Monday, November 23, 2020
The High Court has ordered a wind farm operator to make discovery of raw wind farm data and other records to plaintiffs who have alleged in section 160 planning injunction proceedings that the wind farm is causing a nuisance in terms of noise, vibration and shadow-flicker.
In Byrne & Others v ABO Wind Ireland & Others, Mr Justice Sanfey, in a judgment delivered on 20 November 2020, directed that the defendants, who include the operator of the Gibbit Hill Wind Farm in County Wexford, should make discovery of the records to the plaintiffs, who are individuals residing approximately 1,050 metres from the nearest of the six turbines comprising the wind farm.
The plaintiffs initiated section 160 planning injunction proceedings in 2018, alleging that the wind farm is causing noise, vibration, and shadow-flicker to such an extent that it amounts to nuisance, negligence, breach of duty, breach of statutory duty, and breach of the plaintiff’s constitutional rights.
Wind farm data and records
The data and records the wind farm operator has been ordered to discover may be summarised as follows:
(1) Raw SCADA data for the six turbines since the commencement of operations.
(2) Data gathered by or on behalf of the wind farm relating to noise, vibration, and shadow-flicker, including raw unprocessed data used to produce planning compliance reports.
(3) Records relating to the investigation and assessment of the plaintiff’s complaints to the wind farm operator about noise, vibration, and shadow-flicker, including findings of experts engaged by or on behalf of the wind farm.
(4) Records relating to engagement with the planning authority on planning compliance and in relation to complaints about noise, vibration, and shadow-flicker.
Precise sub-categories of these records are described more fully in the written judgment.
As the Court noted in the judgment, the dominant consideration in discovery is whether the records sought are relevant and necessary for the fair disposal of the case, or to save costs.
Further, where the resolution of the issues between the parties will depend on the expert evidence adduced by the plaintiffs and the defendants, it is best if those experts are proceeding on the basis of the same raw data and evidence, which in this case is the data as to the manner in which the turbines operate, generate noise, vibration, or shadow-flicker.
“Going into the trial, as things stand, that information would be available to the defendants but not to the plaintiffs. In an action in which the respective experts’ evidence will be crucial to the determination of the issues, it seems to me essential for a proper understanding of those issues that the original source data is made available to the plaintiffs. In such circumstances, the experts on both sides would be proceeding from the same information base, which should assist in promoting agreement between the experts, and identifying areas of disagreement between them, which in turn will promote the efficiency of any ultimate trial”.
The Court was mindful in this regard of the Rules of the Superior Courts which encourage cooperation between experts, where possible, and expressed the view that expert witnesses should be encouraged to convene and agree as much as possible, in advance of trial, and that one of the best ways to promote this is to ensure that the experts on both sides have the best information available to them.
Evidence of the wind farm operator’s response to complaints
With respect to the records falling within categories (3) and (4), the Court acknowledged that the plaintiffs would have some knowledge of these matters as they relate to the operator’s response to the plaintiff’s complaints, however the Court held that as the level and quality of engagement with and response to those complaints is a serious issue in the case, records relating to that engagement and response would be both relevant and necessary to the fair disposal of the case at the hearing.
The Court held that discovery of the records would not be unduly costly or burdensome on the wind farm operator, or disproportionate to the benefit to be gained from their discovery.