Noise from wind turbines
We review a recent case on developer’s obligations to provide the data used for noise calculations for a wind turbine farm.
In this case (R (on the application of Hulme) v Secretary of State for Communities and Local Government) the court considered whether a developer’s refusal to provide to a wind turbine objector the raw data on which it had based its noise calculations was lawful and the effect of taking measurements of noise levels in accordance with Government recommended methods.
A developer applied for planning permission to build a wind turbine farm on open agricultural land. The land was in an attractive valley and the wind farm covered a significant part of it. The owner and occupier of a house nearby, H, objected to the planning application on the grounds of noise.
At the request of the Local Planning Authority, the developer measured the level of noise emissions resulting from the operation of the turbines. The developer measured the same in accordance with current planning policy. The methodology was established by the Energy Technical Support Unit, a working group established for the purpose of providing information and advice to developers and planners on assessing and rating the noise from wind farms. The methodology provides “a framework for the measurement of wind farm noise and gives indicative noise levels thought to offer a reasonable degree of protection to wind farm neighbours without placing unreasonable restrictions on wind farm development”. The developer’s calculations showed acceptable noise levels. H asked to see the developer’s raw data but the developer refused to produce it.
The Local Planning Authority refused planning permission (not on the grounds of noise). The developer appealed and the inspector allowed the appeal. A number of issues were in play in the appeal, namely, the contribution the development would make to the generation of electricity, the impact upon the visual amenity of the countryside and thirdly, the impact upon people living near to it such as from noise.
On appeal, the inspector concluded that the developer had complied with the Energy Technical Support Unit’s methodology in measuring noise from the wind farm and the calculations indicated that the level of noise would be acceptable. Planning consent was granted subject to a condition restricting noise levels to no more than 5 decibels above background noise levels and requiring the developer to measure the levels of noise if a complaint were received.
H appealed on the grounds that:
- The developer refused to provide his raw data, and
- The condition attached to the planning permission on noise levels was too imprecise to be enforced.
H’s appeal was refused. The court concluded that:
- (i) Although the developer had unconvincing reasons for refusing to provide its raw data, the inspector had no power to order it to be disclosed. The court did criticise the developer’s failure to provide the information and implied that an inspector could draw an adverse inference from it. We might expect more requests for raw data in the future as a result.
- The Energy Technical Support Unit had provided clear methodology and framework for the measurement of wind farm noise and the developer had taken its measurements in accordance with the recommended methods. Noise levels were found to be acceptable. The condition was not too imprecise and was capable of enforcement if the neighbour were to make a further complaint concerning actual noise levels exceeding those set out in the condition.
Government policy is that the Energy Technical Support Unit’s methodology should be followed and if followed, this case shows that the courts will rely on the resulting calculations.