Andrew and Rosemary Milne from Northern Aberdeenshire made an application to a Sheriff Court for a noise abatement order because they had been troubled over many years by noise from one of three 80m turbines set in a straight line northeast of the house and stables. The machine made a noise like a fleet of helicopters at many hours of the day and night. The local authority had given the cluster of Enercon E 48s planning permission in 2009. The Environmental Health department did subsequently determine there was a noise nuisance, serving a Statutory Noise Nuisance Notice in 2013. However Aberdeenshire Council failed to enforce their notice leaving the Milnes no option but to pursue a private case.

The Environmental Protection Act 1990, s. 82 provides a little known but simple method for members of the public to take their own action, by setting out their story in a Summary Application, and after serving a Notice on the alleged wrongdoer, to bring the matter before a Sheriff. While expert help on noise levels and what amounts to a “statutory nuisance” is required, the procedure is free of most of the procedural complexities which sometimes accompany litigation. (Check if you are covered for legal expenses on your household insurance which may help with costs).

The trial lasted five days, and the decision found the existence of a statutory nuisance and an abatement notice has been issued.  A compromise settlement was reached which has resulted in compulsory “trimming” of the blades of one of the three turbines when the wind blows in a certain directional range and within certain wind speed parameters (as described in the copy of the Interlocutor below).

 

Andrew and Rosemary are delighted that the case has finally reached a conclusion and would like to thank their team – Mark Boni of Balfour + Manson, Dick Bowdler, Acoustic Consultant and John Campbell QC.  Grateful thanks also to everyone who sent good wishes and offered support over the last very stressful eight ears.

INTERLOCUTOR

Aberdeen 19 February 2019 Sheriff Miller The Sheriff, on Joint Motion No. 17 of Process, Discharges the Hearing previously assigned to 21st February 2019; Allows Joint Minute for parties to be received and to form number 18 of Process;  having considered same Interpones authority of the Court thereto and in terms thereof: 1. In terms of the pursuers’ second and third craves, Grants an Abatement Order under and for the purposes set out in section 82(2) of the Environmental Protection Act 1990 permitting the defender or those instructed by, or contracted to, the defender to continue generally to operate Turbine 1, currently installed at West Knock Farm, Stuartfield (“T1”); but requiring the defender or those instructed by , or contracted to, the defender, on all occasions during normal operation when the wind direction at T1, as measured at T1, is within the range 165 to 330 degrees of North, and the wind is blowing in the wind speed range of 5.3 to 10.6 metres per second as measured at hub height, to operate T1 only at an eight degree blade pitch angle or less and in a 600kW or lower power mode; 2. Dismisses the pursuers’ fourth crave; and 3. Finds the defender liable to the pursuers in the expenses of the action as taxed or agreed, except insofar as already dealt with; Allows an account thereof to be given in and Remits same when lodged to the Auditor of Court to tax and Report theron; Certifies Mr Dick Bowdler as a skilled witness who prepared reports for the pursuers; and Certifies the cause as suitable for the employment of Senior Counsel.

Sheriff Miller

Sheriff

 

 

 

 

 

 

 

 

 

 

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