Noise nuisance is an area of law that is receiving a lot of attention in courts around the UK and Ireland, specifically with regard to noise emanating from wind turbines and other energy infrastructure.
What is nuisance in Scots law?
At common law, the principal authority for nuisance in Scotland is Watt v Jamieson. This case is authority for the proposition that nuisance will be established if the invasion complained of can be demonstrated to be more than what the reasonable proprietor ought to be expected to tolerate, taking into account the circumstances of both parties.
In Scotland, the test is whether, objectively, a potential pursuer has been exposed to something that is more than what is tolerable, giving due weight to the surrounding circumstances of the offensive conduct and effects. This has been applied by the Scottish courts by asking whether a reasonable person would be of the same view as a potential pursuer.
Noise, and other issues such as smells or artificial light, can also be statutory nuisances under the Environmental Protection Act 1990. To be a statutory nuisance, the issue must either be a nuisance or be prejudicial to health. Statutory nuisance is dealt with by the local authority, which has the power to serve an abatement notice.
What level of noise is more than reasonably tolerable?
Silence is not an absolute right and the assessment is objective in nature. For example, a noisy toilet in a neighbouring flat has been found to be a level of noise that a reasonable person had to tolerate.
Although not a noise nuisance case, a case about nuisance in respect of fungus growing on a property determined that whether something is reasonably tolerable is dependent on the facts and circumstances and can only be decided after enquiry. Every case of nuisance will therefore turn on its own facts.
What if the nuisance complained of was already present before a claim is raised?
It is now well settled in law that there is no obligation on a person to tolerate a nuisance where the nuisance has been going on since before the person bought their property. There is Supreme Court authority that coming to a nuisance is not a defence. It is also not a defence in a claim of nuisance that the activity in question is of public benefit. However, it may be relevant to any defence that the aggrieved neighbour has changed the use of their land.
What if there is planning permission in place?
The Supreme Court has held that planning permission is not usually a defence to a nuisance action. However, if the activity for which planning permission was granted was of benefit to the public, then public interest can be a relevant factor when considering whether to grant an injunction (interdict).
In a Scottish case, Milne v Stuartfield Windpower Ltd, a couple brought a legal claim against a wind energy company. They said the noise from nearby wind turbines was so disruptive that it amounted to a statutory nuisance. The wind energy company argued that the turbines complied with planning permission, including noise limits. Their position was that, as people have different sensitivities to noise, personal complaints were not enough. The court said meeting planning conditions does not protect a company from nuisance claims and you do not need scientific evidence to prove a nuisance; clear, honest descriptions from affected individuals can be enough.
It is also worth noting that shadow flicker (flickering light effect caused by rotating wind turbine blades casting moving shadows across nearby homes) is also a potential issue. Very recently, a wind farm operator in Scotland had to shut down its wind farm following a complaint of shadow flicker from a neighbour. The council found that it was in breach of a planning condition and, in this case, the operator implemented additional shutdown protocols on a voluntary basis, such that a nuisance claim was not necessary, but it does highlight the potential for nuisance claims arising from shadow flicker.
In a recent Irish decision concerning noise nuisance from wind turbines, the court also ruled that meeting the noise limits in planning permission does not automatically mean that the noise is reasonable. The impact on people living nearby also needed to be considered.
Remedies
Interdict
When a party wants to stop a nuisance in Scotland, the remedy is interdict (a court order preventing the nuisance from continuing). Interim interdict can also be sought before the defender is notified, provided that the test for interim interdict is met.
However, the Scottish courts may delay or refuse perpetual interdict if immediate enforcement would harm the public interest or cause disproportionate injury to the defender. In MacBean v Scottish Water, a claim over unpleasant odours failed because the court accepted Scottish Water’s evidence and efforts to remedy the issue. The balance of convenience therefore tipped against interdict.
In addition, where interdict would disrupt essential services or production, the courts may suspend enforcement while remedial measures are carried out.
Interim interdict also carries risk. If it is recalled, it is deemed wrongful, exposing the complainer to damages. Certainly, in wind turbine cases, a claim for damages is likely to be a significant sum.
Damages
Another remedy available is an award of damages in respect of harm to health or economic harm connected to property disturbance. However, negligence needs to be proven by the complainer. It is not enough that the nuisance happened; there needs to be a breach of duty by the neighbouring proprietor.
In a recent Irish case, significant damages were awarded against the wind farm operator in addition to an order for the three turbines to be shut down.
Practical considerations
It appears from the case law that the courts in Scotland have taken into consideration the operator's actions when confronted with a nuisance complaint. Early intervention by an operator is essential and they should respond to any complaint promptly.
It is also common in Scotland for parties to enter into co-operation agreements (noise disturbance agreements). These are voluntary contractual arrangements, typically between wind farm developers or operators and local residents, providing for compensation or other community benefits. They are not mandatory but are common in Scotland and typically provide financial compensation to offset the impact of wind farm noise (and sometimes shadow flicker) and ensure residential amenity. Such an agreement will not automatically negate a nuisance claim, but it could be a strong factor in any defence. It is unlikely to prevent a nuisance claim if the agreed upon noise levels are still unreasonable or if the agreement was not followed.
Conclusion
To date, the Scottish courts have only considered statutory noise nuisance and have taken a fairly pragmatic approach. Given the number of energy projects in Scotland, it is likely that more claims, including common law claims, will be brought against operators in the future.
This article was included in our Litigation in Scotland Report 2026 - read the full report here.
