Judgment in the cause Andrew and Rosemary Milne against Stuartfield Windpower 

SHERIFF COURT OF GRAMPIAN, HIGHLAND AND ISLANDS AT ABERDEEN: 10 May 2018

The sheriff, having resumed consideration of the cause, Finds the following facts admitted or proved, namely: …

10) The planning consent was subject to a number of conditions including planning condition 17, which was in the following terms:

At wind speeds not exceeding 12 metres per second, as measured or calculated at a height of 10 metres above ground level at the site, the noise level generated by the wind turbine cluster at any noise sensitive premises shall not exceed:

a) During night hours, (2300 – 0700), 35 dB LA 90 (10 minutes) or the night hours LA 90 (10 minutes) background noise level plus 5 dBA, whichever is the greater, and;

b) During daytime hours, (0700 – 2300), 38 dB LA 90 (10 minutes) or the daytime hours LA 90 (10 minutes) background noise level plus 5 dBA whichever is the greater.

Reason: In order to ensure that neighbouring residential properties are protected from unacceptably high levels of additional noise arising from the operation of the turbines.

11) The pursuers received no formal notification of the defender’s application for planning permission for the turbines and were unaware of the precise locations chosen for the turbines until construction commenced.

12) On becoming aware of the proposed location of the turbines the pursuers did not complain or attempt to intervene to prevent construction of the turbines.

13) The turbines were constructed during 2011 and commissioned on 7 November 2011.

14) The turbines were manufactured by Enercon. They are each approximately 80 metres in height to blade tip. …

25) The nearest turbine to East Mains of Crichie (‘turbine 1’) is situated approximately 477 yards (436 metres) northeast of the dwellinghouse there, the base of the turbine being no more than 8 metres higher than the ground level of the dwellinghouse. 26) The turbines were operated for the first time on 7 November 2011, when they were tested at high speed (‘the high speed test’). On that occasion Mrs Milne was in the grounds of her property at East Mains of Crichie, exercising one of her horses. Mr Milne was working offshore. No prior notice had been given to Mrs Milne of the high speed test.

27) During the high speed test the blades of turbine 1 were rotated at high speed, which generated a loud noise for approximately a minute, after which a braking system was applied, which generated a different, very loud noise similar in character to the noise of a jet aircraft. The noise emitted by the turbines during this high speed test was frightening to Mrs Milne and to her horse, which bolted.

28) A further high speed test of turbine 1 was carried out later on 7 November 2011, with the same results. The noise emitted during the second test was again frightening to Mrs Milne and to her horse.

29) On 8 November 2011 Mrs Milne approached a member of Enercon staff who was working in the vicinity of turbine 1 and complained about the noise emitted by the turbines during the high speed test the previous day. As a result Mrs Milne has received prior notice from Enercon of all subsequent high speed tests of the turbines, although on some occasions the period of notice has been as short as 30 minutes.

30) Similar high speed testing of the each of the turbines, with similar results in terms of the volume and character of the noise emitted, has been conducted on three or four occasions each year since the first such test on 7 November 2011. Each testing period lasts around half a day.

31) After the first high speed test of the turbines on 7 November 2011 the turbines commenced routine operation under wind power.

32) Under routine operation the turbines emit noise of a volume and character which is disturbing to Mr and Mrs Milne.

33) The volume of the noise emitted by the turbines is frequently loud and intrusive to Mr and Mrs Milne’s domestic routines and activities. The volume of the noise emitted by the turbines can unexpectedly drop and, having dropped, can unexpectedly resume at an intrusive level. The noise emitted by the turbines is often clearly audible within the grounds of the pursuers’ property and is sometimes audible within their house even with the double glazed windows closed.

34) The character of the noise emitted by the turbines varies from high frequency rhythmic ‘blade swish’ corresponding to the rotation of the blades to continuous lower frequency noise. The noise often pulses in time with the rotation of the turbine blades. The frequency of the pulses increases with the strength of the wind and hence the speed of rotation. Gusts of wind can result in sudden, sharp, particularly loud pulses of noise. The noise can be maintained at an intrusive level for long periods of time, extending to days at a time, depending on the wind conditions.

35) The volume and character of the noise emitted by the turbines changes with the strength of the wind.

36) The turbines emit noise of the volume and character described in the preceding findings in fact constantly except when the wind drops to a level at which the turbine blades do not rotate, or only rotate slowly.

37) The noise emitted by the turbines has been disturbing to Mrs Milne. She became more upset and emotional as time went on due to the impact of the noise from the turbines on her peace of mind and quality of life. She experienced difficulty concentrating and became irritable and unable to relax as a result of the volume and character of the noise emitted by the turbines.

