Wind turbines are like new neighbours who might drive you to distraction and out of your home because you have no legal way to deal with the situation, a packed Ontario court heard Monday.
In submissions to Divisional Court, a lawyer for four families fighting large-scale wind-energy projects compared the turbines to a neighbour who is always noisy and in your face.
"This neighbour never once ruptured your eardrums but that neighbour slowly drives you crazy," Julian Falconer told the court.
"These turbines are those nightmare neighbours."
The families are trying to get the court to declare provincial legislation related to the approvals of large-scale wind farms unconstitutional.
In essence, they argue, the legislation makes it impossible to scuttle a project on the basis of potential health effects.
"The priority is to get the turbines up come hell or high water and that's what they do," Mr. Falconer said.
"My clients have to wait until the turbines are spinning before they get to make an argument they must be stopped – it's Alice in Wonderland."
The Drennans, who live near Goderich, Ont., are among the families involved in the first constitutional challenge to the Green Energy Act to reach the appellate court level.
Twelve turbines of the proposed 140-turbine K2 Wind project are being put up within two kilometres of their long-held farmstead.
"I must prove it will harm me, where if I was a drug company, they would have to prove they were safe," Shawn Drennan said in an interview. "The wind company does not have to do that."
Mr. Falconer, who sought to introduce a new Health Canada study as fresh evidence, said the science on the health impacts of wind turbines is unsettled.
A summary of the federal study, released Nov. 6, turned up no direct link between wind-turbine noise and health effects, such as headaches, high blood pressure and stress.
However, the study did uncover a link between turbine noise and "high annoyance."
"The findings support a potential link between long-term high annoyance and health," the summary states.
"We did find that people who were highly annoyed were more likely to report other health effects."
Mr. Falconer told the court that people have consistently reported being driven from their homes by turbines.
At the same time, he said, provincial legislation makes it impossible for reasonable people to argue the turbines might harm them.
"They must prove that it will harm them," he said. "That's constitutionally unsound."
The court, he said, should alter the "rigged" legislation to force authorities to consider a "reasonable prospect of harm" when approving a project.
Associate chief justice Frank Marrocco, one of the three appellate judges hearing the case, admonished the courtroom crowd for applauding some of the submissions.
Earlier in the day, a lawyer for a coalition of 14 community groups said the right of citizens to fight turbines on the basis of health impacts is illusory.
In his submission, Richard Macklin noted the province's Environmental Review Tribunal has heard 20 health-based challenges to wind farm projects.
"They have all been unsuccessful," Mr. Macklin said. "We see that as a cumulative charter violation."
In addition, Lambton county sought to intervene on the grounds that provincial legislation has usurped the right of municipalities to regulate against potential harm to their residents.
The judges said they would decide at a later point whether to allow the written interventions and admit the fresh evidence.
The hearing continues Tuesday, when the government gets a chance to argue its case.