The analysis stems from a Court of Appeal ruling on 19 March 2012 involving odor from the Westmill II Landfill site in Ware, Hertfordshire (Barr & Others V Biffa Waste Services Ltd). A lower court found that there was no nuisance since the project owner was operating within the limits of his permit and there was no negligence. However, the Appeals Court overruled the lower court in ruling that 19th Century common law rights require that private individuals should be able to happily exist alongside detailed legislation governing the use of land for purposes such as a landfill site - or wind energy production. The below analysis applies the ruling of the Appeals Court to similar complaints that might be filed involving wind turbine noise.
Is compliance with a planning consent a defence to nuisance?
Planning consent for wind turbines gives permission for the erection and operation of those wind turbines. However, that planning permission does not mean that the turbine may be operated regardless of the impact on its neighbours. It would, we argue, be uncontentious that should a wind turbine start to throw ice on neighbouring properties (which has occurred with one of our clients) , regardless of compliance with a planning permission, that operation would no longer be lawful. The same principles apply with noise. If that noise is beyond “what objectively a normal person would find it reasonable to have to put up with” a nuisance exists.
This is entirely supported by Lord Hoffmann's comments in Transco Plc v Stockport MBC,8 reinforced by Carnwath L.J. at [ 97] of Barr v Biffa. Lord Hoffmann said of common law nuisance in Transco at [ 26] :
* J.P.L. 8 9 5 “ Liability in nuisance is strict in the sense that one has no right to carry on an activity which unreasonably interferes with a neighbour's use of land merely because one is doing it with reasonable care. If it cannot be done without causing unreasonable interference, it cannot be done at all.”
Carnwath L.J. in Barr v Biffa went on to consider the proposition that the legislation governing the waste operations in this case “expressly accepted” that the site would create odour. He concluded:
“ I find it impossible with respect to see how a provision which requires the use of best practicable means to ‘prevent or reduce emissions’ ( as in PPC reg.12) can be read as expressly or impliedly authorising them .”
In a wind turbine context, planning permissions do not have such a best practicable means provision, but they are generally accompanied by a noise condition. The wording and enforceability of these noise conditions is a hot topic.
Clients have successfully quashed permissions in the past on the grounds of drafting errors in the noise condition having rendered it unenforceable. Also, the noise condition generally will not address character of the noise such as the thump/whoompf “other” amplitude modulation problem, despite the Court of Appeal having upheld the Den Brook amplitude modulation condition in Hulme v Secretary of St at e & RES Developments Lt d.9
This is because the wind industry has mounted a concerted campaign against such a condition and local authorities do not generally have the expertise to recognise the utility of such a condition. There is then the further vexed issue of the local authority having the resources and expertise to undertake the complicated noise monitoring required in the event of a complaint; and if they do not do so, the residents are forced to undertake this themselves with the attendant problems of the expensive hire of noise monitoring equipment and expert, and gaining access to the operator's wind speed data, which the operator can in our experience be very reluctant to hand over.
Defendants in the past have tried to argue that compliance with a noise condition provides a defence to a claim in nuisance. However, given that the noise condition will often not address the character of the noise for the reasons stated above, and Carnwath L.J.'s judgment in Barr v Biffa, it is our contention that any noise condition cannot now be construed as authorising the nuisance.
Should a threshold be set?
Mr Norris and others before him have suggested a measured standard below which noise from turbines will not be considered nuisance. This threshold ought to be informed, he says, by the public benefit to be derived from wind energy.
Mr Norris's argument in essence is that the Government has decided that wind turbines are necessary and provide a public benefit; if they are a problem, so be it: that is a sacrifice we have to make; so let's establish a threshold which determines what sacrifice is acceptable.
Is there a public benefit that should inform any such threshold?
Putting aside for now whether or not it is possible to com e up with a threshold, should the public benefit of wind turbines have any impact on any such threshold? Mr Norris states that: “ because existing and emerging policy and guidance recognises that onshore wind development is bound to take place in rural locations in which, at least in England (assuming one is going to avoid National Parks and the like) it is almost inevitable that there will be existing or prospective neighbours who might be adversely affected by features like noise. ”
* J.P.L. 8 9 6 This is essentially the same argument that was put forward in Barr v Biffa in which it was argued by Biffa that the statutory scheme and strategy of the Environment Agency resulted in an acceptance that smell would emanate from the site. In a wind turbine context , the argument would be that there is some sort of immunity from nuisance proceedings impliedly granted to wind farm operators and developers because of the overriding public need for wind energy, as recognised by policy and the granting of planning permission, as suggested by Mr Norris.
On policy, there is no fixed strategy for onshore wind turbines. The National Renewables Energy Action Plan and the UK Renewable Energy Roadmap simply propose the use of wind turbines as one of a select ion of renewable energy sources. We also note that the Government has not carried out strategic environmental assessment of any plan or programme for onshore wind turbines (contrary to offshore wind turbines) .
