Webster and Anor v Meenacloghspar [Wind] Limited, Shorten and Anor v Meenacloghspar [Wind] Limited [No. 4]

THE HIGH COURT [2026] IEHC 154 Record No: 2018/8457 P BETWEEN MARGARET WEBSTER AND KEITH ROLLO PLAINTIFFS AND MEENACLOGHSPAR (WIND) LIMITED DEFENDANT AND Record No: 2018/8458 P ROSS SHORTEN AND JOAN CARTY PLAINTIFFS AND MEENACLOGHSPAR (WIND) LIMITED DEFENDANT JUDGMENT of Ms. Justice Emily Egan delivered on the 11th day of March, 2026 INDEX Introduction..................................................................................................................... 3 Legal submissions of the parties ...................................................................................... 4 Okunade-paras (b)(i) to (iii).............................................................................................. 4 What weight ought this court place on the strength or weakness of the pending appeal? .......... 5 Krikke ............................................................................................................................ 6 The defendant’s grounds of appeal .................................................................................. 8 Affidavit of Mr. Brazil grounding the stay application............................................................. 8 Defendant’s written legal submissions on the arguability/stateability of the grounds of appeal... 9 Defendant’s oral submissions .......................................................................................... 10 Grounds of appeal arising from module 1.......................................................................... 11 i. The High Court erred in law and fact in holding that the Carty/Shorten Plaintiffs retained locus standi notwithstanding the sale of Nettlefield (“NF”) during the currency of the Proceedings. .............................................................................................................. 11 2 ii. The High Court erred in law and fact in finding that the noise limits in Condition 15 of the Planning Permission are not a wholly reliable indicator of what [WTN] is objectively reasonable for the purposes of determining a claim for nuisance. ..................................................... 11 iii. the High Court erred in law and fact in finding that the Plaintiffs are not required to demonstrate a threshold of impact in decibel levels alone or otherwise. ............................ 13 iv. the High Court erred in law and fact in finding that the characteristics of the [WTN] is not part of the character of the locality. .............................................................................. 14 viii the High Court erred in law and fact in determining the Plaintiffs’ experts did not fail to discharge their duties to the Court. .............................................................................. 15 ix. the High Court erred in law and fact in determining that the Defendant’s expert, Mr. Carr, displayed a partisan approach and that therefore less weight should be given to his evidence. ................................................................................................................................ 16 x. the High Court erred in law and fact in its interpretation of Condition 15 of the Ballyduff Windfarm Planning Permission, including its finding that the correct interpretation of same is that that noise levels from the turbine may not exceed 40 dBA leq at windspeeds between 5 m/s and 10 m/s. ........................................................................................................ 16 xi. the High Court erred in law and fact in finding that the Defendants bears the onus of proving that the [WTN] is compliant with [condition 15] .................................................. 16 xii. the High Court erred in law and fact in finding that compliance with Condition 15 of the Planning Permission cannot be established by reference to the measurement of noise levels at HH. .......................................................................................................................... 17 xiii. the High Court erred in law and fact in finding that the Defendant failed to demonstrate compliance with Condition 15 of the Planning Permission by reference to the measurement of noise levels at NF. ...................................................................................................... 17 xiv. the High Court erred in law and fact in finding that the IOA Reference Method is not an appropriate metric for Amplitude Modulation measurements. ........................................... 17 Grounds of appeal arising from modules 2 and 3 ............................................................... 18 Conclusions in relation to stateability and arguability.................................................... 19 The adequacy of damages .............................................................................................. 19 Are damages an adequate remedy for the defendant if a stay is refused and the defendant succeeds in the intended appeal? .................................................................................... 19 Irrecoverable financial loss to the defendant .................................................................. 20 Breach of the defendant’s financial covenants. ............................................................... 20 Are damages an adequate remedy for the plaintiffs if a stay is granted and the appeal is unsuccessful? ................................................................................................................ 23 Where does the greatest risk of injustice lie? ................................................................ 24 (a) The defendant’s conduct: unneighbourliness ............................................................. 24 (b) The defendant’s approach to the trial-and-error mitigation .......................................... 25 (c) The defendant’s delay ............................................................................................... 25 (d) The length of time for which the nuisance has been occurring and how that impacts on Ms. Webster ....................................................................................................................... 26 (e) The relative strength and merits of each parties’ case ................................................... 27 (f) Ms. Webster’s entitlement to assess the modified WTN .................................................. 28 (g) Loss of power generated ........................................................................................... 28 (h) The Status Quo ....................................................................................................... 29 Conclusion and form of order ......................................................................................... 29 3 Introduction 1. This is my fourth judgment in these linked set of proceedings. 2. At the conclusion of module 1, I held that the Wind Turbine Noise (WTN) from one of the two turbines operated by the defendant (T2) caused a nuisance to the plaintiffs during night hours and quiet waking hours. At the conclusion of module 2, I determined that the plaintiffs were entitled to an injunction to abate the nuisance and I outlined the restrictions to be imposed upon the operation of T2 during those specified times. In module 3, damages fell to be awarded: Ms. Webster was awarded general damages in the amount of €10,000 per annum, and Mr. Rollo was awarded general damages in the amount of €18,500 per annum. The Carty Shortens were awarded €7,500 each per annum for the period during which they lived at Nettlefield (NF). The Webster Rollos were awarded €30,000 for the reduction in the capital value of Hill House (HH) in the form of ‘stigma damages’. The Carty Shortens were awarded €55,000 for the capital reduction in the value of NF, which they had sold in 2021. 3. The defendant now applies for a stay on all such orders pending its intended appeal of my judgments in all three modules. 4. I have decided on the defendant’s undertaking to pay interest on the damages awarded to all four plaintiffs in the event that its appeal does not succeed, to stay the payment of damages to all four plaintiffs. I will also stay the court’s order for costs. I am not, however, prepared to stay the injunction placed upon the operation of T2. The legal principles governing the grant or refusal of a stay 5. The parties are agreed that the applicable legal principles are those set out in Okunade v. Minister for Justice, Equality and Law Reform [2012] 3 IR 152 (“Okunade”). Clarke J. (as he then was) summarised the relevant test for the grant or refusal of a stay or an interlocutory injunction in the context of judicial review proceedings as follows: a. The court should first determine whether the applicant has established an arguable case; if not the application must be refused, but if so then; b. The court should consider where the greatest risk of injustice would lie. But in doing so the court should:- (i) Give all appropriate weight to the orderly implementation of measures which are prima facie valid; (ii) Give such weight as may be appropriate (if any) to any public interest in the orderly operation of the particular scheme in which the measure under challenge was made; and, (iii) Give appropriate weight (if any) to any additional factors arising on the facts of the individual case which would heighten the risk to the public interest of the specific measure under challenge not being implemented pending resolution of the proceedings; but also (iv) Give all due weight to the consequences for the applicant of being required to comply with the measure under challenge in circumstances where that measure may be found to be unlawful. 