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Legal Cases

This section contains links to and key extracts from some of the judgments and planning decisions or orders relating to actual or anticipated damage to health from noise pollution, annoyance and loss of amenity, from sources of noise including wind turbines and coal mines.

They are organised by country in alphabetical order, with the most recent cases in each country being listed first. Further information is currently being added to this section, and we welcome contributions from different jurisdictions.

Australia

Proposed Cherry Tree Wind Development
Victorian Civil Administrative Tribunal, (VCAT) Victoria

Infigen v Mitchell Shire Council, Trawool Landscape Guardians and Waubra Foundation

The wind developer, Infigen, appealed against the local council (Mitchell shire council) who decided not to approve the wind development after strong representation from the local community, many of whom opposed this development. The developer appealed to VCAT, and the case was heard over many weeks with oral evidence in January, February and early March, 2013.

Documents which may be of interest include:

Waubra Foundation CEO’s statement of evidence

Infigen Turbine Host David Mortimer’s statement of evidence

Transcript of Dr David Black’s oral testimony

Waubra Foundation Chairman’s closing statement

Preliminary remarks 6th March, 2013

The Commissioners took the unusual step of issuing preliminary remarks.

In the mind of the Tribunal there are two issues.

  • Is there a causal link — physiological or psychological – between wind farms and the impact on health or people living in proximity.
  • If so – and this issue is as important as the causation issue – what is the incidence of these symptoms among the population of residents living in proximity to wind farms, and how does that incidence vary (if it does at all) with distance from the wind turbines. Does it affect 5% or 50% of those living in proximity to a wind farm?

It is arguable that the application of the precautionary principle requires the proponents to prove that there is no causal link between wind farms and deleterious health effects or, if there is, that it affects only a small proportion of the population.”

Interim Orders handed down 4th April, 2013

The Commissioners (Wright and Liston) made the following remarks:

Para 116
“There is evidence before the Tribunal that a number of people living close to wind farms suffer deleterious health effects. The evidence is both direct and anecdotal. There is a uniformity of description of these effects across a number of wind farms both in southeast Australia and North America. Residents complain of suffering sleep disturbance, feelings of anxiety upon awakening, headaches, pressure at the base of the neck and in the head and ears, nausea and loss of balance

Para 117
“In some cases the impacts have been of such gravity that residents have been forced to abandon their homes”

Para 118
“On the basis of this evidence it is clear that some residents who live in close proximity to a wind farm experience the symptoms described, and that the experience is not simply imagined

The Commissioners have delayed making a decision for 6 months until further information is available, particularly concerning issues of causation, and distance of impact at existing wind developments especially beyond 2km, as well as the proportion of the local residents affected. The Commissioners acknowledged they are operating in a knowledge vacuum.

Canada

Erikson v Ministry Of the Environment & Suncor
Environment Review Tribunal, Ontario 18th July, 2011

This wind development was initially approved by the planning authority, and local residents concerned about the impact of the development appealed to the Environment Review Tribunal in Ontario.

Documents which may be of interest include:

Dr Robert McMurtry’s statement of evidence, February 2011

Judgment, 18th July, 2011

The Tribunal members stated, on the basis of expert evidence to the court, that wind turbines can cause harm to residents, and recommended research. The precise wording of the judgement (p207)  and the reference is below:

“While the Appellants were not successful in their appeals, the Tribunal notes that their involvement and that of the Respondents, has served to advance the state of the debate about wind turbines and human health. This case has successfully shown that the debate should not be simplified to one about whether wind turbines can cause harm to humans. The evidence presented to the Tribunal demonstrates that they can, if facilities are placed too close to residents. The debate has now evolved to one of degree.”

* Environmental Review Tribunal, Case Nos.: 10–121/10–122 Erickson v. Director, Ministry of the Environment, Dated this 18th day of July, 2011 by Jerry V. DeMarco, Panel Chair and Paul Muldoon, Vice-Chair, http://www.ert.gov.on.ca/english/decisions/index.htm

New Zealand

New Zealand Wind Farms V Palmerston North City Council
High Court decision 20th June, 2013
RE: Te Rere Hau wind development

This case was an appeal by the wind developer to the High Court of New Zealand, against the decision of the lower Environment court that they were bound by their own noise predictions in the project application, in addition to the specific noise standards stipulated in the planning consent conditions. Before construction of the wind development was complete, it was evident that the initial noise predictions were lower than those actually emitted by the constructed wind turbines, and the consequent impact on the residents was greater. The judgment can be accessed here.

United Kingdom

Julian and Jane Davis
English High Court, confidential settlement December 2011

A couple have settled a High Court damages action against the owners and operators of a wind farm they say drove them from their farmhouse home with its ”unbearable” noise.

Local magistrates court — Noise abatement orders

Noise abatement orders have been applied for and awarded by local magistrate in both England and Scotland.

United States of America

Supreme Court of the State of Nevada
Injunction to prevent construction of a wind turbine granted, February 2013

In February, 2013 the Supreme Court of the State of Nevada (USA) upheld a decision made by a district court to grant an injunction against the construction of a wind turbine.

The findings say:

We conclude that in this case, substantial evidence exists to support the district court’s conclusion that the proposed wind turbine constitutes a nuisance.”

One reason given for granting the permanent injunction was that the turbine would create a noise nuisance.

A nuisance is “[a]nything which is injurious to health, or indecent and offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.“‘

Other reasons given for the injuction include loss of amenity, shadow flicker, gigantic form of the turbine in a quiet setting, and property devaluation.

Read the Nevada Supreme Court judgement.