Silence, on tourne! - A landmark decision dismisses a class action with respect to annoyances associated with construction and operation of a wind farm

On February 25, 2020, the Superior Court of Québec rendered its decision in the class action instituted on behalf of the residents of the area in which the Éoliennes de l’érable wind project had been developed.[1] The class was claiming damages for the annoyances associated with the construction and the operation of the wind farm. In its decision, the Court concludes that both the construction and the operation of a major Quebec wind farm project constitute normal neighborhood annoyances for the class and thus dismisses the class action.

 

The decision is Canada’s first ever class action dismissal against a wind project developer. In this era of “not in my backyard” and heightened vigilance in regard to environmental and social acceptability, it shows that the efforts of the developer to mitigate the inevitable impacts of its project on the community can make a difference.

 

Background

 

On May 7, 2008, as part of a competitive tender process, Hydro-Québec selected a 100 MW wind power project proposed by Enerfin (whose rights and interests in the wind power project are now held by Éoliennes de l’érable) to install 50 wind turbines, for a total capacity of 100 MW in the rural areas of the villages of Saint-Ferdinand, Sainte-Sophie d’Halifax and Saint-Pierre-Baptiste situated in the Centre-du-Quebec region (the “Project”). The Project was approved by a decree of the Government of Quebec, and received a favourable opinion from the BAPE following an extensive consultation with the stakeholders, including the class members.

 

The construction phase lasted for three years and, at its height, involved more than 1,200 employees on site. The construction site included 150 km of roads and the 50 wind turbines of the wind farm were erected over an area of approximately 95 km².

 

The operation phase started in November 2013 upon the completion of the Project. The wind farm benefits from a 20-year power purchase agreement with Hydro-Québec.

 

Superior Court’s decision

 

Section 976 of the Civil Code of Québec provides that “neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe each other, according to the nature or location of their land or local usage”.

 

As pointed out by the Court, the obligation to tolerate normal neighbourhood annoyances is a positive one, so neighbours have a "right to nuisance" as long as this does not exceed the threshold of tolerance required in a given context. The assessment is based on the nuisance and its normality, rather than on the conduct of the perpetrator of the nuisance itself.

 

The Superior Court relied on the Court of Appeal’s decision in Plantons A et P inc. v. Delage[2] which provides a two-stage test for the evaluation of neighbourhood annoyances: first their recurrence and then their gravity. Only annoyances with a certain level of recurrence and gravity will be considered as abnormal within the meaning of article 976 C.c.Q., taking into account the nature and location of the area where they are felt. The Court also relied on the Court of Appeal’s reasonable person test in its analysis of the evidence.

 

It is worth reminding that an annoyance may be considered as abnormal within the meaning of 976 C.c.Q. even though every applicable regulation is duly respected.

 

For the reasons summarized below, the Court ultimately dismissed the class action.

 

Construction Phase

 

The alleged abnormal annoyances during the construction phase consisted in truck traffic, schedules of work, road closures, detours, use of engine brakes, dust and noise caused by the presence of vehicles and the construction of the power station and the power lines.

 

The plaintiffs’ evidence was solely based on video recordings and testimonies, and no expert opinion was submitted. Moreover, the extent and the gravity of the annoyances were highly disputed, as only a minority of the residents testified that they were displeased, whereas many of them testified that they had not suffered any abnormal annoyances during the construction phase.

 

In addition to this contested evidence, the Defendant adduced extensive evidence demonstrating that it has taken all necessary measures to mitigate as much as possible the annoyances related to the traffic, namely: agreements with private landowners to allow transportation in loops which reduced the traffic on public roads, installation of new traffic signs, deployment of patrollers, direct communications with residents to inform them of the work schedule, reduction of speed limits, major awareness campaigns among employees to reduce speed and bad behaviour, etc. Moreover, an effective resident committee had been established to monitor and properly control any inconveniences. The Defendant also maintained an effective collaboration with the municipality.

 

With respect to dust, a single episode led to the issuance of a notice of non-compliance by the authorities during the construction phase. In the Court’s opinion, this very low number was indicative of the quality of the measures taken by the Defendant. The Defendant regularly carried out dust abatement and other measures to control it. More importantly, during the only extreme dust event, it offered the residents the complete interior and exterior cleaning of their residence.

 

With respect to the noise caused by the construction work, the Court adopted the Ministry of Environment’s standard applicable to a construction site of 55 dBa during the day, and 45 dBa at night. The Court concluded that this standard allows for occasional excesses, and since only three excesses were noted during the construction phase, the noise created by the construction did not meet the criteria of recurrence and gravity discussed above.

 

Operational Phase

 

The Plaintiffs were essentially alleging that the wind turbine noise amounted to an abnormal neighborhood annoyance. The Plaintiffs did not offer any expert evidence with respect to noise, and the Court explained it cannot rely on the human ear and testimonies from the residents.

 

Rather, the Court gave serious weight to the expert evidence adduced by the Defendant, which demonstrated that wind turbines complied with the noise limit set by the decree approving the Project, i.e. 45 dBA during the day, and 40 dBa at night. The Court pointed out that it was a very strict limit, as it uses a reference interval of one continuous hour, but nevertheless adopted it as the applicable standard to assess the noise issue. The Court concluded that a reasonable person can hear wind turbines without being disturbed. As a result, according to the Court, a wind turbine that complies with the noise limit established by the decree does not create a neighborhood annoyance that is beyond what has to be tolerated, even in a rural area. Indeed, although the wind farm was built in a rural area, the Court is of the opinion that it is unreasonable to require absolute silence.

 

As for the landscape, the Plaintiffs sought compensation for the loss of the rural character of their environment. They pretended that the presence of the wind turbines has attained the rustic and peaceful character of their environment. As the wind farm was built in accordance with the decree issued by the government, the Court maintains that section 951 of the Civil Code of Québec allows the owner of the land to erect constructions if he complies with the applicable laws. Further, the Court stated that the physical attractiveness of wind turbines is purely subjective and that it has long been recognized in the case law that a person cannot be compensated for the loss of visual appearance. Plaintiffs also complained about the effects of moving shadows of the blades, the red lights above the wind turbines, the day and night lighting on 19 of the 50 wind turbines and the lighting at the substation. However, the evidence showed that the Defendant obtained custom-made shades for the lamps to reduce the brightness, planted trees, installed a timer system for the exterior lights, as well as a motion detector for the emergency cage.

 

The Plaintiffs also pointed out health problems, loss of income, encroachment of permanent structures on properties and property value, but offered little or no evidence on those matters nor any expert reports.

 

Takeaways

 

This decision confirms that the installation of wind turbines in a settled area does not per se give rise to liability for damage resulting from abnormal neighbourhood disturbances.

 

On many occasions in the judgment, the Court recognizes the efforts made by the Defendant to mitigate the inevitable inconveniences associated with the Project. One could see that these efforts were a major contributing factor in the Court’s decision to dismiss the class action. As a result, developers involved in projects located in a settled area should consult affected residents and invest in measures aimed at mitigating the impacts. As we can see from this decision, if a litigation arises, these efforts and investments will be thoroughly assessed as part of the Court’s analysis on the existence of abnormal neighborhood annoyances.

 

We can help

 

McCarthy Tétrault’s Energy and Litigation groups have extensive experience assisting clients with wind farms projects, including in the context of disputes. If you would like more information on these developments and their potential impact on your business, we can help. Please contact Louis-Nicolas Boulanger or Jean Lortie with any questions or for assistance.

 

[1] 2020 QCCS 601.

[2] 2015 QCCA 7.

Wind farm class actions

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