4 c. In addition the court should, in those limited cases where it may be relevant, have regard to whether damages are available and would be an adequate remedy and also whether damages could be an adequate remedy arising from an undertaking as to damages., d. In addition, and subject to the issues arising on the judicial review not involving detailed investigation of fact or complex questions of law, the court can place all due weight on the strength or weakness of the applicant’s case. 6. In Krikke v. Barranafaddock Sustainability Electricity Ltd [2020] IESC 42 (“Krikke”) O’Malley J. noted that although Okunade was concerned with an application for a pre-trial injunction in a judicial review context, these general principles apply to all forms of litigation, private as well as public. It was confirmed in CC v. Minister for Justice and Equality [2016] 2 IR 680 (“CC”) that the same principles apply to all forms of orders which may be sought on a temporary basis pending a full hearing. Therefore the Okunade principles apply to the question of a stay pending appeal. Legal submissions of the parties 7. Although they are in substantial agreement that the Okunade principles apply to the present case, there are differences in emphasis as between the parties regarding (a) the interpretations of paras (b)(i) to (iii) of Okunade; (b) the weight which this court ought to place on the strength or weakness of a pending appeal and (c) the application of the court’s reasoning in Krikke to the facts in this case. Okunade-paras (b)(i) to (iii) 8. In resisting a stay, the plaintiffs invoke the factors outlined by Clarke J. at paras. (b)(i) to (iii) of Okunade namely that the court should give appropriate weight to the orderly implementation of measures which are prima facie valid, to the public interest in the orderly operation of the particular scheme under challenge, and to the risk to the public interest of the specific measure under challenge not being implemented. 9. In advancing this argument, the plaintiffs equate this court’s prior judgments in these proceedings with the “measures” under discussion in Okunade. Thus, the plaintiffs argue that the tailored injunction crafted by the court at module 2 is a prima facie valid “measure” which must be afforded due weight. Likewise, the plaintiffs argue that there is a public interest in implementing the court’s injunction, which is prima facie valid, so as to encourage constructive engagement on the part of wind farm operators with genuine complaints and the timely development of appropriate mitigation measures. 10. This seems to me to be a false equation. Although the Okunade principles apply to all private as well as public litigation, the principles may not be implemented in precisely the same way in both categories of litigation. Several aspects of the test outlined in Okunade identify certain features unique to public law litigation. This means that the overarching principle -the need to minimise the risk of injustice - may need to be applied in different ways in private litigation. 5 11. For example, in Krikke, O’Malley J. observed that Clarke J. had considered that there was one feature of Judicial Review proceedings rarely present in ordinary injunctive proceedings. That feature identified was the importance, to a legal order based on the rule of law, of recognising the entitlement of those who are given statutory or other power and authority to take specified actions or make legally binding decisions without undue interference. 12. The judgment of O’Donnell J. (as he then was) in Krikke is to a similar effect. He states that, in the field of public law, the Campus Oil principles can place too much weight on the asserted impact on an individual or business unless it is recognised that the enforcement of the law itself is an important factor. Even a temporary disapplication of the law can give rise to damage that cannot be remedied in the event that the plaintiff does not succeed on the appeal. O’Donnell J. stated that the real insight of Okunade is to require that weight is given to this factor. 13. This all suggests that the “measures” under discussion in the Okunade test do not extend to the judgment of the court under appeal. In a private law nuisance action such as this, the Okunade principles do not require the court, in considering a stay application, to place any particular weight on “the orderly implementation” of its injunction. 14. On the other hand, in both public and private litigation, the judgment of the court under appeal is nonetheless deserving of respect. In Krikke, O’Malley J. noted that whilst there is a right to appeal against an adverse decision, a party seeking a stay pending appeal is not entitled to proceed on the basis that the adverse judgment carries no weight in the stay application. This case has been at hearing before me for over 60 days since the commencement of the trial over three years ago. I have heard and considered the claim and its defence in depth; I have carried out a site visit and listened to audio recordings of the WTN; I have heard in excess of 250 hours of evidence and approximately 10 days of legal submissions. The fact that this court has, in a series of reasoned decisions, reached particular conclusions must count for something in this stay application. 15. Therefore, although paras. (b)(i) to (iii) of Okunade do not apply here, in assessing both the arguability of the appeal and the balance of convenience, this court should nonetheless afford appropriate weight to its own process of testing and considering the extensive evidence which fed into its own decisions. Likewise, whilst fully acknowledging the defendant’s right to appeal, the court should also afford appropriate weight to its own analysis of the law in the three judgments it has already delivered. Indeed, this principle does not appear to be seriously in dispute. What weight ought this court place on the strength or weakness of the pending appeal? 16. The defendant accepts that a trial can lead to a significant narrowing and refinement of the kinds of issues which will remain open on appeal, such that it may be possible for a court to place greater weight on the strength and weakness of the potential appeal. Alternatively, there may well not be any great narrowing or refinement and the issues which remain, even if purely legal, may require "detailed argument and mature consideration”. The defendant submits that, because the issues remaining open on appeal are extensive and 6 complex, this case is in the latter category. As such, it argues that the strength or otherwise of the appeal is a factor of limited assistance to the court in ruling on the stay application. 17. By contrast, the plaintiffs argue that the defendant has not made out arguable grounds of appeal, or that, if same are barely arguable, they are nonetheless very weak. In CC, Clarke J. observed that the basis on which facts found at trial may be revisited on appeal in accordance with Hay v. O'Grady [1992] 1 IR 210 is very limited. Clarke J. noted that many of the legal issues can also fall away precisely because of the way in which the facts are found. In Redmond v. Ireland and the Attorney General [1992] 2 IR 362 (“Redmond”), McCarthy J. also observed that, in an application such as this, the court may have regard to whether the intended appellant has raised an argument that the trial court’s findings of fact are unsupported by any credible evidence. 18. The plaintiffs argue that the issues which remain legitimately for decision in this appeal are narrower and significantly refined compared with those issues which were before the trial court. This, it is said, enables the court to place weight upon the weakness of the pending appeal and to decide to refuse the stay application. 19. I will return to this issue after analysing the defendant’s intended grounds of appeal. Krikke 20. Krikke was a public law case involving a wind farm. The submissions of the plaintiffs and the defendant placed considerable reliance on different aspects of Krikke, which I consider below. 21. It is first necessary to provide some factual context. In the High Court, Simons J. found that some of the turbines on the wind farm operated by the respondent (the developer) had not been constructed in accordance with the relevant planning permission and were unauthorised. He further found that this was not an appropriate case in which to exercise his discretion to refuse relief under section 160 of the Planning and Development Act 2000 (“s. 160”). The respondent was ordered to cease operating those turbines pro tem. The developer, however, was given liberty to apply to have this order vacated in the event that An Bord Pleanála should decide to grant leave to apply for substitute consent for the turbines. The developer sought a stay on the order, which was refused by the High Court. The Court of Appeal reversed the High Court’s decision and granted a stay. In so doing, the Court of Appeal relied on the following factors. 22. First, it was not disputed that the developer would lose a figure of €5 - €7 million depending upon when the appeal was finally determined. It was common case that the developer would not be compensated for this loss. Costello J. stated that a right of appeal should not come “at immense cost”, as it would if the stay sought were refused. Second, the High Court had found that the developer had acted in good faith. Third, the developer had applied for leave to seek substitute consent before the s. 160 proceedings were instituted and was thus actively seeking to regularise its position. Fourth, it was not the developer’s fault that An Bord Pleanála had mishandled its application for substitute consent and had ultimately conceded to an order for certiorari together with an order of remittal on terms that the An Bord Pleanála should not process the application further until the determination of two 7 Supreme Court appeals in other proceedings (in which judgment had been delivered by the time of the Supreme Court’s decision in Krikke). Fifth, there were impacts on third parties arising from the High Court’s order in that land owners obtained rent from the wind farm operator. Sixth, the wind farm was operating within the noise parameters fixed by the planning permission. Although the applicants (“the residents”) had very genuine complaints about the noise disturbance which was impacting on their lives in a distressing fashion, the Court of Appeal accepted that the same noise disturbance would occur even if the rotor blades were reduced in height in accordance with the original planning permission. In that sense the decision of the High Court was a “windfall” for the residents and their remedy, if any, would be in nuisance proceedings. 