Stay Pending Appeal in Private Wind Turbine Nuisance: Okunade Applied, Damages Stayed but Injunction Refused

1. Introduction

This judgment ([2026] IEHC 154) is the fourth decision delivered by Ms Justice Emily Egan in linked High Court proceedings brought by Margaret Webster and Keith Rollo, and separately by Ross Shorten and Joan Carty, against Meenacloghspar (Wind) Limited (the operator of a wind farm).

Following three modular hearings:

  • Module 1 (liability): the Court found that Wind Turbine Noise (WTN) from turbine T2 caused a nuisance during night hours and quiet waking hours.
  • Module 2 (remedy): the Court held that an injunction should issue, imposing operational restrictions on T2 to abate the nuisance.
  • Module 3 (damages): the Court awarded annual general damages to each plaintiff (for relevant periods) and “stigma damages” for diminution in capital value.

The present application concerned the defendant’s request for a stay pending its intended appeal of the module 1–3 judgments. The central issues were: (i) whether the appeal was arguable/stateable; and (ii) where, under the applicable test, the greatest risk of injustice lay if the Court either granted or refused a stay—particularly in respect of the injunction restricting T2’s operation.

2. Summary of the Judgment

The Court applied the principles in Okunade v. Minister for Justice, Equality and Law Reform [2012] 3 IR 152, as confirmed to apply beyond judicial review in Krikke v. Barranafaddock Sustainability Electricity Ltd [2020] IESC 42 and CC v. Minister for Justice and Equality [2016] 2 IR 680.

It held:

  • The defendant had established arguable grounds of appeal, though “not strong” grounds.
  • Damages and costs: the Court granted a stay on payment of damages to all plaintiffs (on the defendant’s undertaking to pay interest if unsuccessful) and stayed the costs order/adjudication.
  • Injunction: the Court refused to stay the injunction restricting T2’s operation.

The decisive feature was that damages were not an adequate remedy for Ms Webster if the nuisance continued pending appeal, whereas the defendant’s financial loss (though irrecoverable if it won the appeal) was not sufficient, on the overall balance, to justify keeping the nuisance in place. The Court placed particular weight on: the ongoing, serious interference with home life; the duration of the nuisance; the defendant’s delay; its approach to mitigation; and unneighbourly conduct.

3. Analysis

3.1 Precedents Cited

(a) The governing stay test: Okunade, Krikke, CC

The Court treated Okunade v. Minister for Justice, Equality and Law Reform [2012] 3 IR 152 as the starting point: an applicant must show an arguable case, after which the court must assess where the greatest risk of injustice lies, including (where relevant) the adequacy of damages and, in limited situations, the strength/weakness of the case.

Crucially, the judgment develops how Okunade translates into private law. Relying on Krikke v. Barranafaddock Sustainability Electricity Ltd [2020] IESC 42, the Court accepted that the same general principles apply across public and private litigation. However, it rejected the plaintiffs’ attempt to import—without adjustment—the public-law elements of the test (notably the “orderly implementation of measures which are prima facie valid” and related public-interest factors) into a stay application directed at the court’s own injunction in a nuisance action.

The Court drew from Krikke (including discussion by O’Malley J. and O’Donnell J.) the idea that public-law litigation carries a distinctive rule-of-law dimension (non-disapplication of “the law”/statutory schemes), which explains why Okunade explicitly references implementation of “measures” that are prima facie valid. In this nuisance action, the Court held, those “measures” do not naturally equate to the judgment under appeal.

At the same time, again following Krikke, the Court emphasised that even in private law the first-instance judgment is entitled to respect: a stay applicant cannot proceed as if an adverse decision “carries no weight”. That point was sharpened by the factual reality of this case: extensive hearing days, a site visit, audio recordings, and voluminous expert testimony.

CC v. Minister for Justice and Equality [2016] 2 IR 680 was relied upon for the proposition that the same principles apply to all forms of temporary orders pending final resolution, supporting the application of the Okunade framework to a stay pending appeal.

