Wind farm operators have been ordered by the High Court to disclose raw wind farm data and other records to individuals residing near a turbine in Co. Wexford.
This was the recent judgement delivered in the case of Raymond Byrne and Lorna Moorhead vs ABO Wind Ireland Ltd, ABO Wind OMS Ireland Ltd and Wexwind Ltd.
Mr. Justice Mark Sanfey directed that the companies should make the records available to the couple, who are individuals residing approximately 1,050m from the nearest of the six turbines comprising a wind farm in Co. Wexford.
The married couple have two children and reside at Corragh, Bunclody, Co. Wexford.
Two of the companies – ABO Wind Ireland Ltd and ABO Wind OMS Ireland Ltd – are operators of a wind turbine installation known as Gibbet Hill Wind Farm at lands located in various locations in the area of Bunclody, Co. Wexford.
The third named company, Wexwind Ltd, is the owner of this wind turbine installation.
The couple’s residence lies approximately 1,050m from the nearest of the wind turbines operating at the wind farm. The turbine development work was carried out in 2012 and in early 2013, with the turbines commencing operation in May/June 2013.
Section 160 of the Planning and Development Act 2000
The couple sought various reliefs in respect of what they allege are installation noise, vibration and shadow flicker caused or permitted by the companies to be emitted from the wind turbines, which they say interfere with their “reasonable use and enjoyment of their home, lands and premises”.
It is alleged that the noise, vibration and shadow flicker are of such severity that the couple’s reasonable use and enjoyment of their home, lands, and premises have been “wrongfully interrupted, prevented and destroyed”.
They sought an order or orders pursuant to Section 160 of the Planning and Development Act 2000 (as amended), and sought damages for nuisance; negligence; breach of duty; breach of statutory duty; and breach of constitutional rights.
Byrne and Moorhead also sought aggravated damages arising from what they claim is the companies’ failure and refusal to have regard to the warnings of the appropriate lawful authorities and to expert opinions provided to the couple demonstrating that the noise and other emissions constitute a nuisance.
The four categories of data sought are as follows:
- All SCADA (Supervisory Control And Data Acquisition) data at one minute and 10 minute intervals for each of the six turbines individually on the wind farm since they commenced operation;
- All data gathered on behalf of the companies or gathered themselves on the assessment or measurement of noise and vibration from the wind farm;
- All documents and records relating to the investigations of the couple’s complaints regarding noise, vibration, and shadow flicker;
- All documents and electronic records relating to the companies’ engagement with the planning authority.
It was determined that “no argument has been seriously advanced by the [three companies] that the provision of a very considerable amount of data as sought by the [couple] would be unduly burdensome or costly”.
“There is no suggestion by the [couple] that the information is commercially sensitive. Discovery of the documentation in these categories would not be disproportionate to the benefit to be gained from their discovery, nor are there more efficient methods of disclosure which could be pursued.
“In all the circumstances, I am satisfied that I should order discovery [disclosure] of the documents and data set out in categories three and four.”
Categories three and four
The companies argued that the information requested under categories three and four was not necessary as the couple already knew the information relating to both.
However, the judge noted that the “level and quality of the [companies’] engagement with the [couple] is a serious issue in the case, and while many details of that engagement may be known to the [couple], it seems to me that documents and records relating to the matters set out in category three are relevant and necessary to the fair disposal of the case”.
Documents under category four were sought “with a view to assessing the [companies’] response to the various interactions with the planning authority, and in particular the RPS Report which was commissioned by the county council”.
This was considered relevant to the extent to which the companies reacted to the complaints of the neighbouring couple and enforcement actions taken by the county council, and were deemed “relevant to the issues and necessary for their fair disposal at trial”.
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