23. The residents appealed the grant of this stay to the Supreme Court. In light of subsequent developments, the Supreme Court ultimately declined to vacate the stay imposed by the Court of Appeal. These developments were that it transpired that the Bord could not progress the application for leave to apply for substitute consent as envisaged by the High Court (because of the intervening Supreme Court judgments). The High Court order restraining the operation of the turbines pending the granting of an application for leave to apply for substitute consent therefore amounted to an indefinite, if not a permanent, restraint on the operation of the development. In addition, as the Court of Appeal was able to facilitate an early hearing and would determine the substantive appeal in the relatively near future, the Supreme Court held that it was in the interests of justice that the status quo should prevail and that the stay should remain in place. 24. The defendant places significant reliance on this aspect of Krikke. It argues that the main reason that the Supreme Court would not have granted a stay at the time of the High Court order was because the High Court order was anticipated to be of limited duration. The defendant correctly observes that this consideration is inapplicable here. At the present time, one cannot know when the appellate court will be able to facilitate a hearing date. Indeed, the defendant has not even decided whether to appeal to the Court of Appeal or to seek a leapfrog appeal directly to the Supreme Court. One could not designate the refusal of a stay in this case as a measure that will be of limited duration only. 25. In considering whether damages would be an adequate remedy for the residents in Krikke, O’Malley J. noted that s. 160 makes no provision for an award of damages. The defendant contrasts this with the present action in which this court’s award of damages for nuisance runs up to the date on which the injunction takes effect. It argues that the plaintiffs can be compensated for any future nuisance. 26. On the other hand, I have concluded that damages are not an adequate remedy for the plaintiffs and that an injunction is warranted. This dilutes this point of distinction. It is also relevant that O’Malley J. was influenced by the impossibility of any order clawing back profits from the development that should not have been carried out. She stated that there was a public interest in preventing the accrual of such profits pending an appeal. Although this factor applies with somewhat less weight in the present case, which involves an authorised development causing nuisance rather than an unauthorised development, there is nonetheless 8 a public interest in developers not making substantial profits from activities that cause a nuisance. 27. Moreover, as alluded to at para. 22 above, both appellate courts referenced the “windfall” argument. There was no evidence that the nuisance complained of by the Krikke residents was attributable to the dimensions of the turbine rotors, which had been the basis of the finding that the development was unauthorised. Accordingly, there was no link between the grounds on which the s. 160 application was granted and the WTN nuisance complaints. That is not the position here. There is a direct link between the manner in which the defendant is operating this wind farm, its failure to engage with the plaintiffs’ complaints, and the distressing WTN inflicted upon them. 28. The plaintiffs emphasise that both O’Malley J. and O’Donnell J. took the view that the Court of Appeal had placed excessive weight on the developer’s potential financial loss and on the fact that it could not be compensated for any loss caused by the High Court order should it be successful on appeal. O’Malley J. observed that the court below had afforded insufficient weight to the principle that developers should not benefit from developments that do not have permission. Although there is no challenge to the validity of the defendant’s planning permission in the present case, might the same logic apply with equal force to a development which has been found to cause a serious nuisance to neighbouring land owners? I think not. It seems to me that the real concern underpinning this aspect of Krikke was the need to uphold the integrity of the planning code, which O’Malley J. noted, was of high public importance. This particular consideration is absent in the present case. 29. The plaintiffs’ submissions focus on a further factor considered as relevant in Krikke which does resonate with the present case. It is clear that the conduct of the defendant is a relevant consideration for a court considering the grant or refusal of a stay on an injunction pending appeal. In the context of a nuisance action, the conduct of the defendant falls to be assessed as against the standards of neighbourliness.1 In this respect, I have found the attitude and conduct of the defendant to be sadly lacking. I will return to this below. The defendant’s grounds of appeal 30. The first issue to consider is whether the defendant has established arguable or stateable grounds of appeal. I will attempt, by reference to my previous judgment, to place each of the primary grounds of appeal in their appropriate context. Affidavit of Mr. Brazil grounding the stay application 31. The affidavit grounding the application for a stay is that of Mr. Brazil, director of the defendant company. He avers that the intended appeal will raise both factual and legal 1 The conduct of the defendant and the neighbourliness, or otherwise of that conduct, is of course of relevance beyond the parameters of the stay application. It was also of relevance to the substantive decision in a nuisance action as to whether to confine the plaintiff to damages or to grant interlocutory relief. 9 grounds which he proposes to outline in general terms “with a view to assisting the Court in forming a view as to whether the intended appeal is arguable and/or stateable”. 32. Mr. Brazil avers that the court heard a considerable amount of detailed factual and expert evidence and that a large number of issues were fully contested by the parties. In particular, there was a significant dispute between the acoustic experts in module 1, which involved weeks of complex technical evidence. Mr. Brazil avers that, whilst the court found that the plaintiffs had established nuisance on the basis of, inter alia, the expert evidence, the defendant intends to challenge this outcome and will argue that the defendant's expert witnesses should have been preferred by the court. 33. Mr. Brazil then sets out the individual grounds of appeal “likely to be pursued” in the notice of appeal. He states, however, that this is not an exhaustive list and that the defendant's legal team “remain engaged in preparing for the intended appeal and… the notice of appeal has not yet been finalised”. 34. Mr. Brazil goes on to aver that the individual grounds of appeal likely to be pursued in the notice of appeal filed in connection with module 1 are that the High Court judge erred in fact and in law in making seventeen different findings, which he then purports to list. 35. Although Mr. Brazil avers that the defendant has a genuine appeal, his affidavit is of little assistance in understanding the basis of the appeal. I fully accept that one would not expect an affidavit to offer a detailed exposition of the intended grounds of appeal. Issues of law are not for affidavit evidence. The difficulty is that the defendant’s written and oral legal submissions do not take us much further in assessing whether the intended appeal is arguable or stateable. 36. Mr. Brazil’s affidavit adopts precisely the same approach in relation to the intended appeal of modules 2 and 3. Mr. Brazil avers that the defendant will allege that the High Court erred in law and in fact in making eleven impugned findings at module 2 and five impugned findings at module 3. No indication is given as to the basis upon which the court might understand the intended appeal to be arguable in respect of each such finding. Defendant’s written legal submissions on the arguability/stateability of the grounds of appeal 37. In its written legal submissions, the defendant states that its intention in bringing the intended appeal is to persuade an appellate court to arrive at a different view from the High Court in relation to liability and to set aside the High Court's order. It states that the issues involved in these proceedings are complex and novel. This case is the first private nuisance claim in relation to WTN that has run to judgment in this jurisdiction or, it appears, in the courts of England and Wales. The only comparable authority cited in module 1 was a judgment of the Supreme Court of Victoria. The submissions observe that the trial of module 1 was heard over the course of 53 days, during which a large number of issues were fully contested. There was a considerable amount of detailed factual and expert evidence. In particular, there was significant dispute between the acoustic experts, involving weeks of complex technical evidence. 