Wind Turbines and the Right to Privacy

Fägerskiöld v Sweden [2008] ECHR 37664/04 (25 March 2008) The European Court of Human Rights has considered a case of nuisance caused by a wind turbine, based on the right to respect for private and family life (art 8) and the right to protection of property (art 1 of Protocol No 1) of the European Convention on Human Rights.

Facts

The applicants were Swedish nationals who bought a holiday home in the municipality of Ödeshög in the mid–1980s.

In 1991 and 1992 two wind turbines were erected on a neighbouring property.  In April 1998 a third wind turbine was erected.  The applicants complained to their local municipality about the continuous noise emitted by the turbines and the light-effect on the rotor blades.  According to noise tests carried out, the noise level at the applicants' property was found to be 39.4 decibels.  The Environment Protection Authority recommends 40 decibels as the maximum noise level at any residential property.

The municipality's Environment Committee evaluating the turbines found that they did create some noise, however that noise was not sufficient to justify their removal.  The Committee further noted that if the applicants considered measures to minimise the noise insufficient they were free to request further measures be taken, or appeal to the environment courts.

The applicants complained to the European Court of Human Rights that the wind turbines interfered with their peaceful enjoyment of their property and that the value of their property had decreased as a result of the nuisance.

The Government submitted that the complaint should be declared inadmissible on the following basis:

• non-exhaustion of domestic remedies;
• the property was used for recreational purposes and therefore could not fall within the art 8 definition of ‘home’; and
• no evidence had been provided that the turbines had adversely affected the applicants' physical or mental health.

The Government further contended that the interference with the rights of the applicants was in accordance with the law and was justified by the contribution to sustainable development provided by the wind turbine.

 Decision

To establish a complaint under art 8, the consequences of the nuisance must be sufficiently severe.  The Court stated that:

Specifically, art 8 … applies to severe environmental pollution which may affect individuals' well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely.

The Court accepted that the applicants were affected by the presence of the wind turbines, however, the nuisance did not constitute ‘severe environmental pollution’ and insufficient evidence was brought to establish that the applicants had been physically affected by the nuisance.

The Court further held that:

• The complaint regarding the light reflections caused by the turbines was not substantiated.
• The complaint under art 1 of Protocol No. 1, that the nuisance interfered with the applicant's peaceful enjoyment of their property, was found to be manifestly ill-founded.  The permit to build the turbines was granted in accordance with national law and the operation of the turbines was found to be in the general interest of the community as a source of sustainable power.  Ultimately, it was found that a fair balance had been struck between the community as a whole and those who would be affected by the noise.
• With regard to the argument that the property did not fall within the definition of ‘home’, the Court found that the couple had relied on their right to ‘private and family life’, not their ‘home’.  Art 8 is designed to protect against arbitrary interference from public authority, thus the Court determined that ‘home’ should be interpreted expansively.
• The applicants had failed to provide evidence of housing prices to establish that the wind turbines had decreased the value of their house.
• The Court determined that it did not need to decide the issue of non-exhaustion of domestic remedies, as the complaint was held to be inadmissible for other reasons.

Relevance to the Victorian Charter

This decision may well have implications for s 13 and s 20 of the Victorian Charter, which are similar to art 8 and art 1 of protocol No. 1 of the Convention respectively.  This decision indicates a high threshold may be required to invoke protection from a breach of Charter rights in the environmental context.

This decision is also important as it highlights the balancing exercise of the competing rights of the right to peaceful enjoyment of property with the competing community rights to sustainable development.  This decision suggests that what could potentially amount to a breach of sections 13 and 20 of the Victorian Charter may be justified if deemed to provide a significant community benefit.

The decision is available at: http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=829981&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649.

Carly Robertson is a Lawyer with Blake Dawson