Categories of Litigation
There are multiple broad categories of litigation which have been used by residents in different jurisdictions nationally and internationally, or are being seriously contemplated. Some examples follow.
Planning appeals against project approvals
There have been numerous cases where health and sleep related noise issues have been raised in planning appeals in a number of jurisdictions. In some more recent cases there has been judicial acceptance of the existence of the potential for harm to human health and decreased amenity and quality of life because of intrusive noise, even if the harm was not necessarily proved in those specific cases.
In a recent Australian case, the Commissioners in the Cherry Tree case have delayed making a decision for 6 months, pending further information, but have acknowledged that the symptoms are real and not imagined. Sources of noise have included coal mining noise and wind turbine noise. Our Legal Cases page contains further information about some specific cases.
Litigation to prevent wind turbines being built, or from operating or continuing to operate, is increasingly being discussed as knowledge about the adverse effects on health and property values becomes more widely known. One example of a successful injunction to prevent a wind turbine being constructed is from Nevada in the USA.
Legal actions for noise nuisance are increasingly being discussed and action is being considered or commenced in a number of different jurisdictions. One case which settled confidentially in the UK High Court in December 2011 was the case involving Julian and Jane Davis.
Noise abatement order
In some jurisdictions, taking out a noise abatement order may be an option. Scottish resident Aileen Jackson took this course of action recently, with success, and neighbours to the Munday family’s small wind turbine in the UK did the same with success in 2009.
Loss of property value, amenity, damage to animals
Some cases are also including litigation for damages for loss of property value, loss of amenity and damage to domestic animals and livestock, as well as action for noise nuisance. Whilst those circumstances do not necessarily always involve damage to human health, there is no doubt that being trapped and unable to sell a home in which residents are becoming increasingly unwell or cannot live, adds significantly to the stress which residents report, as does damage to livestock and loss of amenity. One such is the Hardscrabble case in upstate New York, where the developer Iberdrola is being sued, along with the acoustician (see below).
Litigation against acousticians
Acousticians have an ethical professional obligation to protect the health, safety and wellbeing of the public, which is enshrined in their codes of ethics (Australia and Britain) and the canon of ethics (INCE, USA) and is meant to take precedence over their relationship with their clients. Increasingly as residents become more aware of the longstanding knowledge within some members of the acoustics profession of the capacity of wind turbine noise to cause annoyance in neighbours, questions are being raised about the breaches of professional ethics which would appear to have occurred.
Hard evidence supporting this concern about unprofessional and unethical behaviour has recently been strengthened with the rediscovery of research conducted over 25 years ago in the United States, commissioned by the US Government Department of Energy. This research, conducted by numerous academic and research institutions including NASA, and presented at an American Wind Energy Association and US Department of Energy Windpower conference and published in academic journals, clearly identified the direct cause of the annoyance symptoms reported by neighbours as infrasound and low frequency noise (ILFN) emissions which then resonated inside the buildings. This research and these findings were consistent with previously reported research into annoyance from ILFN from other sources, for example Harvey Hubbard’s research.
Questions are now being asked about why this research has not been acted on, with respect to upwind bladed wind turbines, which have also been known to acousticians to emit ILFN. In particular why have regulatory authorities and acousticians working for the wind industry not measured these frequencies in the infrasound and low frequency noise range below 200 Hz; why do they not do acoustic monitoring inside homes, and why are these frequencies specifically not included in their noise prediction models, when their damaging health effects were clearly widely known 25 years ago.
This is of greater concern now, because of the increasingly widespread use of ever larger, more powerful, wind turbines and other industrial machinery, which have greater ILFN emissions proportionately and therefore are predicted to cause greater annoyance to their neighbours out to greater distances, as is being reported.
An acoustician in the United States is currently being sued, and there is interest in this avenue, particularly where predictions using current noise prediction models turn out to be completely different from the acoustic impact post-construction. A bad situation is made worse when the acousticians subsequently fail to accurately measure the full spectrum of sound emissions post-construction and the wind developers do not transparently share those results with the affected residents, but rather seek to deny the existence of a problem, or resort to blaming the victim.
Litigation against authorities for breaches of a duty of care
This is another legal avenue being contemplated by some. There is a specific judicial reference to the existence of a duty of care with respect to the wellbeing of children in a NSW Planning Assessment Commission decision in the case of a coal mine because of the impact of the noise and dust. The duty of care was highlighted by New South Wales Environmental Health Officials. It would seem that planning and health authorities have specific responsibilities and duties of care with respect to some types of environmental noise which have been known to be damaging for 25 years, yet which they are currently choosing to ignore.
Another avenue is litigation specifically against the authors of the current noise pollution guidelines, with respect to the inadequacy of the guidelines to protect the health of the residents, and the inadequate enforcement of existing guidelines.
The Waubra Foundation’s Explicit Cautionary Notice, dated 29th June 2011, was designed to put responsible authorities and individuals on notice about the existence and the seriousness of the health problems being reported by the residents. It was widely distributed both in Australia and internationally, and its contents have stood the test of time, and are now being affirmed by acoustic data collection with respect to the distance of effect in some locations being reported by residents, for example in Mary Morris’s survey at Waterloo, and measured by acousticians out to 10km. Research conducted by NASA in 1985 shows that infrasound from wind turbines was being measured out to 10km even then.
Please contact us if you are aware of other legal cases involving noise and health which may be of use to others, so we can share information about them.