10 38. The defendant’s submissions state that, whilst the High Court found that the plaintiffs had established nuisance on the basis of the expert evidence, it intends to challenge this outcome and will argue that its expert evidence should have been preferred. Rather than further illuminating the court on why this should be so, the written legal submissions concentrate on the general principles governing the test for arguability on stay applications. The defendant correctly observes that a party seeking a stay is not required to prove, as a probability, that it will succeed, that the court ought not generally conduct a prima facie hearing of the intended appeal and that the threshold of arguability is low. 39. It nonetheless remains incumbent on the defendant to assist the court in understanding and assessing the arguability or stateability of the intended grounds of appeal. In Redmond, McCarthy J. acknowledged the heavy responsibility upon the legal advisers of a party seeking a stay to assist the court on the reality of the appeal on liability. These proceedings were modularised on the defendant’s application. This modularisation has meant that the defendant has benefited from a vastly longer period of time than would usually apply to consider, formulate, and present its intended grounds of appeal. This court’s module 1 judgment on liability was delivered in March 2024, over eighteen months before the stay application. Its module 2 and 3 judgments were delivered in May 2025 and late October 2025, over six months and one-and-half-months, respectively, prior to the hearing of the stay application. I am therefore concerned by the formulaic nature of the grounds of appeal as presently enunciated and by the lack of any real engagement with the requirement to demonstrate arguable grounds. Defendant’s oral submissions 40. In light of the boilerplate approach adopted in the defendant’s pleadings and written legal submissions, I requested it to address the court further on the arguability of the intended appeal during the oral hearing of the stay application. 41. In addition to advancing oral argument on the arguability of certain of the grounds of appeal (which I will consider below), the defendant offered to submit to the court a short closing submission after the conclusion of the stay hearing (if the court would consider this to be of assistance). It was intimated that such a closing submission might obviate the difficulties arising should counsel proceed too quickly or should the court require key passages from the relevant authorities or citations from the transcripts of the court's three modules. I did not consider this to be a necessary or desirable course of action. The replying affidavit of Ms. Webster did not focus on the arguability issue, and counsel for the plaintiffs had intimated at a case management hearing that the main dispute would in all likelihood centre on the balance of convenience. However, the plaintiff's legal submissions made it clear that they would argue that the defendant had not established arguable grounds of appeal. If considered necessary, the defendant could have sought leave to deliver further closing submissions. At a minimum, it ought to have been prepared to fully articulate the arguability of its intended grounds of appeal in its oral submissions. Particularly bearing in mind the passage of time since this court’s liability judgment, there was no legitimate basis on which to either request or permit further closing submissions in relation to this issue. 11 42. In its oral submissions, counsel for the defendant stated that it did not wish to impose too much on the court’s time or risk arguing the appeal. Instead, it chose to address the court on the contended for arguability of certain of its grounds of appeal. I will now identify the grounds of appeal specifically addressed by counsel, consider their context by reference to my previous judgments, and offer some observations on whether some, or all, appear to raise an arguable ground of appeal. Grounds of appeal arising from module 1 i. The High Court erred in law and fact in holding that the Carty/Shorten Plaintiffs retained locus standi notwithstanding the sale of Nettlefield (“NF”) during the currency of the Proceedings. 43. The defendant intends to argue that the court's finding was erroneous as a matter of law. The defendant notes that, in its closing submissions at module 1, it cited Hunter v. Canary Wharf [1997] AC 655 and Fearn v. Board of Trustees of the Tate Gallery [2023] UKSC 4 to the court. The defendant intends to cite the same legal authorities to the appellate court and submit that it ought to take a different view thereof. 44. However, no challenge has been advanced to the locus standi of Ms. Webster and Mr. Rollo. Even if I were to assume that the defendant will successfully challenge the locus standi of the Carty Shortens, this would not necessitate a stay on the injunction or on the damages to be paid in the separate case brought by Ms. Webster and Mr. Rollo. 45. I have ultimately decided to grant a stay in respect of the payment of damages and on the court’s order for costs and to refuse a stay only in respect of the injunction. This intended ground of appeal is not, therefore, of immediate relevance to this court's intended order. ii. The High Court erred in law and fact in finding that the noise limits in Condition 15 of the Planning Permission are not a wholly reliable indicator of what [WTN] is objectively reasonable for the purposes of determining a claim for nuisance. 46. In submitting that this is an arguable ground of appeal, the defendant stated that it intends to rely primarily on the authority of Smyth v. Railway Procurement Agency and anor [2010] IEHC 291. It intends to argue that this court's findings as summarised at page 7 of the module 1 judgment were incorrect. The defendant will argue that this court erred in declining to equate the legal impact of the Ballyduff planning permission with that of a Line B order in Smyth and in holding that this aspect of Laffoy J.'s reasoning was concerned with the defence of statutory authority in respect of a development authorised by legislation. The defendant’s legal submissions did not expand upon this argument. 47. Separately, the defendant will argue that I erred in holding that the noise condition in the planning permission (“condition 15”) was not a “wholly reliable indicator” of what WTN is reasonable. 48. In holding that the present case was not on all fours with Smyth, I pointed to the relevant features of the permission process in Smyth; namely, the searching and comprehensive investigation, analysis, and assessment of all of the noise aspects of the Luas project, and the evident depth of consideration of the aspects of the development said to give 12 rise to nuisance. I held that all of this stood in sharp contrast with the Ballyduff planning process, in which there was no evidence that the planning authority had taken account of AM values or thump AM in formulating condition 15. The planning permission did not seek to regulate two of the principal aspects of the WTN which were the source of the plaintiffs' complaint. In the course of the stay application, the defendant submitted that two aspects of the expert evidence in particular suggested that the court’s approach was erroneous. 49. First, Mr. Carr, the defendant's acoustic expert had given evidence that special characteristics like AM could be dealt with in the planning permission by measuring them in accordance with the IOA RM methodology and then applying a decibel-based penalty. Therefore, characteristics such as these could still be resolved in a decibel-based manner. The difficulty with this argument is that condition 15 did not adopt this methodology. I therefore struggle to see why I ought to have held that condition 15 did in fact regulate AM. In any event, the IOA RM deals only with AM values and not thump AM, which was also a very significant aspect of the plaintiffs’ WTN complaint and of the court’s findings of fact. 50. Second, the defendant will rely upon the evidence of its planning expert, Mr. Lawlor, that the whole purpose of the fixed noise limit was to protect residential amenity. Noise conditions are inserted to eliminate nuisance. However, I struggle to understand how this suggests that the court was wrong to conclude that condition 15 did not seek to regulate either high AM values or thump AM. The planning authority formulated condition 15 in April 2004. Condition 15 could not realistically be responsive to aspects of WTN such as, for example, thump AM, which was not at that time fully understood or recognised as potentially causing serious intrusion. 51. At a more general level, Clarke J. noted in Donegal Investment Group Plc v Danbywiske [2017] IESC 14; [2017] 2 ILRM 1 (“Donegal Investment”), that the assessment of expert testimony requires a trial judge to assess the way in which that testimony is given. Experience shows that it is much easier to engage with the level of detail which is explored and explained by an expert at an oral hearing by being present at that hearing, rather than reading a transcript of what transpired. In the present case, I had an ample opportunity to assess the demeanour of the experts who opened and analysed vast tracts of technical evidence for the assistance of the court 52. Having said that, Donegal Investment also established that the assessment of expert evidence requires an assessment of the logic proffered by the expert witness for explaining differences between his evidence and that of the contrary experts. This assessment of the logic and common sense of the testimony heard offers a somewhat greater scope for appellate review of the findings of the trial judge than in the case of purely factual evidence. 53. Fundamentally, however, I do not view these two items of expert evidence identified by the defendant in oral argument as responsive to the reasoning in the court's judgment on the issue under discussion at this ground of appeal. Therefore, I have some difficulty in understanding the defendant’s submission that this ground of appeal is arguable. 