Byrne & Anor v Abo Energy Ireland Limited & Ors (Approved)

Factual and Procedural Background

The Plaintiffs are owners and residents of a family home located near a wind farm in a rural area of Wexford. The Defendants operate the Gibbet Hill wind farm, consisting of six turbines, three of which (T3, T5, and T6) are the focus of this nuisance claim. The wind farm became operational in May 2013. The Plaintiffs experienced substantial noise nuisance from the turbines, including amplitude modulation and low frequency tonal noise, as well as shadow flicker. Despite complaints and involvement of the local authority, the Defendants largely failed to engage substantively with the Plaintiffs' concerns over a period of twelve years.

During a six-week trial commencing in February 2025, the Defendants admitted liability for nuisance and implemented partial mitigation measures, including nighttime turbine shutdowns. They proposed limited further shutdowns and payment of damages for ongoing nuisance. The Plaintiffs sought full abatement of the nuisance by permanent shutdown of the relevant turbines and damages for past and future nuisance, including aggravated and exemplary damages.

The Court conducted a detailed assessment of the nature and impact of the nuisance, expert evidence on noise characteristics, interaction between parties, potential mitigation, and the relevant legal principles. The Defendants' late engagement and failure to propose effective mitigation measures were significant factors in the proceedings.

Legal Issues Presented

1. What is the appropriate measure of damages for the nuisance suffered by the Plaintiffs to date?
2. Is it necessary to consider whether there has been a breach of the Plaintiffs' constitutional rights under Articles 40.3 and 40.5 of the Constitution?
3. Should the Court grant a full injunction to restrain the operation of the relevant turbines or allow a partial injunction combined with damages for future nuisance?
4. Should aggravated damages be awarded for the Defendants' conduct in relation to the nuisance complaint?
5. Should punitive or exemplary damages be awarded?

Arguments of the Parties

Plaintiffs' Arguments

• Damages should be awarded on a general damages basis reflecting the continuous and severe interference with their enjoyment of their home, rather than solely on diminution of property value.
• The nuisance infringes their constitutional rights, including the inviolability of their dwelling.
• A full injunction is warranted as the Defendants have failed to act in a neighbourly manner or propose effective mitigation.
• Aggravated damages are appropriate due to the Defendants' prolonged failure to engage and mitigate.
• Punitive damages are merited given the Defendants' substantial revenues and deliberate disregard of complaints.

Defendants' Arguments

• Damages for past nuisance should be assessed by reference to the notional reduction in the capital value of the Plaintiffs' property, relying on English authorities such as Hunter v Canary Wharf and Dobson v Thames Water.
• The tort of nuisance adequately protects the Plaintiffs' rights; constitutional claims are unnecessary.
• The Court has discretion to grant a partial injunction combined with damages for future nuisance, considering the public interest in renewable energy.
• They have admitted liability and apologized, and thus contend aggravated damages are not appropriate.
• Punitive or exemplary damages are not justified as the conduct does not reach the threshold for such awards.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Patterson v Murphy [1978] ILRM 85	General damages payable to each plaintiff for nuisance causing annoyance, discomfort, inconvenience and mental distress.	Supported awarding separate general damages to each Plaintiff for the nuisance to date.
Hanrahan v Merck Sharp & Dohme [1988] ILRM 629	Affirmed that nuisance claims protect property rights and that interference must be substantial and unreasonable.	Used to confirm that the tort of nuisance protects constitutional property rights and supports damages for interference.
Webster and Rollo v Meenacloghspar (Wind) Ltd [2024] IEHC 136 (Webster No.1)	Recent comprehensive consideration of noise nuisance and damages assessment principles.	Adopted the legal framework for assessing noise nuisance and damages.
Hunter v Canary Wharf [1997] AC 655	Damages for nuisance assessed by reference to injury to property, not personal discomfort; damages not increased by number of occupiers.	Considered but court rejected exclusive reliance on this approach, favoring a more flexible assessment.
Dobson v Thames Water [2009] 3 AER 319	Damages for nuisance generally assessed by diminution in property value.	Considered but court favored a broader approach reflecting duration and impact on occupants.
Lawrence v Fen Tigers Ltd [2014] 2 AER 622	Guidance on discretion to award damages instead of injunction; public interest relevance; neighbourly conduct.	Applied principles on injunction vs damages, public interest, and neighbourly conduct in deciding relief.
Fearn v Tate Gallery [2023] 2 AER 1	Public interest relevant to remedy but not liability; injunction discretion; balancing conflicting rights.	Referenced in context of balancing public interest in renewable energy and Plaintiffs' rights.
Conway v INTO [1991] 2 IR 305	Principles governing aggravated damages including conduct after the wrong.	Applied to assess aggravated damages based on Defendants' conduct.
McIntyre v Lewis [1991] 1 IR 121	Exemplary damages require deliberate and conscious violation of rights.	Considered in rejecting exemplary damages due to insufficient proof of deliberate violation.
Clarke v O'Gorman [2014] 3 IR 340	Existing tort law suffices to vindicate constitutional rights unless shown otherwise.	Applied to reject separate constitutional claim as tort of nuisance was adequate.
Verein Klimaseniorinnen Schweiz and Others v Switzerland (ECtHR, 2024)	Environmental nuisances may engage Article 8 ECHR if actual interference and sufficient severity shown.	Referenced to support finding that admitted nuisance engaged Plaintiffs' constitutional rights.
Jaggard v Sawyer [1995] 2 AER 189	Damages in lieu of injunction may reflect value of rights lost and benefit to defendant.	Referenced in discussing assessment of damages for future nuisance.
Shelfer v City of London Electric Company [1895] 1 Ch 287	Traditional criteria for awarding damages instead of injunction; damages must be small and adequate.	Referenced but court emphasized discretion and modern flexible approach.
Cullen v Cullen [1962] IR 268	Lord Cairns Act discretion to award damages instead of injunction should be exercised only in exceptional cases.	Applied to emphasize cautious exercise of discretion and public interest balance.
Walsh v Lonsdale (1882) 21 Ch D 9	Equity prevails over common law; courts of equity act in personam to compel performance.	Discussed in context of Lord Cairns Act and Court's discretion to award damages.
AIB v Diamond [2012] 3 IR 549	Damages may not be an adequate remedy for loss of property rights; injunction may be required.	Applied to support injunction over damages for ongoing nuisance.
Munnelly v Calcon [1978] IR 387	Principle of restitutio in integrum guides assessment of damages; damages must be reasonable and fair.	Applied to guide damages assessment for nuisance.

