‘If they build it, we will sue’ 

Do industrial wind turbines lower the value of property nearby? An Ontario Superior Court Justice said last week they do. This has opponents of these hulking machines looming over their homes and communities cheering in the streets. They believe the justice’s words have opened a door to enable them to claim and recover damages from the owners of these projects resulting from diminished property value.

Eric Gillespie reported to a packed house at the Regent Theatre last week that Justice Susan Healey had accepted expert testimony that property values decline between 22 and 50 per cent with the arrival of industrial wind turbines. She was ruling on a claim by residents of Clearview Township, near Stayner, seeking damages from wpd Canada—the same developer working toward erecting 29 turbines in South Marysburgh from Milford to the National Wildlife Area at Long Point.

Justice Healey ruled that it was too soon for the residents to bring their action against the developer, as the project has not yet been approved, and as such, damages have not yet occurred. But, significantly, Justice Healey said that if the project is approved, the residents can move ahead with their claims.

In her ruling Justice Healey wrote: “In this case the court accepts that the plaintiffs have suffered, and are currently suffering, losses culminating in diminished property values.”

The court accepted evidence from Ben Lansink, a land appraiser, that “they have already suffered harm through a loss in property values and the corresponding interference with the use and enjoyment of their properties.”

Gillespie, also acting for the residents of Clearview, said the court’s words establish an important principle and open a doorway to enable residents to sue for damages for lost property values.

“Wind companies and government have said all along that property values aren’t affected by wind turbines,” said Gillespie, an environmental lawyer acting for Prince Edward County Field Naturalists (PECFN) and the Association to Protect Prince Edward County (APPEC). “They can no longer claim this.”

Gillespie and others believe this exposes wind developers and property owners to damage claims across the province. The ruling is expected to send a chill throughout the wind industry in Ontario causing landowners, financiers and developers to re-evaluate these projects, given their exposure.

Gillespie expects the court’s words to open a floodgate.

“Dozens of plaintiffs who have already started actions appear to have had the right to bring claims validated” said Gillespie. “We can definitely expect more claims now that this door has been opened.”

Not all are convinced of Gillespie’s interpretation of the justice’s words.

Kevin Surette, spokesperson for wpd Canada, says there is an important difference between the court accepting evidence and validating it. He says that if the judge had ruled the matter could go to trial, his company would have challenged the evidence.

The Pembina Institute also tried to pour cold water on the decision last week. Legal specialist Ben Thibault wrote that Justice Healey used “an unfortunate choice of words that can be misleading in isolation.”

Thibault cautions that any future action against a wind developer cannot use the justice’s words because she was not making a finding of fact, but rather determining whether this action could proceed to trial.

The Pembina lawyer went further, suggesting the justice didn’t actually intend her words to be taken as fact; rather, she was engaging in a “thought experiment” to aid her in arriving at a determination to dismiss the issue.

Following the action taken in Clearview, 20 County families filed a $14 million claim for damages against wpd Canada and 20 participating South Marysburgh landowners.

North Marysburgh resident Alan Whiteley picked up the theme in his remarks to the CCSAGE (Concerned Citizen’s for Safe Appropriate Green Energy) gathering last week. He suggested that if all potential victims of industrial wind turbines expressed their intention to take action for lost property values, landowners and developers be forced to reconsider the risks and their exposure.

“We need to make them nervous about their profit,” said Whiteley. “If they build it we will sue. We all have to say it.”