54. The defendant has always sought to present the “wholly reliable indicator” defence as being more subtle than a bald argument that planning permission per se provides a defence to nuisance. Ultimately, however, the defendant did not really explain the distinction in 13 principle between (a) an argument that planning permission per se provides a defence to nuisance and (b) the “wholly reliable indicator" defence which seems to be that, as a matter of law, a permission which specifically regulates the matter complained of (in this instance WTN) prevents the court from concluding that operation in accordance therewith constitutes a nuisance. 55. This aspect of the case now appears to raise a reasonably net point. Either the defendant is correct in proposing that a grant of planning permission can provide a full and complete defence to a claim in private nuisance; or it is not. Suffice it to say that I have some doubt as to whether this proposition is correct either as a matter of common law or statute. Moreover, even if one assumes that the defendant is correct as a matter of law, it will still have to surpass the hurdle arising from the fact that condition 15 does not specifically regulate the primary aspects of the WTN of which the plaintiffs complain. Further, if it clears this hurdle, the defendant will have to show that this court erred in concluding that it had not been established as a matter of fact, on the balance of probabilities, that the WTN was in fact planning compliant. iii. the High Court erred in law and fact in finding that the Plaintiffs are not required to demonstrate a threshold of impact in decibel levels alone or otherwise. 56. The defendant maintains that Mr. Carr’s evidence establishes that the assessment of WTN will always come back to a specific number threshold set in decibels. It appears from counsel’s submissions that the argument will be that condition 15 is a “wholly reliable indicator” of the relevant decibel threshold which must be reached or exceeded before one considers the DEFRA criteria. If so, this is, in essence, similar to the “wholly reliable indicator” thesis advanced at appeal ground (ii). 57. In a related argument, it appears that the defendant will also argue that the plaintiffs cannot establish nuisance without identifying the particular decibel “threshold” (either by way of decibel level or by way of a combined decibel level/AM penalty) at which nuisance commences. Moreover, this decibel “threshold” is to delineate the parameters of nuisance regardless of the other characteristics of the WTN (such as, for example, frequency, changeability, erraticism, and unpredictability). 58. By way of context, my module 1 judgment concluded that the evidence firmly established that T2 gave rise to WTN nuisance at the plaintiffs’ homes. In my module 2 judgment, I concluded that I had sufficient evidence to craft a remedy which would abate the nuisance as found. However, this was a site-specific exercise. It was not necessary, or indeed appropriate, to attempt to devise a generally applicable threshold for WTN nuisance in decibel levels alone or otherwise. Indeed, I do not believe that this was the court’s function.2 59. I believe that I faithfully applied the DEFRA analysis, under which noise measurements are helpful but not determinative. The DEFRA analysis endorses a holistic, site- specific assessment of the decibel level of the WTN and the type of noise. This requires an assessment of the presence or absence of aggravating characteristics, together with a range 2 See paras. 376 and 377 of the module 1 judgment. 14 of other considerations identified at para. 385 of the module 1 judgment. DEFRA does not envisage the elevation of the decibel level to the status of a single, over-arching “threshold characteristic”.3 Even if it did, why should one, as the defendant contends, necessarily select the particular decibel level set in condition 15?4 As noted at para. 387 of the module 1 judgment, the DEFRA methodology reflects that set out by the Irish Environmental Protection Agency in its guidance on statutory nuisance and investigation methodologies. This also does not set an absolute threshold for nuisance.5 60. In any event, I would have thought that to succeed on this ground (and on other related grounds), the defendant must demonstrate that this court erred in concluding, as a matter of fact, that the WTN bore the characteristics complained of by the plaintiffs and identified by their experts, and that same were, objectively speaking, unreasonably intrusive. This will be a considerable task as the defendant has not submitted that there was no credible evidence to support the court's findings of fact as to the existence or impact of the characteristics of the WTN complained of by the plaintiffs. Moreover, there is a lacuna in the defendant’s evidence on this issue because its witnesses effectively declined to conduct their own assessment of the nature and impact of these characteristics in module 1. Insofar as it addressed one of these characteristics in module 2 (high AM values), its analysis was incomplete and, moreover, demonstrated high AM values. At module 2, the defendant continued to decline to address low-frequency sound/thump AM, or frequency, changeability, erraticism, and unpredictability, etc. iv. the High Court erred in law and fact in finding that the characteristics of the [WTN] is not part of the character of the locality. 61. By way of context, it is worth recalling that my module 1 judgment expressly concluded that the character of the locality ought to be assessed on a "wind farm", rather than a "no wind farm" basis. In other words, in assessing the character of the locality, I accepted the locality included a wind farm which inevitably brought with it some degree of visual and aural intrusion in the form of aerodynamic noise and some AM. I held that these were all features which the plaintiffs would be expected to tolerate. 62. On the other hand, I also concluded that the character of the locality could not fairly encompass the remarkably intrusive characteristics of this particular WTN (for example, high AM values, thump AM, changeability, erraticism, and unpredictability). WTN bearing these characteristics could not reasonably have been anticipated to occur and was not, therefore, “priced in” to condition 15 of the Ballyduff permission. 63. This ground arises from the court’s finding that, while the decision of the planning authority both grants permission at a general level for the wind farm and sets the decibel levels which cannot be exceeded, it does not purport to regulate many of the key aspects of the WTN complained of by the plaintiffs. Therefore, even if noise of a particular decibel level could arguably be held to form part of the character of the locality by reason of the grant of 3 See discussion commencing at para. 379 of module 1 judgment. 4 Again, either by way of decibel level or by way of a combined decibel level/AM penalty. 5 Again, either by way of decibel level or by way of a combined decibel level/AM penalty. 15 permission, this argument cannot apply to characteristics of the WTN such as high AM values, thump AM, changeability, erraticism, and unpredictability 64. The defendant submits that it intends to argue that this court’s decision was erroneous by reference to Lanigan & ors v. Barry & ors [2008] IEHC 29. This judgment is considered in the module 1 judgment and it was not explained how the defendant contends that this court incorrectly applied the precedent. The defendant’s submission is of little assistance in understanding this ground of appeal or in assessing its arguability. viii the High Court erred in law and fact in determining the Plaintiffs’ experts did not fail to discharge their duties to the Court. 65. The assessment of expert evidence requires the trial judge to assess the credibility of the witness appearing before them, which involves an assessment of the expert’s demeanour. The way in which an expert responds to questioning or to the view of an opposing expert witness can play an important role in the assessment by the trial judge of the extent to which the expert’s views may be truly said to be uninfluenced by the case which his or her side is seeking to put forward. In James Elliot Construction Ltd v. Irish Asphalt Ltd [2011] IEHC 269, Charleton J. noted that, in the assessment of expert evidence, it is of particular importance to observe the extent to which an expert has been able to step back, consider, and think through an opposing point of view. As with demeanour, this is not readily demonstrated on a transcript of evidence. Rather, to a trial judge, it can be possible to see the degree to which the witness is thinking through the potential for an opposing theory before giving a reasoned answer. 66. In Duffy v. McGee [2022] IECA 254, the Court of Appeal afforded considerable deference to the trial judge’s conclusion that the expert in question had acted as a partisan advocate. The Court of Appeal therefore fully upheld the trial judge’s conclusion that the expert evidence should be excluded in its entirety as a result of an abject failure to comply with the most basic obligation of an expert which is to be objective and impartial. 67. The appellate courts have concluded that trial judges are well placed to assess the credibility and reliability of expert evidence and whether the experts have discharged their duties in an impartial manner. 68. As against this legal backdrop, the defendant has scarcely explained the basis of this ground of appeal, which impugns the evidence of the plaintiffs’ acoustic experts, Mr. Stigwood and Ms. Large. It was intimated that an argument would be made that in adopting a “bespoke” analysis” for the assessment of the WTN, these experts had failed to discharge their duties to the court. It is said that such a bespoke approach does not comply with the standards and practice of the acoustics profession which is sufficient to raise an inference of partiality. 