Category Archives: Ireland fights big wind.

Enercon Admits Liability for Noise Pollution

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Niagara Wind’s Enercon wind turbines in West Lincoln, Ontario

In Irish High Court Enercon admitted its liability for claims of noise pollution created by its wind turbines.  Several families in Cork sued the wind turbine manufacturer claiming the noise from its wind turbines were creating ill health that resulted in some of the families having to abandon their homes.  The decision is being watched closely worldwide. This  lawsuit has implications for Niagara Wind project in Ontario as some residents are already reporting ill health and negative symptoms since the installation was commissioned in late 2016.

Wind farm being sued by families admits its liability

Monday, February 06, 2017

By Claire O’Sullivan
Irish Examiner Reporter

The case is next listed for hearing on April 25, and will be closely observed by many of the families living in close proximity to wind farms and who claim that there should be a greater distance between homes and turbines.

The case against Enercon Windfarm Services Ireland Ltd and Carrigcannon Wind Farm Ltd was taken by the Shivnen family and another six households in Banteer including couples, families, and one single occupant.

The householders had claimed their health had been affected by the noise emanating from the turbines since they began operating in November 2011.

Planning regulation around wind turbines remain governed by 2006 guidelines which allow companies to build turbines within 500m of private dwellings.

Updated guidelines stipulating how far wind turbines should be set back from residential homes are three years overdue.

These guidelines will also deal with noise and ‘shadow flicker’ from the turning blades.

Up to 7,000 submissions were made in the public consultation process that followed the issuing of draft guidelines by the then minister for housing Jan O’Sullivan, which set down a mandatory minimum setback of 500m “for amenity considerations”.

The draft guidelines also set a maximum day and night noise limit of 40 decibels for future wind energy development, measured outdoors at the home nearest to the wind turbine.

The guidelines also stipulated that there should be no shadow flicker at home within 10 ‘rotor diameters’ of a turbine.

The Shivnen case appeared before Mr Justice Gilligan on December 6 where the Court recorded that liability had been admitted by the defendants.

A spokesman for Enercon was unavailable for comment.

A spokesman for the Department of Housing, Planning Community, and Local Government said that, due to the programme for government, ongoing policy, and legal developments, the Department is continuing “to advance work on the guidelines and related matters in conjunction with the Department of Communications, Climate Action and the Environment, in order to bring the various issues to a conclusion as early as possible”.

“It is expected that a statement on the matter will be made in the coming weeks, outlining the timelines for implementation of the various elements,” said the spokesman.

READ AT: http://www.irishexaminer.com/ireland/wind-farm-being-sued-by-families-admits-its-liability-442172.html 

It’s Official- wind farms are a Damned Nuisance

lady-noiseThe link to the posting on The Law is My Oyster seems to be broken- so we have copied and pasted the posting.

The tort of Nuisance – basic principles

The law of (private) nuisance has been around for a long time but it has always been a poor neighbour to the more commonly litigated torts of negligence and trespass.

In a nutshell, a nuisance is “any continuous activity or state of affairs causing a substantial and unreasonable interference with a [claimant’s] land or his use or enjoyment of that land”(Bamford v Turnley [1860] 3 B&S 62).  Private nuisance is a tort or civil wrong, unlike public nuisance, which is a crime.

Something that farmers leasing their land to wind farms might not know is that a landlord can be liable where the lease is granted for a purpose which constitutes a nuisance, as in Tetley v Chitty [1986] 1 All ER 663.

For there to be a claim in private nuisance, the claimant must show that the defendant’s actions caused damage. This can be physical damage, or discomfort and inconvenience. The test for remoteness of damage in nuisance is reasonable foreseeability. In other words, was it foreseeable that a wind turbine will cause discomfort and inconvenience to nearby dwellings?  The test is an objective one: was the nuisance reasonably foreseeable? If it was, the defendant is expected to avoid it.

It is impossible to specifically define what is or what is not unreasonable but factors that are taken into account include the nature of the locality where the nuisance took place, the time and duration of the interference and the conduct of the defendant.

The plaintiff must show that the defendant’s actions have caused an interference with their use or enjoyment of their land or home/property. These interferences are indirect, and almost always the result of continuing events rather than a one-off incident. The courts have allowed cases where the interference causes emotional distress, like continuous noise / infrasound for example.

The granting of planning permission does not constitute immunity from a claim in nuisance.

