MILNE, ANDREW MILNE AND MRS ROSEMARY MILNE AGAINST STUARTFIELD WINDPOWER LIMITED

Factual and Procedural Background

The Plaintiffs, spouses residing at a smallholding known as East Mains of Crichie in rural Aberdeenshire, own their property near West Knock Farm, where the Defendant, a limited company, operates three wind turbines. Planning consent for the turbines was granted in April 2011, subject to noise limits, but the Plaintiffs were not formally notified of the application and only became aware of the turbines' proximity once construction began. The turbines, approximately 80 metres tall, commenced operation in November 2011 and generate aerodynamic noise correlated with wind speed.

The Plaintiffs complained of intrusive noise from the turbines, describing it as loud, variable in character, and disturbing to their domestic life and wellbeing, particularly affecting Mrs. Plaintiff. Despite some mitigation efforts and an Abatement Notice served by the local authority, the noise persisted. The Plaintiffs relocated temporarily to Surrey in 2017 due to the noise impact but intended to return after a temporary work assignment ended.

Proceedings were initiated under the Environmental Protection Act 1990 alleging statutory nuisance due to noise from the turbines. The case was heard in February and March 2018, with evidence from the Plaintiffs, a local resident witness, and acoustic experts for both sides. The court found the Plaintiffs credible and the noise constituted a nuisance at common law and statutory nuisance under the Act. The court reserved decision on the appropriate order for abatement and scheduled a further hearing.

Legal Issues Presented

1. Whether the noise emitted by the Defendant's wind turbines constitutes a statutory nuisance under section 79(1)(g) of the Environmental Protection Act 1990.
2. Whether the Plaintiffs are persons aggrieved entitled to seek relief under section 82 of the Environmental Protection Act 1990.
3. The appropriate terms and scope of any order under section 82(2) of the Environmental Protection Act 1990 to abate the nuisance and prevent its recurrence.
4. The relevance and effect of compliance with planning condition 17 on the question of nuisance and remedy.

Arguments of the Parties

Appellant's Arguments

• The Plaintiffs argued that the combined volume and character of the turbine noise constitute a nuisance at common law and statutory nuisance under the 1990 Act.
• They relied primarily on non-technical evidence describing the intrusive and variable nature of the noise, its persistence, and its significant adverse impact on their quality of life, particularly Mrs. Plaintiff’s emotional wellbeing.
• The Plaintiffs did not assert that amplitude modulation (AM) was the sole cause of nuisance but acknowledged it as a possible contributing factor.
• The Plaintiffs contended that compliance with planning condition 17, which addresses noise volume only, does not preclude a finding of nuisance based on noise character and impact.
• They sought a declarator of statutory nuisance and an order for abatement under section 82(2) but accepted that the appropriate means of abatement should be determined after the finding of nuisance, given the technical complexities.
• They relied on the case of Robb v Dundee City Council for the legal test of nuisance and contended that the noise was intolerable to a reasonable person.

Appellee's Arguments

• The Defendant denied the existence of a statutory nuisance, relying on compliance with the detailed planning condition 17, which sets conservative noise limits.
• The Defendant emphasized the pre-eminence of the ETSU-R-97 guidance and associated regulatory framework for assessing wind turbine noise, accepted by the majority of acoustic professionals.
• The Defendant challenged the Plaintiffs’ evidence as exaggerated and suggested the Plaintiffs may be unusually sensitive to noise.
• They noted the absence of medical evidence supporting health impacts and the lack of independent corroboration from other local residents, except for one witness who could not pursue legal action due to financial constraints.
• The Defendant submitted that technical evidence showed the turbines complied with noise limits, including with penalties for amplitude modulation, except for minor recent breaches during unoccupied periods.
• They argued that planning permission and compliance with conditions are relevant to the assessment of nuisance and the appropriate remedy.
• The Defendant contended that any abatement order should be specific but recognized the complexity of specifying mitigation measures at this stage.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully assessed both non-technical and technical evidence. It found the Plaintiffs and their supporting witness credible and reliable regarding the volume, character, and impact of the turbine noise. The evidence described noise varying with wind speed, including rhythmic pulsing and sudden changes in volume and character, which was intrusive and disturbing to the Plaintiffs’ domestic life and wellbeing.

The court acknowledged the technical complexity surrounding amplitude modulation (AM) and the competing acoustic assessment methodologies (ETSU-R-97 versus BS 4142). It preferred the ETSU-based approach favored by the majority of experts and noted that AM was present but not necessarily the dominant cause of nuisance.

The court emphasized that the nuisance claim was not based solely on noise volume, which complied with planning limits, but on the combined effect of volume and character, including unpredictability and persistence. It rejected the Defendant’s argument that compliance with planning conditions precluded nuisance, citing relevant Supreme Court authority that planning permission is not a defence to nuisance claims.

The court found no evidence that the Plaintiffs were unusually sensitive or exaggerating. It noted the absence of medical evidence but held that nuisance can be established on the basis of intolerability to a reasonable person. The court declined to specify exact mitigation measures at this stage, recognizing the technical and practical complexities, and indicated that the Defendant should propose acceptable means of abatement short of decommissioning.

Holding and Implications

The court GRANTED the Plaintiffs’ first crave, declaring that the Plaintiffs are properly aggrieved by the commission of a statutory nuisance caused and permitted by the Defendant arising from noise emitted by the Defendant’s wind turbines at West Knock Farm.

The court REPELLED the Defendant’s pleas in law and sustained the Plaintiffs’ pleas in law, except that the claim that the noise was prejudicial to health was not sustained.

Consideration of the appropriate abatement order under section 82(2) of the Environmental Protection Act 1990 was continued to a further hearing to allow the parties to discuss and propose mitigation measures, with the Defendant bearing the onus to identify acceptable steps short of decommissioning the nearest turbine.

No new legal precedent was established. The decision confirms that compliance with planning noise limits does not preclude a statutory nuisance finding where the character and impact of noise are intolerable, and underscores the court’s obligation to make an abatement order where statutory nuisance is found.