- The noises in the first three cases were all man-made, while the noise in Courtney v Howell was a recording of a natural bird call.
- The noises in the first three cases occurred overnight, or at an early hour, while the noise in Courtney v Howell occurred during daylight hours.
- The noises in the first three cases were repetitive and incessant, while the noise in Courtney v Howell was intermittent.
The defendants argued that their conduct was not substantial, and merely fleeting because the device complained of emitted sounds for only two hours per day, intermittently. The noise was not generally distinguishable from the ambient noise in the area.
The wind farm could argue that noise from the wind farm merely amounted to an intermittent (occasional) nuisance to surrounding properties, and was not substantial. Alternatively, the wind farm could argue that their conduct has such social utility that it is essential and unavoidable.
While damages may effectively compensate for inconvenience or interference experienced in the past, an injunction would ensure that the plaintiff will not again be inconvenienced by the conduct in the future.
The plaintiff claimed that the harm caused by the defendant’s conduct was substantial, and not fleeting and that the interference with the plaintiff’s property was unreasonable, despite the erection of the fence. Essentially, the number of golf balls being hit onto the property prevented the plaintiff from undertaking activities on the property or simply enjoying the view.