The families of Shivnen, Whelan/Walsh, Sexton, Sheehan, Duggan, McSweeney and O’Connor, versus Enercon Wind Farm Services  Ireland Limited and Carraigcannon Wind Farm Limited

It was with considerable interest then that we waited for the outcome of the action in nuisance brought by the seven families from Cork who were impacted by noise pollution from a nearby Enercon wind farm. A number of the families had to abandon their homes because of the severity of the noise and some lived up to a full kilometre from the wind farm.

A judgment against the wind farm would have constituted a powerful precedent to be used against the wind industry given the multitude of examples of Irish families living in misery due to unwelcome turbine neighbours. It was for that reason that the defendant settled the matter (probably at the instance of, and financial assistance from, IWEA). Although settlements are always better for the parties concerned as it avoids the huge emotional and financial cost of litigation, it does mean that we do not have that precedent in Irish law (although there are a number of foreign precedents – see https://the-law-is-my-oyster.com/2014/11/16/are-windfarms-torture-farms/).

Although the defendant wind farm admitted liability (nuisance-order-dec-2016) the wind industry will seek to minimise this by arguing that this was a “one-off” situation for any fallacious reason that they can think of: “the unique terrain; the extraordinary sensitivity of the plaintiffs; etc etc.” Expect a carefully worded press release soon in your nearest rag.

There is still one more opportunity to achieve a damning precedent though. The case is listed for ten days in the High Court commencing 25th April 2017 to deal with damages and costs. If the High Court was to make a massive award of damages (i.e. in the millions of euros) that would send a very strong message to the wind industry that Ireland is simply not suitable to build wind farms, due to the scattered population leaving very little wide open spaces, and in they insist on building them next to people’s homes, they must be prepared to pay a lot of money, which is what the wind industry is all about anyway – money. Don’t believe all the “green” rhetoric – if you hit them hard in the pocket, they will leave, our subsidies notwithstanding.

It is for that reason that there will very likely be a financial settlement. Good news for the family involved – they can avoid the ten days of litigation and get on with their lives. Bad news for the Irish rural population, as again there will be no precedent and it is guaranteed that the settlement will come with a gag order that will prohibit any of the families disclosing the details of the financial settlement. One would almost pray for a wealthy benefactor to compensate the families up front so that the ten days’ litigation could continue (assuming that the notoriously conservative High Court would hand down a decent damages award in the millions). Any friendly millionaires out there willing to step up to the plate?

https://the-law-is-my-oyster.com/2017/01/07/its-official-wind-farms-are-a-damned-nuisance

It’s official – wind farms are a damned Nuisance

The Law is my Oyster

The tort of Nuisance – basic principles

The law of (private) nuisance has been around for a long time but it has always been a poor neighbour to the more commonly litigated torts of negligence and trespass.

In a nutshell, a nuisance is “any continuous activity or state of affairs causing a substantial and unreasonable interference with a [claimant’s] land or his use or enjoyment of that land”(Bamford v Turnley [1860] 3 B&S 62).  Private nuisance is a tort or civil wrong, unlike public nuisance, which is a crime.

Something that farmers leasing their land to wind farms might not know is that a landlord can be liable where the lease is granted for a purpose which constitutes a nuisance, as in Tetley v Chitty [1986] 1 All ER 663.

For there to be a claim in private nuisance, the claimant must show that the defendant’s actions caused damage…

View original post 731 more words

Families Forced From Their Homes Win Case Against Enercon

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“The case was taken against wind turbine manufacturer Enercon who have accepted full liability for causing nuisance to seven families who live up to 1km from the wind farm.

Seven families in Ireland have succeeded in their legal actions against Enercon for their suffering due to wind turbines erected in November 2011. Punitive damages are to be decided by the High Court in early 2017.

Families forced from homes due to wind farm noise win court case

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A number of families in Co Cork who were forced to leave their homes because of noise from a nearby wind farm have won a significant case in the High Court this week.

The families claim they have been severely impacted by noise since the wind farm began operating in 2011.

This is the first action of its kind in Ireland and may now open many wind farm developers to the prospect of legal challenges from families in similar situations.

The case was taken against wind turbine manufacturer Enercon who have accepted full liability for causing nuisance to seven families who live up to 1km from the wind farm…

READ AT: http://www.breakingnews.ie/ireland/families-forced-from-homes-due-to-wind-farm-noise-win-court-case-768141.html?campaign_id=A100

READ AT: http://en.friends-against-wind.org/oppositions/families-forced-from-homes-due-to-wind-farm-noise-win-court-case