This summary is concerned with remedies for private nuisance: in particular the measure of damages and, to a lesser extent, injunctions. The prompt is an Irish High Court case, Byrne v. ABO Energy [2025] IEHCC 330, a case which makes very extensive reference to recent Supreme Court cases in the UK, in particular Fearn v. Tate Gallery Trustees.
The case is about noise from the Gibbet Hill wind farm. The claimant was a former Law Commissioner. The expert he relied on is well-known in litigation in England & Wales. The case is worth reading for those involved in such cases if only for the specification of seven forms of wind turbine noise. It was a bad and protracted case in which the defendant operator buried its head in the sand.
As to damages for amenity interference, the Courts in England & Wales have long been troubled by the appropriate method of assessment. In legal terms, it is not that long ago that the Court of Appeal held that damages should be assessed by analogy with awards in person injury cases (Bone v. Seal [1975] 1 WLR 797). A line of cases from Hunter v. Canary Wharf [1997] AC 655 has held that since these are property cases there is one cause of action, in which damages, even for a transitory nuisance, should be assessed by reference to the value of the property and divided between the occupants.
The Irish Courts do not agree. In particular, as the judge said in Byrne (para.312), “It places too much weight on the capital value … The approach could lead to drastically different awards of general damages in cases where neighbours might have experienced very similar interferences”. More interestingly, perhaps, the trial judge noted that an assessment of damages “must take account of the principles of equality”. In Fearn, Lord Leggatt JSC made frequent reference to the principle of “equal justice” (without further elaboration).
If a reader goes back to the key speech of Lord Hoffmann in Hunter, the conclusion can be drawn that he was not intending to set up quite such a rigid principle as that which is now applied (see p.706). If the Courts are to be interested in “equal justice”, then why should adherence to capital value hold such a primary place in awards of damages?
As to injunctive relief, relevant principles (or damages in lieu, as per Shelfer v. City of London [1895] 1 Ch 287) have been much discussed recently in the Supreme Court. In Byrne, the judge granted an injunction prohibiting the use of three (of six) turbines, setting out detailed reasons why the conduct of defendants generally may be such as to require the award of an injunction (para.326ff.), a section which is also well worth considering as much else.
A fuller not of this case will be found on the author’s site wiglaw.