69. As the defendant’s submissions went no further than this, I entertain serious reservations about the arguability of this ground. Indeed, the DEFRA guidance6 expressly states that, in the investigation of nuisance, “there is no one size fits approach that can be applied in all situations; instead, a bespoke investigation is required in each case”. 6 As referenced in para 384 of this court’s module 1 judgment. 16 ix. the High Court erred in law and fact in determining that the Defendant’s expert, Mr. Carr, displayed a partisan approach and that therefore less weight should be given to his evidence. 70. Counsel for the defendant essentially limited himself to stating that this conclusion was “capable of being argued on appeal”. Again, I have no real sense of the gravamen of this ground of appeal. 71. I had an opportunity to observe Mr. Carr’s demeanour in court. I was struck by his refusal to engage with the actual complaint made by the plaintiffs and their experts. He maintained this stance through many days of direct and cross-examination and, to a large extent, throughout his evidence in module 2. I was driven to conclude that Mr. Carr had failed to apply his critical faculties and expertise to the case actually being made by the plaintiffs and had effectively brought only part of his expertise to the court. 72. My concerns in this regard are by no means diminished by the fact that,7 in Byrne and Moorhead v. ABO [2025] IEHC 330, all experts, of which Mr. Carr was one, fully subscribed to the view that, in assessing WTN nuisance, one does not simply consider the loudness of the WTN. A number of features such as AM values, frequency, changeability, erraticism, unpredictability, duration, and timing of the noise, are relevant. These are all features which the plaintiffs’ experts maintained were relevant to the assessment of WTN at module 1 of this case. Mr. Carr declined to engage with, or consider, these characteristics of the WTN in any meaningful way. x. the High Court erred in law and fact in its interpretation of Condition 15 of the Ballyduff Windfarm Planning Permission, including its finding that the correct interpretation of same is that that noise levels from the turbine may not exceed 40 dBA leq at windspeeds between 5 m/s and 10 m/s. 73. This ground of appeal is only dispositive (in the sense that it would reverse the liability outcome of this case) if the appellate court accepts that condition 15 is either a “wholly reliable indicator” of nuisance or provides a threshold of impact for nuisance (or reaches some other conclusion of like effect). If not, then the interpretation of the planning permission is not dispositive. This ground is therefore derivative on grounds (ii) and (iii) 74. The defendant’s argument appears to be simply that this court erred in its findings and that the appellate court will correct this. Aside from indicating that it will rely upon the evidence of its planning and acoustic experts, the defendant has not further articulated the nature of the court’s error. I have very little to go on in assessing the arguability of this ground of appeal. xi. the High Court erred in law and fact in finding that the Defendants bears the onus of proving that the [WTN] is compliant with [condition 15] 75. It must first be noted that this ground of appeal is also derivative on grounds (ii) and (iii). It can only avail the defendant if it succeeds on these two core grounds. 7 See para. 29 of my module 3 judgment. 17 76. In support of this ground, the defendant intends to argue that, where planning non- compliance is alleged by the plaintiff, they should bear the onus of proving that the matter complained of constituted unauthorised development and was not exempted development. 77. It seems to me that this submission confuses the onus of proof applied by the court in respect of the defendant’s “wholly reliable indicator” defence with that applied to the plaintiffs’ fallback argument (which was that the WTN constituted unauthorised development which ought to be restrained under s. 160). 78. I took the view that, as the defendant asserted compliance with the planning permission, it was for it to demonstrate such compliance. However, when examining the plaintiffs’ argument that the development was unauthorised, I expressly imposed the onus of proof upon the plaintiffs. 79. The defendant maintains that there is “scope for legal argument” on whether the court was correct in imposing this onus of proof on the defendant in respect of the defence asserted. No further assistance is offered to the court to assess arguability. xii. the High Court erred in law and fact in finding that compliance with Condition 15 of the Planning Permission cannot be established by reference to the measurement of noise levels at HH. xiii. the High Court erred in law and fact in finding that the Defendant failed to demonstrate compliance with Condition 15 of the Planning Permission by reference to the measurement of noise levels at NF. 80. Once again, grounds of appeal (xii) and (xiii) are derivative upon grounds (ii) and (iii). In order for grounds (xii) and (xiii) to be dispositive, the defendant must succeed in its argument that the planning permission was a “wholly reliable indicator” of whether the WTN is objectively reasonable (or that it provides a threshold of impact for nuisance). Indeed, grounds of appeal (xii) and (xiii) are also derivative on ground (x). If this Court’s interpretation of condition 15 is correct, then total operational noise at both HH and NF exceeds the relevant limits in any event.8 Planning compliance could therefore be established without further evidence identifying and “stripping out” background noise levels. No such evidence has been tendered. xiv. the High Court erred in law and fact in finding that the IOA Reference Method is not an appropriate metric for Amplitude Modulation measurements. 81. Ground of appeal (xiv) maintains that the court erred in fact and in law in finding that the IOA reference method is not an appropriate metric for measuring AM. 82. This court did not so find. Counsel was asked to identify where the court had made this finding and referred the court to para. 366. In this paragraph, I concluded that the IOA RM did not purport to be a yardstick for nuisance. The IOA RM does not tell one what the WTN sounds like; it does not differentiate between swish and thump AM. It is not designed to assess the experience of recipients of WTN with high AM values and thump AM in particular. This is quite a different finding from that attributed to the court at ground of appeal (xiv). 8 See para. 341 of the module 1 judgment. 18 83. Counsel for the defendant did not further articulate the stateability or arguability of grounds (v), (vi), (vii) and (xv) to (xvii)9 and I will not unduly lengthen this judgment by considering same Grounds of appeal arising from modules 2 and 3 84. I do not propose to analyse seriatim the intended grounds of appeal in respect of this court’s module 2 judgment on remedies and its module 3 judgment on damages. I will confine myself to the following observations. 85. I note that a number of the module 2 grounds of appeal appear to misunderstand this court’s findings. For example, ground (vi) contends that the court erred in finding that the defendant’s analysis of the 2017 NF data using the new IEC (“ the IEC AM analysis”) could, with reasonable diligence, have been obtained for use at module 1. This was not the finding made at module 2. The court actually found that an IOA RM analysis could with reasonable diligence have been put before the court at module 1 and that, insofar as relevant, there were no significant distinctions between the IOA RM and IEC AM methodologies for assessing AM. Equally, ground (viii) asserts that this court erred in finding that the 2017 NF data was of no relevance to the court’s finding on liability, that the court’s judgment on liability should not be revisited, and that the 2017 NF data should be excluded. This court did not find that the 2017 data was of no relevance. I found that it could, with reasonable diligence, have been presented at module 1 and that, even if admitted, it would not substantially impact or alter my finding on liability 86. The defendant’s core module 2 argument appears to be that this court erred in finding that the plaintiffs were entitled to a permanent injunction restraining the operation of T2. The defendant argues that, even if this court’s module 1 finding on liability is upheld, it is quite possible that the appellate court will decline to order a perpetual injunction modifying the operation of T2. 87. Shortly after I delivered my module 2 judgment, judgment was delivered in Byrne and Moorehead v. ABO. Quinn J. granted a permanent injunction directing the 24/7 shutdown of the turbines the subject matter of the nuisance complaint. I view this judgment as supporting many of the conclusions drawn in my module 2 judgment. In the absence of further argument, I can comment no further on the arguability of these grounds of appeal. 