Bourne health board seeks injunction against Plymouth wind farm
Cape Cod Wicked Local
19 November 2015
The Future Generation wind turbine project at cranberry grower Keith Mann’s Head of the Bay tract in South Plymouth may be hauled into superior court, likely in Barnstable.
The Bourne Board of Health is asking selectmen to authorize Town Counsel Robert S. Troy to request a court injunction — expressly to halt wind-farm construction.
The request comes from neighboring Morning Mist Lane residents in Buzzards Bay. They say they will be “directly impacted” by at least one of four turbines now going up.
The residents cite concerns related to flicker, noise, harmonics and low-frequency impacts and the health board has listened, even as Future Generation attorney Jon Fitch of Sandwich argues the Bourne board cannot apply its turbine review bylaw to a Plymouth project.
If there is an enemy for the group, it is time. One turbine can already be seen from the Route 25 connector and Head of the Bay Road.
Bourne Health Board Chairman Kathy Peterson said members are “following the best option left open to us,” notably a court injunction ordering turbine construction to cease and desist while possible impacts are sorted out.
Peterson said Future Generation has sidestepped all board requests to file for Bourne variance review under the town’s turbine bylaw. “We’ve asked repeatedly for sound data to review about what’s being put up but we haven’t received it,” she said Nov. 18.
Peterson told the Buzzards Bay residents that, even if Troy is directed to seek injunctive relief against Future Generation, it would still take time to prepare a case and “get before a judge.” Meanwhile, construction continues.
“They have an attorney guiding everything they do,” Peterson said. “We don’t have that.”
Fitch attended the Nov. 18 discussion with the health board but he did not comment on unfolding developments.
It was unclear when selectmen might meet again to discuss the health board request. An injunction to the extremely spending-conscious board may not seem so modest an objective. The health panel will continue its wind farm discussions Dec. 9.
The Mann-tract wind farm plan has caused a stir in Bourne to an extent that the selectmen’s vote to permit nightly turbine-equipment transport through Buzzards Bay Village via trucks was 3-2, with board members Peter Meier and Michael Blanton opposed to what was a detailed and straightforward – if not routine – special permit application.
In another respect, an injunction — should it be granted — might serve to shift some Cape Cod anti-turbine sentiment from Falmouth to Bourne. Indeed, a Falmouth resident urged the Bourne health board on Nov. 18 not to let the Head of the Bay wind farm happen.
Cape Cod Wicked Local
Good to see Future Generation playing the role of responsible corporate citizen there! Obviously falling over itself to cooperate with the body charged with looking after the health of citizens.
Deliberately withholding evidence that unequivocally demonstrates their guilt, is only one part of the wind industry’s arsenal, when it comes to destroying neighbour’s rights to live in, use, sleep in and otherwise enjoy the comfort of their very own homes. Although, when the evidence is about to sink them, they’re usually pretty quick to get their pet acoustic consultants to rewrite their (unhelpful) reports; and to ‘replace’ them with completely fabricated versions – in order to avoid pesky planning controls and having their subsidy entitlements revoked:
The wind industry, its parasites and spruikers have known all about the problem of incessant turbine generated low-frequency noise and infrasound over 30 years and have been lying about it and covering it up ever since:
The ‘standards’ written by the wind industry hold all the integrity of VW’s diesel emissions control ‘technology’ – and will end with the same raft of litigation against those responsible:
What the wind industry fears most are actions like those being taken by the Bourne Board of Health and individuals out to protect their common law rights to live free of interference from turbine noise and vibration.
What is fairly obvious to any human being gifted with our good friends ‘logic’ and ‘reason’ is that if you deprive someone of sleep over an extended period, their health will suffer.
Even after one ‘rough night’, you don’t ever hear the sufferer bubbling about how much better they felt in the morning. No, the usual response is about telling those around them to keep out of their way for the day, or there’ll be trouble (often in terms too ‘blue’ to print). However, that ‘trouble’ manifests as a danger not just to the sufferer and his nearest and dearest, but to a range of others who might end up tangling with the insomniac, as their sleep-deprived day draws on:
Alive to the critical importance of regular, quality sleep to health, the common law has recognised a person’s right to a decent night’s sleep in their own home for over two centuries.
STT’s Nuisance “In-a-Nutshell”
Nuisance is a long recognised tort (civil wrong) at common law based on the wrongful interference with a landowner’s rights to the reasonable use and enjoyment of their land.
Negligence is not an element of nuisance, although aspects of the former may overlap with the latter. Where, as here, the conduct is intentional (ie the operation of the wind turbines is a deliberate act) liability is strict and will not be avoided by the defendant showing that it has taken all reasonable steps to avoid the nuisance created. Indeed, the conduct of the defendant is largely irrelevant (unless malice is alleged); the emphasis is on the defendant’s invasion of the neighbouring landowner’s interests.
