Owners of Aberdeenshire farm fail in challenge of council notice ordering reduction of wind turbine noise

About this case:

• Citation:
  [2022] SAC (Civ) 005
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Murray

It was argued by Frank A Smart & Son Ltd that the notice was invalid as it failed to specify what the legal nuisance complained of amounted to, and that the sheriff who considered the validity of the notice had erred in finding it to be valid.

The appeal was heard by Sheriffs Principal Donald Murray and Craig Turnbull along with Appeal Sheriff Nigel Ross. The appellant was represented by Garrity, advocate, and the respondent by Campbell QC.

Complete cessation

In 2015, the respondent granted the appellant planning permission for two wind turbines at Easter Tolmauds farm in Torphins following an appeal. No comments were made in the initial report of the council’s environmental health officers in respect of any noise issues from the proposed development; however, the appointed reporter in the appeal process acknowledged that nearby houses may experience a small amount of noise.

The turbines were erected in 2016 and commenced operation that September. A formal abatement notice under section 79 of the 1990 Act was issued on 23 July 2020 ordering the appellant to reduce the noise levels of the turbines by 14 August 2020. The notice was appealed to the sheriff, with the appellant averring that the notice was invalid and had not sufficiently identified the circumstances giving rise to the alleged notice.

The sheriff rejected the appellant’s preliminary pleas and held that the respondent had made sufficient averments to discharge the burden of proof if they were proved. Counsel for the appellant submitted that the sheriff had misdirected himself in applying the test for validity, in that he had taken into account submissions from the respondent that innovated and expanded on the terms of the notice itself, which was insufficiently specific.

It was further submitted that without knowledge of what the appellant had to achieve by way of abatement, the only certain way of complying with the notice was to cease operation of the turbines. Where a wind turbine was operating without any breach of a valid planning condition the abatement notice was invalid if it is in terms which require complete cessation of operations as the only means for compliance.

Senior counsel for the respondent submitted that the appellant had been disingenuous as to the terms and quality of the notice. The concept of “nuisance” was a flexible concept which could be understood by the reasonable man in the context it was said to arise in. There was no doubt that the effect of the notice was that the noise level of the turbines had to be reduced.

Inherent flexibility

Delivering the opinion of the court, Sheriff Principal Murray began: “We accept the appellant’s submission that to be valid the abatement notice must set out with sufficient clarity what is complained about. We do not accept however that the sheriff erred in the manner suggested. The notice identified that there is noise coming from the turbines and required the appellant to take steps to reduce the noise.”

He continued: “On that formulation we have no difficulty in identifying, on a plain reading, that the nuisance alleged by the respondent is the volume and character of the noise generated by the wind turbines. A plain reading also informs the reader that the appellant is required to abate the noise to avoid the continuation of the nuisance.”

Addressing the appellant’s arguments on specificity, he said: “The authorities establish that the method of achieving abatement may, in appropriate circumstances, particularly where the cause of the nuisance is outside the knowledge of the affected party, be left to the perpetrator to identify and execute. There can be compelling reasons to leave the choice of the means of abatement to the perpetrator, not least that some methods may be considerably cheaper and less inconvenient than others.”

He added: “We note the inherent flexibility in the words ‘abate’ and ‘nuisance’. The notice does not, as the appellant fears, force shutting down of the turbines on the basis that it is the only guaranteed method of stopping the noise. Not all noise amounts to a nuisance. Abatement does not necessarily require elimination.”

Sheriff Principal Murray concluded: “The assessment of whether the noise constitutes a nuisance is, a matter of fact and degree. We do not accept the contention of the appellant that further specification they suggest is required. The averments of the respondent are sufficient, to allow the case to proceed to proof. The appellant has fair notice of the case being made against it. We shall therefore refuse the appeal.”