88. Turning to module 3, the defendant advances five separate grounds of appeal. There is no need to consider them seriatim at this stage. Rather, I will accept for the sake of argument that these grounds are statable. However, because I have decided to stay the 9 That the court erred in: (v) Finding that the characteristics of the noise amounts to an unreasonable interference with the Plaintiffs’ enjoyment of their property; (vi) Its treatment of the evidence of Ms Maura McGinn, and in particular its ruling that Ms. McGinn does not represent the putative objectively reasonable person; (vii) Finding that the objectively reasonable requirements for a claim in nuisance have been made out such that the wind turbine noise is a substantial interference with the Plaintiffs’ (or, in the case of the Carty/ Shorten Plaintiffs, has historically interfered with their) use and enjoyment of their respective properties (xv) Its reliance on the DEFRA Guidance, inter alia, in circumstances where the DEFRA Guidance does not provide an objective yardstick as to what amounts to a nuisance and (xvii) Its assessment of AM values, inter alia, by approximating AM values in the master bedroom of HH by reference to the values presented in another room of HH. 19 payment of damages in any event, these grounds are not of immediate relevance to this court's intended order. Conclusions in relation to stateability and arguability 89. It appears that the defendant intends to re-run all of its first instance arguments in an effort to persuade the appellate court to come to a different view. It does not appear that the defendant intends to argue that this court’s findings of fact, either those which were purely factual or those based on the expert evidence, are unsupported by credible evidence. Rather, the defendant argues that one is in the realm of assessing whether the logic proffered by the expert was sound, which offers greater scope for review by an appellate court. 90. Despite the validity of this central proposition, the defendant has offered scarcely any argument to assist this court in understanding why it says that the logic of the plaintiffs’ experts was flawed, why the logic of its own experts ought to have been preferred or why this court’s understanding of either suite of evidence was in error. The defendant’s argument is essentially that the case was novel and difficult, that it involved many days of evidence and argument and that there is, in counsel’s words, “scope for argument”. 91. I accept that there is a low threshold in establishing stateable and/or arguable grounds of appeal. Counsel for the plaintiffs also acknowledged that almost anything is arguable. 92. The key grounds of appeal are grounds (ii) and (iii) of module 1. Whilst it seems to me that the defendant’s central arguments on these grounds run counter to established legal authority, I must also recognise the complexity and novelty of the issues which arose in this litigation. The interaction of planning law and nuisance has not previously been expressly considered in the context of WTN in this jurisdiction. Although I sought, in my three judgments to make appropriate findings of fact and to faithfully apply the caselaw, it is possible that an appellate court would reach different conclusions. Therefore, although I have serious reservations concerning the arguability of many of the intended grounds of appeal, I cannot ultimately conclude that there are no arguable or stateable grounds. 93. As the module 1 liability finding is the foundation for the findings impugned in modules 2 and 3, it follows that same must also meet the threshold of arguability. As such, I find that the defendant has established arguable grounds, albeit not strong grounds for appeal. The adequacy of damages Are damages an adequate remedy for the defendant if a stay is refused and the defendant succeeds in the intended appeal? 20 Irrecoverable financial loss to the defendant 94. The defendant submits that the final orders will have a significant financial impact upon it, which cannot be undone in the event that a stay is refused and it succeeds in the intended appeal. 95. The defendant’s annual turnover for the years ending on 30 April 2023 and 30 April 2024 was circa €2.2 million and €1.7 million respectively. It contends that its lowest forecasted annual revenue for the next twelve months is circa €1.25 million. 96. The defendant also estimates that the overall reduction in power generation as a result of the modifications required by the court’s injunction will be 18%. 97. On the basis of its anticipated annual revenue for the next twelve months, the defendant estimates that the injunction would give rise to annual losses of at least €225,000, or €18,750 per month. 98. The defendant supports these calculations by financial statements and Excel spreadsheets of past SCADA data comparing power values with and without the injunction in place during sensitive periods. 99. The plaintiffs do not accept these calculations. Given that this court’s injunction restricts power generation at varying times of the day and night; I wonder whether it would actually produce a “flat” reduction of 18% of the company’s revenue. 100. However, in the absence of any evidence to the contrary, I will assume that, if no stay is granted, the defendant will incur financial loss of the order set out above for a period of time. If the appeal succeeds, then it will follow that this financial loss ought not to have been incurred. I also accept that the defendant will be unable to recover this financial loss either from the plaintiffs or anyone else. To that extent, I accept that damages could not be regarded as an adequate remedy for the defendant. 101. On the other hand, it must also be noted that if a stay is granted and the appellate court were to dismiss the liability appeal and to grant a permanent injunction, then it would follow that the windfarm ought to have been restrained in some fashion and that the defendant ought not to have been in receipt of revenue in the amounts indicated. On this scenario, the revenue earned between the date of this court’s final order and the determination of the appeal would be windfall profits which ought not to have accrued. There is no obvious mechanism for the disgorgement of those profits. Breach of the defendant’s financial covenants. 102. Mr. Brazil’s evidence is that, pursuant to the terms of its loan facility with its lender, the defendant has provided, inter alia, a first legal charge over its leasehold interest in the wind farm. 103. The defendant is also obliged to comply with various financial covenants pursuant to the terms of its loan facility. The loan facility provides that the defendant must ensure that it maintains an overall debt service reserve amount of over €575,000 in a special purpose deposit account under the control of the bank. For example, in the year ending 30 April 2024, this effectively reduced the available cash reserves of just over €1 million to just shy of €450,000. 21 104. The defendant also notes that the loan facility also requires it to maintain a debt service coverage ratio of at least 1:10 for the duration of the facility. 105. The defendant submits that if it is required to comply with the terms of the injunction, this will (a) cause the defendant to suffer significant losses month on month and (b) result in a serious risk of the defendant breaching its financial covenants. Furthermore, if the defendant is required to immediately pay damages to the four plaintiffs and/or to make a payment out in respect of costs, this will put it into immediate default of its financial covenants. 106. This may be declared by the lender as an alleged default, which could lead to enforcement steps which could not subsequently be reversed or compensated by an award of damages. Such enforcement steps could also affect the defendant’s ability to prosecute the intended appeal to conclusion which would be an unjust state of affairs. 107. Essentially, the defendant therefore submits that if a stay is declined, there is a risk that it will suffer irremediable and serious damage in advance of the hearing of the intended appeal in the form of both financial losses and/or enforcement action. 108. It goes without saying that the potential consequences of such enforcement action are of a greater level of severity than those flowing from the financial loss outlined at para. 97 above. 109. For their part, the plaintiffs argue that there is insufficient evidence to support a conclusion that the contended financial losses will in fact be incurred, still less that the defendant will be placed into breach of its covenants and subjected to enforcement action. For example, the plaintiffs state that the defendant has failed to open its accounts for the year ended 30 April 2025 before the court and has relied on accounts for the previous year, which are now 19 months old. This is an unfair criticism. The defendant’s accounts for the year ended 30 April 2025 are not yet due. They have not been withheld. 110. On the other hand, I accept that the defendant goes too far in arguing that the financial losses which it may suffer if a stay is not imposed would have wiped out the profit for the years 2023 and 2024. 111. Thus, I note that the detailed profit and loss account for the year 2023 reveals a turnover through sales of over €2 million. After the deduction of various forms of expenditure, the profit before taxation is very substantially reduced to just below €350,000. However, almost €1 million of this expenditure is accounted for by overheads consisting, inter alia ,of administrative expenses for legal and professional fees. As I understand it, the vast majority of these legal and professional fees arise from the current litigation. Were it not for the costs of this litigation, the 2023 profit before taxation for that year would have been well over €1 million. 112. Similarly, the company’s cash reserves in the year 2023 would have been significantly higher were it not for these extraordinary and virtually one-off legal costs. 113. Legal costs were significantly lower in 2024. However, the company paid out a solidarity contribution of almost €250,000. I understand that this payment is not expected to arise again in the short to medium term. Were it not for these two items of expenditure, the defendant’s profit before taxation in 2024 would have been healthy. 22 114. In summary, whilst the losses estimated to flow from the injunction are not insignificant, they would not render the company unprofitable but for the existence of the other extraordinary non-recurring items. There is equally no sound basis upon which to conclude that the injunction would render the defendant’s business unprofitable for the years 2025 and 2026 or place it in breach of its financial covenants. 