Carnwath L.J. considered this at [ 82] of Barr v Biffa, in the context of a strategy by the Environment Agency. He said: “ Had any such strategy been proposed, and had the possible consequences been explained, one would have expected there to have been consultation …”
Carnwath L.J. also goes on at [ 46( ii) ] : “The common law of nuisance has co- existed with statutory controls, albeit less sophisticated, since the 19th century. There is no principle that the com m on law should ‘march with’ a statutory scheme covering similar subject matter. Short of express or implied statutory authority to commit a nuisance… there is no basis, in principle or authority, for using such a statutory scheme to cut down private law rights.”
And: “if there is a problem in meeting the need within the existing legal framework, its solution must rest with the legislature …” 10
The same principles must surely apply to the planning system . In order to claim public benefit as a defence to nuisance, the wind industry would have to point to an express immunity from nuisance proceedings. There is no such express immunity as far as the authors are aware.
Further, if a sacrifice is to be made, then there should be compensation for the person making the sacrifice. At the moment , it is “win- win” for the developer and landowner due to large public subsidies for onshore wind turbines; but “ lose- lose” for a resident who has been asked to sacrifice their amenity and the value of their property without any compensation. Contrast wind turbines with road or airport developments, where the land compensation regime provides compensation for land that is depreciated by physical factors caused by public works, with any dispute about compensation being referred to the Lands Tribunal.
Can we come up with a threshold?
Putting aside for now how any element of public benefit can or should be factored into such a threshold, is it possible to set a threshold? A number of questions fall to be answered in considering this point . Mr Norris appears to suggest that we can suit ably measure noise from turbines and from that come up with an acceptable threshold. Yet he does not go on to explain how this would be done.
What would we be measuring? It is accepted that noise from wind turbines comes in all sorts of forms, thumps, hums and whooshes. Coming up with a decibel level that may not be exceeded will not cover all * J.P.L. 8 9 7 the noise that is objectionable, e.g. a hum that is audible but is difficult to measure; a pulsing thump at night etc which is within the decibel levels but disturbs sleep.
This was another point considered by the Court of Appeal in Barr v Biffa:
“I find no support at all in those cases for a general approach of setting a ‘threshold’ for evaluating past nuisance. They turned on their own facts and in particular on the nature of the nuisance. The threshold was set primarily for the purpose of control in the future, rather than assessing whether there had been a nuisance in the past or judging reasonable user. In neither was there any dispute that the court could set such limit s; the issue was as to the number of days or events and the permissible levels. Noise nuisance arising from an organised activity such as motor-racing is susceptible to such control. The racing days would be defined with precision as could the maximum noise levels … the present case is quit e different . There was no question of Biffa being willing or able to limit their smelly activities to particular days in advance. The smells arising from the West mill site were transient and unpredictable in timing, and intensity.”
The same problems we would argue apply with wind turbines. Whilst it is clearly sensible for local authorities and planning inspectors to impose noise conditions on planning permissions, it would be manifestly unfair to say that the noise condition imposed the threshold, because the noise condition is set in advance and generally deals with mere decibel levels, not the character of the noise such as the night time thump and whoompf. To assess whether there is nuisance, one needs to experience the noise on the ground and at the correct time of day. It is not sufficient , as in our experience often occurs, for local authorities and developers to make a site visit to a wind farm at 10 am with a northerly wind direction, if the nuisance is generally experienced at 4 am in a westerly direction.
It would also be dangerous to set a threshold when the scientific community does not properly understand why a noise occurs, how to measure it and how to prevent it. 11 This would lead to exactly the situation Carnwath L.J. warned of in that it would deprive claimants of “ their right to have their individual cases assessed on their merits”
The judgment in Barr v Biffa should stand as clear notice to defendants not to cloud the issues:
"This case is a sad illustration of what can happen when apparently unlimited resources, financial and intellectual, are thrown at an apparently simple dispute such as one about nuisance by escaping smells. The fundamental principles of law were settled by the end of the 19th century and have remained resilient and effective since then. Isolated statements in individual cases, at whatever level, are of limited value unless they have been absorbed into the stream of accepted authority. Parliament may alter by statute, or the higher courts by reinterpretation of the old cases. But there is a salutary presumption that neither does so without making their intention clear. Parliament may also enact parallel systems of regulatory control; but, unless it is says otherwise, the common law rights and duties remain unaffected."
So as lawyers what should we do when faced with a reported case of nuisance? Not it seems delve into thresholds, and the behaviour of the proposed defendant; rather, as Carnwath L. J. makes clear, we should pick up our copy of Clerk and Lindsell and open the chapter on private nuisance and consider the key principles of nuisance, established long ago with a view to answering the key question-- in this particular * J.P.L. 8 9 8 scenario are these wind turbines causing noise of a nature (level and character) that objectively a normal person would find it unreasonable to tolerate?