38) From approximately 1991 until January 2017 Mr Milne worked offshore in the oil industry on a four week on/ four week off rotation. This limited his exposure to the noise emitted by the turbines during the period after they were commissioned in November 2011, although during his periods onshore Mr Milne has experienced the same general level of intrusion from the noise emitted by the turbines as Mrs Milne.

39) Until February 2017 Mrs Milne spent a significant proportion of her time at East Mains of Crichie outdoors exercising, riding or tending to her horses. The noise emitted by the turbines has been particularly intrusive in relation to her domestic routines and quality of life whilst she has been undertaking these activities.

40) As a result of the noise emitted by the turbines Mrs Milne has been unable to sleep in the master bedroom of the house at East Mains of Crichie since approximately November 2012. Since then she has had to sleep in a bedroom at the opposite side of the house.

41) Mr Milne’s sleeping arrangements have also been affected by the noise emitted by the turbines. He has refused to move to a different bedroom and continues to sleep in the master bedroom when he is at East Mains of Crichie. However he is only able to sleep in that bedroom with the window closed, in contrast to his longstanding practice of sleeping with his bedroom window open.

42) One component of the noise emitted by the turbines is amplitude modulation (‘AM’), a phenomenon whereby the level of noise generated by the passing of the turbine blades through the air fluctuates periodically over time.

43) Different forms of AM are associated with the operation of wind turbines. One form (normal AM (‘NAM’)) is associated with the high-frequency ‘blade swish’ arising from the rotation of the turbine blades. Other forms of AM (‘other AM (‘OAM’)) associated with wind turbines are less well understood but include a form of OAM which results from the turbine blades coming into contact with the surrounding air at too flat an angle, resulting in the generation of low-frequency ‘thumping’ noises at locations distant from the turbine. Scientific knowledge in relation to AM as it pertains to the operation of wind turbines is a developing field.

44) AM is present within the noise emitted by the turbines situated at West Knock Farm.

45) In 2012 Mrs Milne began to keep diary entries describing the noise emitted by the turbines. She maintained that practice each year until the end of 2016.

46) Mrs Milne wrote to Aberdeenshire Council Environmental Health Department on 7 January 2012 expressing her concerns about the noise emitted by the turbines. That letter made reference to 11 almost constant noise pollution” from the turbines and complained about the 11 acoustic character” of the turbine noise as well as its volume. …

50) In response to the concerns expressed by Mrs Milne about the noise emitted by the turbines, Aberdeenshire Council served an Abatement Notice on the defender on 11 December 2013 under section 80 of the Environmental Protection Act 1990. Proceedings at Peterhead Sheriff Court, initiated by the defender, followed. Those proceedings are presently sisted.

51) In November 2016 Mr Milne took up a temporary assignment with his employer based onshore in Surrey. He commenced work in Surrey in January 2017. His assignment there is due to come to an end in November 2018.

52) Mrs Milne chose to relocate with her horses to Surrey in February 2017 in order to get away from the noise emitted by the turbines. She presently lives with Mr Milne in Surrey and her horses are stabled near to the rented property where they currently live.

53) Mr and Mrs Milne expect to return to live at East Mains of Crichie when Mr Milne’s assignment in Surrey comes to an end.

54) Mrs Milne’s state of mind and emotional wellbeing have improved since she moved to Surrey. That improvement is due to the fact that, whilst resident in Surrey, she is not subject to the noise emitted by the turbines.

55) Solicitors acting for the pursuers served a notice on the defender on or about 14 January 2017 under section 82 of the Environmental Protection Act 1990. That notice asserted that the frequency, character, duration and repetition of the noise emitted by the turbines gave rise to a statutory nuisance within the meaning of that Act.

56) As at Sunday 11 February 2018, when Mr and Mrs Milne returned to East Mains of Crichie in order to attend the proof in these proceedings, there was no abatement of the volume or character of the noise emitted by the turbines which was noticeable to them.

57) The volume of the noise emitted by the turbines has always complied with the limits imposed by planning condition 17.

58) Planning condition 17 relates only to the volume and not to the character of the noise emitted by the turbines.

Findings in Fact and Law

1) The combined effect of the volume and character of the noise emitted by the turbines situated on the defender’s land at West Knock Farm would not be tolerated by a reasonable person and amounts to a nuisance at common law.

2) The combined effect of the volume and character of the noise emitted by the turbines situated on the defender’s land at West Knock Farm amounts to a statutory nuisance within the meaning of section 79(1)(g) of the Environmental Protection Act 1990.

3) The pursuers are persons aggrieved by the existence of a statutory nuisance for the purposes of section 82(1) of the Environmental Protection Act 1990 as a result of the combined effect of the volume and character of the noise emitted by the turbines situated on the defender’s land at West Knock Farm. …

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