Court's Reasoning and Analysis

The Court acknowledged the Defendants' admission of liability for nuisance and the detailed evidence demonstrating substantial interference with the Plaintiffs' use and enjoyment of their home and garden, including sleep disturbance and intrusion by amplitude modulation and low frequency tonal noise. The nuisance was described by experts as extreme and one of the worst cases encountered.

Regarding damages for the nuisance to date, the Court rejected the Defendants' approach of relying solely on diminution in capital value of the property, as this could produce unjust and discriminatory outcomes, failing to reflect the constitutional rights involved. Instead, the Court adopted a flexible, principled approach aligned with Irish precedent, awarding general damages to each Plaintiff individually, reflecting the severity, duration, and nature of the interference.

The Court found the constitutional claims unnecessary as the tort of nuisance adequately protects the Plaintiffs' rights, including those under Articles 40.3 and 40.5 of the Constitution.

On the question of injunction, the Court considered the public interest in renewable energy but emphasized that this did not outweigh the Plaintiffs' prima facie right to an injunction. The Defendants' failure to engage meaningfully, investigate, or propose mitigation measures (beyond limited shutdowns) was a critical factor. Expert evidence confirmed that only a full shutdown of the three turbines would abate the nuisance. The Court therefore concluded that a full injunction permanently shutting down turbines T3, T5, and T6 was appropriate.

Aggravated damages were awarded due to the Defendants' prolonged failure to engage substantively with the Plaintiffs' complaints, refusal to cooperate with the local authority, and failure to mitigate the nuisance despite being on notice and generating substantial revenues. The Defendants' witness was found to have limited knowledge and involvement, and no evidence was presented from actual decision-makers.

The Court declined to award exemplary damages, finding insufficient evidence that the Defendants acted with deliberate and conscious disregard of the Plaintiffs' rights. The Defendants' conduct, while inadequate, did not reach the high threshold required for exemplary damages. The Court noted the Defendants' admission of liability, apology, and partial shutdowns during the trial as mitigating factors.

No award was made for stigma damages related to a notional reduction in property value post-injunction, as this was speculative and the nuisance would be fully abated by the Court's order.

Holding and Implications

The Court's final decision is as follows:

• The Plaintiffs are awarded general compensatory damages for the nuisance to date of €120,000 to the first named Plaintiff and €180,000 to the second named Plaintiff.
• Aggravated damages are awarded in the amounts of €24,000 and €36,000 respectively.
• An injunction is granted permanently restraining the Defendants from operating turbines T3, T5, and T6 at the Gibbet Hill wind farm.

These awards are joint and several against all Defendants.

The Court rejected the Defendants' proposal to allow continued operation with partial shutdowns combined with damages for future nuisance, principally due to the Defendants' failure to engage in mitigation efforts and the serious nature of the nuisance. The Court also declined to award exemplary damages or stigma damages.

No new precedent was established beyond the application of existing nuisance law principles, constitutional protections, and injunction discretion in the context of wind farm noise nuisance. The decision underscores the importance of neighbourly conduct and substantive engagement by operators of potentially intrusive facilities, particularly in balancing public interest in renewable energy with individual property rights.