115. The defendant swore two supplemental affidavits in the context of the stay application. The first of these affidavits demonstrated that the defendant’s insurer has declined cover in respect of nuisance, these proceedings and any associated costs. The defendant is disputing the declinature of cover, and this dispute is likely to be referred to arbitration in early course. It would not be appropriate to speculate as to the outcome of this arbitration. Suffice it to say that, if cover was validly declined, then the defendant will not be in a position to recoup its losses. The reverse also applies. 116. The second affidavit sworn by the defendant exhibited the general terms and conditions of its loan agreement. These specify various acts of default including if a judgment is obtained against the borrower which remains unpaid for a period of fourteen days. 117. The defendant argues that if it is ordered to pay out the damages assessed, then irrespective of the outcome of any subsequent stay application to the appellate court, an event of default will technically have occurred. Whilst I accept the logic of this argument, it applies only to the payment of damages (and costs) and not to the terms of the injunction. 118. The loan agreement also specifies that a material change relevant to the borrower which in the opinion of the bank is prejudicial to the bank’s interests may be an act of default. The defendant argues that if the court declines to grant a stay, this could be considered such a material change. 119. However, the defendant has presented no evidence that its lender has ever suggested that the consequences of this court’s liability judgment over 18 months ago could give rise to an act of default. Mr. Brazil makes no reference to any engagement or negotiation with the defendant’s lenders in respect of the liability of the defendant on foot of the liability judgment, the intended injunction or the awards of damages. There is likewise no evidence that the lender has indicated that the refusal of a stay may have significantly prejudicial consequences. 120. In summary, I accept that the defendant will incur irrecoverable financial losses if this court’s injunction is not stayed, for which damages are an inadequate remedy. I am not, however, satisfied that withholding a stay on the injunction would also give rise to a real risk that the defendant would breach its loan agreement. I am therefore not satisfied that there is a real risk the operation of the injunction between now and the conclusion of the appeal will inflict upon the defendant the irremediable loss of its loan facilities or the enforcement of the security offered to the bank. Nor is there a real risk that this would deprive the defendant of its ability to prosecute the intended appeal to conclusion. 23 Are damages an adequate remedy for the plaintiffs if a stay is granted and the appeal is unsuccessful? 121. As the defendant points out, only one of the four plaintiffs currently lives in Ballyduff. The only impact on three out of the four plaintiffs, were a stay to be granted and the appeal to fail, is the delayed recovery of a liquidated sum. 122. The defendant is prepared to undertake to pay interest on the damages awarded to all four plaintiffs in the event that its appeal does not succeed. None of the plaintiffs have argued or demonstrated that they would be willing or able to repay the damages awards in the event of the appeal succeeding. I accept that the defendant’s undertaking avoids the risk of serious injustice in the case of the three non-resident plaintiffs and, insofar as concerns the damages award only, in the case of Ms. Webster. 123. It is therefore necessary to examine the impact on Ms. Webster of the grant or refusal of a stay on the injunction. 124. The plaintiffs argue that the proposed injunction is designed by this court to vindicate the rights of the plaintiffs but also to be fair and reasonable to the defendant. Ms. Webster avers that the defendant’s estimated loss of less than one fifth of its likely revenue does not constitute harm to a corporate defendant of a character that would outweigh the considerations which prompted this court to order an injunction. 125. The defendant submits that the Module 3 judgment expressly provides that the award to Ms. Webster of €10,000 per annum is to continue until such time as the injunction is implemented. However, the court’s reference to continuing general damages for Ms. Webster was not in anticipation of this court necessarily granting a stay. The stay application had yet to be moved at that time. The continuing award was specified for the sake of clarity in the event either that this court was persuaded to grant a stay on the injunction or that same was granted by an appellate court (and the appeal was ultimately unsuccessful). The relatively modest award of damages per annum is not a licence for the commission of further nuisance. 126. The defendant submits that if a stay is granted, Ms. Webster can be adequately compensated in damages by the mere extension of the period for which damages are to be awarded. Essentially, therefore, the defendant argues that damages would be an adequate remedy for Ms. Webster for the relevant period of time. 127. I disagree. The WTN impacts all aspects of Ms. Webster’s home life and deprives her of the healthy and comfortable enjoyment of her home. No award of money can truly compensate Ms. Webster for this degree of intrusion on a family home or for the imposition of further sleeplessness, stress, upset, mental distress, and annoyance on a day-to-day basis. I note in this regard that Ms. Webster now currently works at home two or three days per week during the day time and is impacted by the WTN during the working day. 128. The mere fact that it may be possible to put a value on this nuisance does not of itself mean that damages are an adequate remedy for Ms. Webster, who is entitled to the right of peaceful enjoyment of her home instead of to its equivalent value. 129. I conclude that damages are not an adequate remedy for Ms. Webster should the appellate court uphold this court’s finding on liability and grant some form of injunction. 24 Where does the greatest risk of injustice lie? 130. I have concluded that there is a real risk that either granting or refusing a stay will cause damage to one party or the other which cannot be remedied. If this court declines to grant a stay, the defendant will suffer financial loss which it will not be able to recover either from the plaintiffs or anyone else. On the other hand, if a stay is granted but the appeal fails, it would follow that the wind farm had caused continuing nuisance to Ms. Webster in a manner which cannot be compensated in damages. It would also follow that the defendant would have profited financially from operating the wind farm in a manner that causes nuisance. 131. In short, there is in this case a clear and unavoidable risk of injustice whatever course is adopted. As in Krikke, the risk of harm to either side is not commensurable. In such a case there is no simple rule of thumb which can reduce this risk, and the court must necessarily adopt a nuanced approach and attempt to determine where the greatest risk of injustice lies. Whilst the adequacy of damages is often the most important component of this balancing exercise, it cannot always be decisive. In the present case, it seems to me that factors such as (a) the conduct of the defendant, (b) the defendant’s approach to the mitigation trial, (c) the defendant’s delay since this court’s liability judgment, (d) the length of time that the nuisance found by this court has been continuing, and (e) the respective strengths of the parties’ cases on appeal remain to be considered in assessing the balance of convenience or the balance of justice. Factors which I consider of particular relevance to the exercise of my discretion in this case. (a) The defendant’s conduct: unneighbourliness 132. The plaintiffs submit that there is a public interest in upholding fundamental concepts of good neighbourliness and common neighbourly decency which find expression through the law of nuisance and which underpin civil society. They submit that the defendant has acted in flagrant breach of these standards, which ought to incline this court to refuse a stay. 133. I accept that the defendant’s conduct, including whether it can be said to have acted with good neighbourliness, is a factor to which weight ought to be afforded in the present application. The relevance of good neighbourliness in the context of private nuisance was referenced by Quinn J. in Byrne . In considering whether to grant a full injunction or a partial injunction and awarding damages for an ongoing nuisance, Quinn J. noted that the authorities, such as the judgment of Lord MacNaghten in Colls v. Home and Colonial Store Ltd [1904] AC 179 and the judgment of Neuberger P in Lawrence & Anor v Fen Tigers Ltd & Ors [2014] 2 AER 622, establish that a court can consider whether or not a defendant who requests to pay damages for an ongoing nuisance to avoid an injunction has acted in a neighbourly spirit. The same observation is made by Lord Leggatt in Fearn v. Board of Trustees of the Tate Gallery who called it the concept of reciprocity. A landowner must have the same consideration for his neighbours as he would expect his neighbour to show for him. 134. Whilst I do not go so far as to find that the defendant has acted in bad faith, I cannot avoid the conclusion that the defendant has acted in an unneighbourly manner, as explained 25 at paras 201 to 203 of my module 3 judgment. This is a factor weighing against the grant of the stay. (b) The defendant’s approach to the trial-and-error mitigation 135. Module 2 was designed by the court to afford the defendant an opportunity, by a process of tr