(b) Appellate deference, arguability, and findings of fact: Hay v. O'Grady, Redmond

In addressing whether the Court could weigh the strength of a pending appeal, the judgment referenced:

  • Hay v. O'Grady [1992] 1 IR 210, via the plaintiffs’ argument that scope to revisit trial fact-finding is limited.
  • Redmond v. Ireland and the Attorney General [1992] 2 IR 362, where McCarthy J. observed that on a stay application the court may consider whether factual findings are unsupported by any credible evidence, and stressed the “heavy responsibility” on advisers to assist the court on the “reality” of the appeal.

While accepting the threshold for arguability is low, Ms Justice Egan used Redmond to criticise the defendant’s broadly formulaic articulation of grounds and the limited assistance offered in showing why the appeal had substance—especially given the extended time since the module 1 judgment. Nonetheless, she ultimately concluded arguability was made out, largely because of the novelty/complexity of WTN nuisance issues and the planning/nuisance interaction.

(c) Planning permission and nuisance: Smyth; planning “character of locality”: Lanigan

A major axis of the intended appeal (and of the stay debate) concerned whether compliance (or asserted compliance) with a planning noise condition could act as a “wholly reliable indicator” of objective reasonableness for nuisance purposes. The defendant indicated reliance on Smyth v. Railway Procurement Agency and anor [2010] IEHC 291.

The judgment’s significance lies less in deciding the ultimate planning/nuisance issue (reserved for appeal) and more in:

  • treating the asserted planning-based defence as a net, potentially dispositive legal point (if it exists at all); and
  • highlighting the factual contingency: even if such a defence were available in principle, it could only apply where the planning condition actually regulated the complained-of characteristics (here, the Court found it did not regulate key WTN features such as high AM values and “thump AM”).

On “character of the locality”, the defendant referenced Lanigan & ors v. Barry & ors [2008] IEHC 29. The Court noted the citation but found the defendant’s engagement insufficiently developed to illuminate arguability on this point in the stay context.

(d) Review of expert evidence: Donegal Investment; James Elliot; Duffy

The judgment contains an important passage on appellate review of expert evidence:

  • Donegal Investment Group Plc v Danbywiske [2017] IESC 14; [2017] 2 ILRM 1 was cited for the proposition that while demeanour-based assessments attract deference, appellate courts may have somewhat greater scope where the trial judge’s preference turns on the internal logic offered by experts.
  • James Elliot Construction Ltd v. Irish Asphalt Ltd [2011] IEHC 269 was used to underscore the importance of experts demonstrating an ability to step back and engage with opposing theories.
  • Duffy v. McGee [2022] IECA 254 was cited as an example of strong appellate deference to a trial judge’s finding of expert partisanship and the consequences of failing to comply with the duty of objectivity.

These authorities influenced the Court’s scepticism about grounds of appeal that simply asserted the judge should have “preferred” the defendant’s experts, without a focused explanation of error—particularly where the trial judge had directly observed prolonged expert evidence.

(e) Neighbourliness/reciprocity in nuisance remedies: Colls; Lawrence; Fearn; Byrne

The judgment treated the defendant’s conduct—framed as “unneighbourliness”—as relevant to the discretionary balance on a stay, drawing on nuisance remedy principles rather than public-law “measures” concepts. It referenced:

  • Colls v. Home and Colonial Store Ltd [1904] AC 179 and Lawrence & Anor v Fen Tigers Ltd & Ors [2014] 2 AER 622, via Quinn J.’s discussion of whether defendants seeking to pay damages instead of being restrained acted in a neighbourly spirit.
  • Fearn v. Board of Trustees of the Tate Gallery [2023] UKSC 4, for Lord Leggatt’s “reciprocity” idea (a landowner must show neighbours the consideration he expects himself).
  • Byrne and Moorhead v. ABO [2025] IEHC 330 (and later, as spelled in the judgment, Byrne and Moorehead v. ABO), which the Court considered supportive of robust injunctive relief in WTN nuisance and the broader context that failures to engage with WTN impacts can threaten renewable energy development.

