Wind farm noise and private nuisance: a return to common sense 

This article is a response to “Wind farm noise and private nuisance: issues arising in Davis v Tinsley” by William Norris QC in an earlier issue of the Journal of Planning Environment Law, JPL 230 (2012).

Why are residents complaining about noise?

There is no statutory minimum separation distance between turbines and dwellings in the United Kingdom. England deals on a case by case basis; Scotland has guidance suggesting 2km and Wales suggests 500m.

We are aware of a turbine 85 metres to hub height and 125.2m to the tip of the turbine blade that was erected with planning permission in England within 65m of a dwelling, i.e. within fall-over distance.

Residents’ concerns have prompted two Private Members’ bills on minimum separation distances, but these bills do not seem to be progressing.

Noise from turbines

First, we will try to give a flavour of the wind turbine noise that residents complain about. There is a whole range of noise effects, at a range of frequencies, from a gentle swishing to a loud background road roar, a ripping/lashing, a hum, and a regular pulsating thump and/or “whoompf” with an additional low-frequency content, particularly in the hours from about 20:00 to 7:00, which residents report as penetrating through their bedroom and closed windows and either preventing them from sleeping or awakening them and stopping them going back to sleep. This is generally in the context of a rural environment with very low background noise, particularly at night. The authors of this article are aware of wind farms across the country causing such noise nuisance complaints.

This is not just a UK problem – noise problems from wind turbines are reported worldwide. For example, the Australian Federal Senate Wind Farms Report June 2011 records this from a witness with 30 wind turbines within 2km of his home, the nearest 600m away:

“The types of noises that we experience depend on wind direction. The noises range from a doof-doof noise, like you would hear from a subwoofer at a party down the street, to a constant jet rumble. We can also hear the generator noise, like a fridge when it fires up – that electrical sound – and at times a whooshing noise, like a stick being swung through the air quickly. These noises are not just for a minute or two but can go on all night, not to mention the day. On average, we would say that we have interrupted sleep at least three to four nights a week and on some occasions up to five … I have tried to escape from the continuous noise by relocating to one of the four bedrooms in the house, only to be awakened by the noise from other turbines. My wife actually goes to sleep with ear plugs in. This continuous interruption to and lack of sleep has enormous impact on our lives, our business and our future. Last week the noise could be heard over the television inside the house.”

The thump/whoompf used to be called by the wind industry “enhanced amplitude modulation of aerodynamic noise”, but they have now taken to describing it in somewhat Orwellian terms as “other amplitude modulation”.

The complexity of wind turbine noise issues is highlighted by the fact that there are bi-annual international conferences on wind turbines and noise, the last taking place in 2011 in Rome.

The wind industry in the United Kingdom is also exercised about noise: Renewable UK (the trade body for the wind industry and now other renewables) held a conference in October 2011 on Wind Turbine Amplitude Modulation: Research to Improve Understanding as to its Cause and Effect.

Barr v Biffa Waste Services Ltd

The law of private nuisance has become clouded within past years following imaginative and indeed expensive defences such as those aired by Mr Norris in his article, i.e. threshold of acceptability and reasonable user.

However, since Mr Norris’s article was published, the Court of Appeal has now given judgment in Barr v Biffa Waste Services Ltd. Although not relating to wind turbines, this judgment has done much to clarify the law relating to private nuisance and “de-muddy” the waters from many of the arguments proposed. Although in the High Court, Coulson J. took up many of the arguments raised by those defending nuisance claims, the Court of Appeal has thankfully returned us to a more sensible state of affairs with the key thrust of Carnwath L.J.’s judgment being:

“Without disrespect to those efforts, I continue to believe that the applicable law of nuisance is relatively straightforward, and that the 19th century principles for the most part remain valid.”

Those 19th century principles reflect what the law of nuisance is supposed to be about – individuals carrying out what is likely to be a lawful activity but in a way that interferes with the amenity of their neighbour. Nuisance can arise from sounds and smells that in any other context would not be a problem. For example, your neighbour cutting her lawn once a week is acceptable, but to do so every day at 2:00am would arguably be a nuisance. Even the staunchest opponents of wind turbines do not try to argue that they will always be a nuisance. Nor do their proponents try to suggest that they will never be a nuisance. …

Journal of Planning & Environment Law (2012)

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