Easter Tolmauds Court Decision – Case History

In compliance with its statutory duty following complaints, a Local Authority issued an Abatement Notice under the Environmental Protection Act 1990, s.80(3), alleging that the volume and character of noise generated by the operation of two wind turbines located on farmland amounted to a statutory nuisance.

The Notice required the operator to “abate or prohibit the occurrence or recurrence of a nuisance by taking the following steps: you are required to abate the nuisance by (date) and prevent recurrence.”

The turbines were commissioned in 2016 and a litany of complaints about noise followed. The Council issued the Abatement Notice in 2020. The Notice was appealed to the Sheriff and its operation was suspended while the Appeal took place. Although the Appeal is by way of Summary Application, the process itself was anything but summary. Senior Counsel was instructed for the Council in the Appeal.

The operator challenged the degree of specification in the Notice itself, contending that it should specify the steps that needed to be taken in order to achieve “abatement”. The Council responded with detailed defences. Those pleadings were challenged for their relevancy. The sheriff held after debate that the Notice was sufficiently specific, and rejected the operator’s preliminary pleas.

On a further appeal to the Sheriff Appeal Court, the Court held unanimously (and very quickly) that the Sheriff had been correct. The case now goes to proof, more than two years after it started.

Breach of an Abatement Notice can carry criminal penalties. Accuracy and precision in the instructions which it contains are therefore essential. The Appellant argued that it would be “unfair” if he was not given sufficient detail as to what he was required to do. However, a problem arises at once when the nuisance is allegedly caused by technically complicated equipment. It is not always possible for the regulating authority to specify exactly what should be done. It should be left to the operator, who should understand his own machinery. It is always open to the wrongdoer to take the least expensive steps open to him – but what if those steps fail to cure the nuisance, and the complaints persist?

The Sheriff Appeal Court held that it had no difficulty in identifying that the alleged nuisance was the “volume and character of the noise”, nor that if a noise is allegedly causing a nuisance, it should be abated. It is for the wrongdoer to decide how best to lessen or remove the nuisance, but if the authority does specify the means, it should do so in sufficient detail. The test is that the noise issuing from the machinery should not be plus quam tolerabile – greater than is tolerable – and that is the matter which is now to be tested at proof.

While the Appellant suggested that given the “simple notice” the only option open to him was to close down the turbines completely, and that that would be oppressive, the Appeal Court disagreed. The abatement process in the 1990 Act is inherently flexible, and in the end of the day it will be the Court that decides what is reasonable, and how abatement should be achieved. The difficulty of course lies in describing and prescribing what volume is acceptable (day and night) and what character of noise is (in)tolerable. This simple case is not yet over. It’s not at all simple!