(f) “Status quo” and practical value of appeal: B & S; Star Elm Frames; Krikke

The defendant invoked B & S Ltd v. Irish Auto Trader Ltd [1995] 2 IR 142 (“counsel of prudence” to preserve the status quo if all else is equal). The Court, however, relied on the nuance in Krikke v. Barranafaddock Sustainability Electricity Ltd [2020] IESC 42 where (in context) leaving the trial order in place could be the prudent course if the appeal is not particularly strong.

The Court also cited Star Elm Frames Limited v. Fitzpatrick [2016] IECA 234 for the idea that a stay analysis considers whether refusal would render a successful appeal practically meaningless. Here, it would not: the defendant’s projected 18% revenue impact did not make an appeal victory pyrrhic.

3.2 Legal Reasoning

(a) Calibrating Okunade to private nuisance: “measures” are not the court’s injunction

The judgment’s most distinct doctrinal contribution is its clarification that, while Okunade applies generally, its public-law elements must not be mechanically transposed. The Court rejected the plaintiffs’ argument that the injunction should be treated as a prima facie valid “measure” in the Okunade sense, attracting additional weight under paras (b)(i)–(iii).

Instead, the Court located the relevant “weight” elsewhere: respect for the adjudicative process and the fact of a reasoned judgment after extensive evidence. That respect informs arguability, balance of justice, and the court’s reluctance to treat the judgment as neutralised by the mere existence of an appeal.

(b) Arguable grounds: low threshold met, but weakly supported

Ms Justice Egan criticised the defendant’s presentation as “boilerplate” and under-developed, noting the modular structure had given the defendant unusual time to refine grounds. She identified the intended core grounds as those asserting planning condition 15 as a “wholly reliable indicator” and/or a threshold metric for nuisance (grounds (ii) and (iii)).

Notwithstanding “serious reservations” about many grounds, she held arguability was met given:

  • the novelty of WTN nuisance litigation in Ireland, and
  • the under-explored interaction of planning controls and nuisance in this specific technological context.

But she expressly assessed the appeal as not particularly strong, and treated that as relevant (especially where the harms were not commensurable and damages were not an adequate proxy for ongoing intrusion into a home).

(c) Adequacy of damages and the asymmetry of harm

The reasoning is structured around the unavoidable asymmetry:

  • Defendant’s harm if no stay and it wins: irrecoverable financial losses from constrained operation (estimated €225,000 per annum) and potential covenant concerns (though not shown to be a real risk on the evidence).
  • Plaintiff’s harm (Ms Webster) if stay granted and she ultimately wins: continuing nuisance affecting sleep, health, stress, and day-to-day enjoyment of the home—harm not meaningfully reversible by later damages.

The Court accepted financial loss to the defendant was irrecoverable and therefore not adequately compensated by damages. But it emphasised two balancing points:

  • If the appeal failed, allowing continued operation would create “windfall profits” earned during a period in which the turbine ought to have been restrained, with no obvious disgorgement mechanism.
  • Damages were not an adequate remedy for continuing invasion of a person’s home life; “the relatively modest award of damages per annum is not a licence for the commission of further nuisance.”

(d) Conduct, mitigation, and delay as stay factors

The Court treated the stay decision as discretionary and fact-sensitive, identifying five decisive considerations beyond pure economics:

  1. Unneighbourliness: the defendant’s approach fell short of neighbourliness standards relevant in nuisance, weighing against a stay.
  2. Mitigation “trial-and-error”: module 2 was designed to allow the defendant to develop abatement; the defendant trialled only one “ineffectual” modification and continued to focus on “disproving nuisance”, thereby self-limiting a more nuanced interim regime.
  3. Delay post-liability: the defendant’s lack of briskness (including the still-unfinalised appeal route and grounds) counted against granting a stay that could reduce incentives to progress the appeal efficiently.
  4. Duration of nuisance: the nuisance had been ongoing for years; a further stay risked exposing Ms Webster to nuisance for a substantial portion of a 20-year permission period.
  5. Relative strength: the appeal appeared stateable but not strong; in close cases that can support leaving trial relief in place.

