Can a Wind Farm Be a Nuisance If It Hasn’t Been Built?

On April 22, 2013, an Ontario Superior Court of Justice Judge ruled that claims of negligence and nuisance against a proposed, unapproved wind farm are premature and cannot be tried at law. Opponents of wind farms are celebrating this decision and publicizing it as a victory notwithstanding that the court dismissed all claims brought by the neighbours of the proposed wind project (the Plaintiffs). In reality, this case is a victory for those promoting wind power in Ontario and a defeat for those seeking to halt the development of wind farms.

 Even with their evidence unchallenged, the court determined
that the Plaintiffs failed to show that wpd had done
anything that could be tried in a court of law.

The Plaintiffs brought actions against wpd Canada Corporation (wpd) seeking to stop the future construction and operation of the proposed Fairview Wind Project and asking for damages based on negligence, nuisance, trespass and strict liability. They claimed that the publication of the draft site plan for the project (which is required as part of the application for a Renewable Energy Approval) caused a decline in property values, and also that the project would exceed permitted noise levels and cause harm to health and the environment. Wpd brought a motion to dismiss all these claims on the grounds that the Plaintiffs could not show that a trial was needed because they had no cause of action. The court agreed with wpd, finding that the Plaintiffs could not show that there had been any tortious conduct on the part of wpd.

The Plaintiffs have claimed this outcome as a victory on the basis that the court accepted the Plaintiffs’ claims and evidence as proven. However, the court did so at wpd’s invitation for the purpose of determining that there was no genuine issue for trial. Put differently, the court did not even review the Plaintiffs’ evidence with respect to declining property values, noise, etc., as would have been done in an actual trial. Even with their evidence unchallenged, the court ruled that the Plaintiffs failed to show that wpd had done anything that could be tried in a court of law. Suggesting that the court accepted that property values are diminished by wind farms and that wind farms cause ill health effects is not legally correct – but, it makes for good headlines.

This case will likely prevent similar groups from bringing claims against wind farms that are in the early stages of development (projects that have not received a Renewable Energy Approval), as the court has now decided that unapproved, proposed projects cannot be found to cause the wrongs that the Plaintiffs alleged in their claims against wpd.

Fairview Wind Project negligence noise nuisance Ontario Superior Court property values Renewable Energy Approval wpd Canada Corporation

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