltd [1955] VLR 332 at 335; see also Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683)

Halsey’s case is well worth a read – a real “David and Goliath” battle, as described by the trial Judge: “This is a case, if ever there was one, of the little man asking for the protection of the law against the activities of a large and powerful neighbour.”  And just like David’s epic battle with a thuggish giant, the little bloke won!

Here’s a link to the case: Halsey v Esso Petroleum [1961] 1 WLR 683

Precisely the same principles were at work in the case pursued by Julian and Jane Davis, who successfully obtained a £2 million out of court settlement from a wind farm operator, for noise nuisance; and the resultant loss of property value (the home became uninhabitable due to low-frequency noise, infrasound and vibration).

The Particulars of Julian and Jane Davis’ Claim are available here: Davis Complaint Particulars of Claim

And Jane Davis’ Statement (detailing their unsettling experiences and entirely unnecessary suffering) is available here: davis-noise-statement

The common law also recognises the ability to prevent a neighbour from building a noise generation source that will inevitably cause nuisance (with what is called a quia timet injunction). The rule is based on the common sense principle that it’s easier and fairer to keep wild horses corralled, than it is to round them up once they’ve bolted.

One pertinent example is Grasso v Love [1980] VR 163 (available here).

The Full Court of the Supreme Court of Victoria upheld the trial judge’s decision to grant a quia timet injunction to prevent the construction of a Drive-in Theatre which a developer was planning to build right next to the plaintiffs’ home. The injunction was granted on the basis that the noise created by the Drive-in at night-time (noise from the speakers, loud voices, banging car doors, engines starting and tooting horns) would be heard within the plaintiffs’ home and, therefore, cause a very substantial degree of interference with the use and enjoyment of their home. On the basis of the noise likely to be created, the threat of nuisance to the plaintiffs was substantial and, accordingly, they were entitled to an injunction stopping the developer from building his Drive-in, as proposed.

What the growing band of individuals – like Julian and Jane Davis – are relying upon to protect their health, wealth and happiness are the rights that citizens of civilised societies have fought over centuries to establish and maintain (think Magna Carta and all that).

STT is heartened that outfits like the Bourne Board of Health are in there fighting to protect those very same rights. As an observer of the manner in which governments and those within its organs who are paid handsomely to do just that have, instead, sided with the wind industry in wantonly destroying those rights and, worse still, derided its victims, STT says about jolly time.

But don’t expect the venal who supp from the same subsidy trough to take up the cudgels on your behalf any time soon. Oh no, the only guaranteed defender of your own rights is you.

Freedom from noise nuisance (and the ability to sleep in your own home) isn’t a “concern”; it’s a hard-won legal “right” – that’s been upheld against the mighty, rich and powerful for close to 200 hundred years.

The wind industry is – with knowing assistance from your very own governments – more than prepared to simply trample on those rights and, in doing so, to literally steal what’s yours from under you. Don’t let them take what’s rightfully yours without a fight; and don’t sit back and leave it to someone else. These are your homes, your families and your rights – fight for them. There’s a judge just waiting to hear from you.

judges-gavel

About stopthesethings

We are a group of citizens concerned about the rapid spread of industrial wind power generation installations across Australia.

Comments

  1. In regards to Acciona buying homes, they purchased 8 homes out of the 11. Acciona did testing for our home, one of the other 3. After legal intervention, it supplied the raw data indicating extreme pulsing; so much so that the equipment went into overload on three occasions, in the raw data. Acciona kept the report on our house hidden; and claimed that the test results for our property were no different from any rural property with wind turbines or without turbines. No evidence was made available to support its claims.

    In mid 2014 further testing was done by Acciona and, yet again, it has provided no evidence of its test results.

    It is now very clear that the governments of Victoria and Queensland are turning a blind eye; or worse still, knowingly allowing the developer to write their own permit conditions and operational permit conditions without any scrutiny prior to being given permits.

    This appears to be the case at every windfarm project I have investigated or requested information in relation to. I have sought information regarding various wind farms in Victoria: Waubra, Bald Hills, Stockyard Hill, Mt Mercer, Berrybank, Mortlake, Dundonnell, Elaine Yendon, and Chepstow windfarms.

    In my submission to the recent Dundonnell wind farm panel, I complained that the permit conditions and the operating permit conditions and were not being provided prior to the hearing. My evidence was presented at the last session on the Friday. Only after that, on the following Tuesday, the developer provided draft permit conditions. Then, about a week later, the planning department recommended changes or additions to the developer’s permit conditions.

    It is required by law that the panel must consider all public concerns. This never occurred at Dundonndell, as the evidence I provided was not tabled for consideration by the developer prior to the draft permit conditions.

    The planning department did not table the information to be considered by the developer before the developer submitted its permit conditions.

    It is clear to me that permit conditions and the very important complaints procedure in the operational management management plan is still in the hands of the developer with the blessing of the planning department.

    Has the information been withheld from the planning minister in Queensland or is it being conveniently ignored by the Planning minister?

    In Victoria we met with members of the health department at Evansford (I think in early 2012) and were told by the Head Doctor that there was no question of doubt about the health effects caused to neighbours by wind turbines. But that the precise pathway needed to be established. The government cut off contact with this doctor; and soon after our first meeting he was replaced before the next meeting planned to be held in Melbourne.

    We presented evidence of exposure to high sound pressure levels in the lower frequency spectrum, which is well known to be harmful to humans, at that meeting. However, no further meetings have occurred; and no objective or independent subjective noise assessments have been done. These are in the exclusive control of the developer, as provided under the permit conditions that they write, and which are set AFTER planning hearings are completed.

    I think this is a lack of duty of care by not only on the part of the developers, but also on the part of the state Governments, that do not care; or that are not trained sufficiently to know any better.

    Noel Dean

  2. Jackie Rovenksy says:

    STT as usual a well rounded and through piece. It is time a case was brought before the courts and it should not only take the company to task but the Government as well as the party who sanction by virtue of their Planning Regulations which are designed to ensure the success of the industry.
    If people who are suffering are able emotionally, physically and mentally able to withstand the trauma such action will have on them and their families, those others of us who are either affected by turbines noise, or could be, or understand and support the work to stop the Industrialization of our regional areas should put our hands in our pockets and help fund it.
    How about a show of hands from those willing to put their hands up and help financially support a case, by any amount.
    My hand is up.

  3. Thank you for a good roundup of noise and nuisance cases. it is time for a nuisance case to be brought in Australia. What is needed is:
    a) a how to guide and evidence required document for distribution to victims,
    b) the evidence to be collected,
    c) a method of funding a case.

    STT’s summary points to a high probability of success.

    A Quia Timet case, being the prevention of a nuisance being built, has always appeared to be that much more difficult; but with mounting evidence of nuisance of which the technically ground breaking work at Cape Bridgewater is only a start, is now looking like a real pathway.

  4. Well said and thank you for the information.

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