(e) The tailored outcome: partial stay as a minimisation tool

The order reflects a “least injustice” approach:

  • Stayed: damages (with interest undertaking) and costs—reducing immediate financial pressure and covenant risk arguments.
  • Not stayed: the injunction—preventing continued, irremediable invasion of home enjoyment pending appeal.

This is a practical template: where the successful party’s primary harm is ongoing non-pecuniary interference (sleep, mental distress, home enjoyment), the court may preserve injunctive relief, while using financial stays to temper hardship on the appellant.

3.3 Impact

(a) Stay doctrine in private nuisance: refined application of Okunade

The judgment is likely to be cited for the proposition that Okunade’s public-law “measures” emphasis is not directly transferrable to a stay of a private nuisance injunction; yet the trial judgment retains weight and cannot be treated as neutral pending appeal. This provides a structured way to reconcile:

  • the appellant’s right to appeal, with
  • the respondent’s entitlement to the benefit of a judgment, especially after extensive evidential findings.

(b) Wind turbine nuisance litigation: interim protection of the home

In WTN disputes (where harm is often episodic, nocturnal, cumulative, and health-adjacent), the judgment signals a strong judicial reluctance to allow ongoing nuisance to continue merely because damages can be quantified. The Court’s focus on the non-substitutability of peaceful home enjoyment may influence both:

  • how plaintiffs frame interim relief (emphasising irreversibility and cumulative impact), and
  • how operators approach early mitigation and engagement (since poor engagement can later weigh against them on discretionary relief).

(c) Litigation management incentives

The emphasis on delay and the need to “net down” grounds creates a practical incentive structure: broad, unfocused intended appeals may weaken the case for a stay, particularly where a stay would prolong ongoing harm.

4. Complex Concepts Simplified

  • Stay pending appeal: a temporary suspension of a court order until an appeal is decided. It is not automatic; it depends on a balancing exercise.
  • Arguable/stateable appeal: the appellant must show more than dissatisfaction; there must be a genuine, plausible basis for appellate review.
  • Balance of justice / risk of injustice: the court asks which choice (granting or refusing a stay) is more likely to cause harm that cannot later be fixed.
  • Adequacy of damages: whether money later can truly remedy the harm. Continuous interference with sleep and home enjoyment is often treated as not adequately compensable.
  • Injunction: an order requiring a defendant to stop or restrict conduct. Here it limited turbine operations at sensitive times to abate nuisance.
  • Private nuisance: an unreasonable interference with a person’s use and enjoyment of land (e.g., intrusive noise).
  • Locus standi: legal standing to sue. The defendant raised an issue because two plaintiffs sold their property during the proceedings.
  • Stigma damages: compensation for reduced capital value due to the enduring “stigma” associated with a nuisance history.
  • Condition 15 / planning compliance: a planning permission noise limit. A central dispute was whether this planning condition could effectively define what is reasonable for nuisance purposes.
  • AM (Amplitude Modulation) and “thump AM”: variations in turbine noise that can be perceived as rhythmic “swish” or more intrusive “thump”; the judgment treated these characteristics as central to the nuisance assessment.

5. Conclusion

The decision’s core takeaway is a calibrated approach to stays in private nuisance: even where an appeal is arguable and the restrained party faces irrecoverable financial loss, an injunction restraining an established nuisance may remain in force where damages cannot adequately protect the affected resident’s home life.

Doctrinally, the judgment clarifies that while Okunade governs stays across litigation types, the public-law “orderly implementation of measures” limb does not map neatly onto a stay of a private nuisance injunction—though the first-instance judgment still commands respect. Practically, it shows a court’s willingness to split the stay—staying damages and costs (with interest) to reduce appellant hardship, while refusing to prolong non-compensable interference with the home pending appeal.