A defendant will have committed the tort of nuisance when they are held to be responsible for an act indirectly causing physical injury to land or substantially interfering with the use or enjoyment of land or of an interest in land, where, in the light of all the surrounding circumstances, this injury or interference is held to be unreasonable.
The usual remedy for nuisance is an injunction restraining the defendant from the further creation or continuance of the nuisance. Injunctions are discretionary, in all cases, and will not be granted unless the nuisance caused is significant.
Where interference with the enjoyment of land is alleged, the interference must be “substantial” and not trivial.
Interference from noise will be substantial, even if only temporary in duration, if it causes any interference with the plaintiff’s sleep.
The loss of even one night’s sleep through excessive noise has been repeatedly held to be substantial and not trivial in this sense (seeAndreae v Selfridge & Co  3 All ER 255 at 261, quoted with approval in Munro v Dairies Ltd  VLR 332 at 335; Kidman v Page  St R Qd 53 at 59; see also Halsey v Esso Petroleum Co Ltd  1 WLR 683 at 701: “a man is entitled to sleep during the night in his own house”).
It is not a defence for the party creating the nuisance to claim that he is merely making a reasonable use of his property. The defendant’s conduct may well be otherwise lawful, but still constitute actionable nuisance. The activity engaged in by the defendant may be of great social utility or benefit, but that has been repeatedly held as being “insufficient to justify what otherwise would be a nuisance” (see For example, Munro v Dairies Ltd  VLR 332 at 335; see also Halsey v Esso Petroleum Co Ltd  1 WLR 683)
Halsey’s case is well worth a read – a real “David and Goliath” battle, as described by the trial Judge: “This is a case, if ever there was one, of the little man asking for the protection of the law against the activities of a large and powerful neighbour.” And just like David’s epic battle with a thuggish giant, the little bloke won!
Here’s a link to the case: Halsey v Esso Petroleum  1 WLR 683
Precisely the same principles were at work in the case pursued by Julian and Jane Davis, who successfully obtained a £2 million out of court settlement from a wind farm operator, for noise nuisance; and the resultant loss of property value (the home became uninhabitable due to low-frequency noise, infrasound and vibration).
The Particulars of Julian and Jane Davis’ Claim are available here: Davis Complaint Particulars of Claim
And Jane Davis’ Statement (detailing their unsettling experiences and entirely unnecessary suffering) is available here: davis-noise-statement
The common law also recognises the ability to prevent a neighbour from building a noise generation source that will inevitably cause nuisance (with what is called a quia timet injunction). The rule is based on the common sense principle that it’s easier and fairer to keep wild horses corralled, than it is to round them up once they’ve bolted.
One pertinent example is Grasso v Love  VR 163 (available here).
The Full Court of the Supreme Court of Victoria upheld the trial judge’s decision to grant a quia timet injunction to prevent the construction of a Drive-in Theatre which a developer was planning to build right next to the plaintiffs’ home. The injunction was granted on the basis that the noise created by the Drive-in at night-time (noise from the speakers, loud voices, banging car doors, engines starting and tooting horns) would be heard within the plaintiffs’ home and, therefore, cause a very substantial degree of interference with the use and enjoyment of their home. On the basis of the noise likely to be created, the threat of nuisance to the plaintiffs was substantial and, accordingly, they were entitled to an injunction stopping the developer from building his Drive-in, as proposed.
What the growing band of individuals – like Julian and Jane Davis – are relying upon to protect their health, wealth and happiness are the rights that citizens of civilised societies have fought over centuries to establish and maintain (think Magna Carta and all that).
STT is heartened that outfits like the Bourne Board of Health are in there fighting to protect those very same rights. As an observer of the manner in which governments and those within its organs who are paid handsomely to do just that have, instead, sided with the wind industry in wantonly destroying those rights and, worse still, derided its victims, STT says about jolly time.
But don’t expect the venal who supp from the same subsidy trough to take up the cudgels on your behalf any time soon. Oh no, the only guaranteed defender of your own rights is you.
Freedom from noise nuisance (and the ability to sleep in your own home) isn’t a “concern”; it’s a hard-won legal “right” – that’s been upheld against the mighty, rich and powerful for close to 200 hundred years.
The wind industry is – with knowing assistance from your very own governments – more than prepared to simply trample on those rights and, in doing so, to literally steal what’s yours from under you. Don’t let them take what’s rightfully yours without a fight; and don’t sit back and leave it to someone else. These are your homes, your families and your rights – fight for them. There’s a judge just waiting to hear from you.