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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> CRE Energy Ltd Re: A Decision Of The Scottish Ministers [2006] ScotCS CSOH_131 (29 August 2006)
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Cite as: [2006] ScotCS CSOH_131

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OUTER HOUSE, COURT OF SESSION

 

[2006] CSOH 131

 

     

 

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD KINCLAVEN

 

in the Appeal to the Court of Session

under section 239 of the Town and Country Planning (Scotland) Act 1997

 

by

 

CRE ENERGY LIMITED

 

Appellant;

against

 

A decision of the Scottish Ministers

by their Reporter W M H Patterson Esq.

dated 3 March 2005

 

ญญญญญญญญญญญญญญญญญ________________

 

 

Appellant: C M Campbell QC; McGrigors

First Respondents: Crawford; Office of the Solicitor to the Scottish Executive

Second Respondents: J D Campbell QC; Biggart Baillie

 

29 August 2006

 

Introduction

[1] This is an appeal under section 239 of the Town and Country Planning (Scotland) Act 1997 ("the 1997 Act") by CRE Energy Limited ("The Appellant") against a decision of the Scottish Ministers ("the First Respondents") by their Reporter W M H Patterson Esq. ("the Reporter") dated 3 March 2005. The Second Respondents are The Highland Council, Glenurquhart Road, Inverness.

[2] The appeal relates to an application by the Appellant for planning permission for a development of wind turbines and associated infrastructure at Borrowston Mains, Dounreay, Thurso, Caithness.

[3] That application was refused by Highland Council.

[4] The Reporter refused an appeal.

[5] The Appellant appealed to the Court of Session and argued that the Reporter's decision should be quashed.

[6] At the hearing of the appeal, Mr Colin Campbell QC appeared for the Appellant. Ms Crawford, Advocate, appeared for the Scottish Ministers. Mr John D Campbell QC appeared for the Highland Council.

[7] In outline, the Grounds of Appeal relate to two main areas of the Reporter's decision, namely:-

(Firstly) Landscape and Visual Impacts, and

(Secondly) Noise impacts.

[8] The Appellant's basic submission was that the decision of the Reporter was not within the powers of the 1997 Act and was ultra vires.

[9] In the whole circumstances, and for the reasons outlined below, I have decided to refuse the appeal.

[10] In summary, I was satisfied that the Reporter's decision in relation to landscape and visual impacts was well founded. I was also satisfied that the adverse conclusion in relation to landscape and visual impacts was bound to lead to refusal of the appeal. The Reporter's decision refusing the appeal was within the powers of the 1997 Act.

[11] I was not satisfied that the decision should be quashed.

[12] My reasons are as follows.

 

Overview
[13]
I propose to deal with the issues in the following order:-

        The Statutory Provisions;

        The Reporter's Decision;

        The Appellant's Position - in General

        Landscape and Visual Impacts

o       The Appellant's position;

o       The Position of the Scottish Ministers;

o       The Position of the Highland Council;

        Noise Impacts

o       The Appellant's position;

o       The Position of the Scottish Ministers;

o       The Position of the Highland Council; and

        Discussion and Decision.

 

The Statutory Provisions

[14] Section 239 of the 1997 Act provides inter alia that:-

 

"(1) If any person -

(a) is aggrieved by any order to which this section applies and wishes to question the validity of that order on the grounds -

(i) that the order is not within the powers of this Act,

he may make an application to the Court of Session under this section."

[15] Section 239(5) provides inter alia that:-

"On any application under this section the Court of Session- ...

(b) if satisfied that the order ... in question is not within the powers of the Act ... may quash that order ..."

 

The Reporter's Decision

The Decision Letter - Generally

[16] In order to see the parties' submissions in proper context, it may be helpful to outline the Reporter's decision of 3 March 2005 in some detail.

[17] The Reporter, W M H Patterson, was appointed to determine an appeal by CRE Energy Limited against the refusal by the Highland Council of planning permission for the "erection of ten turbines and associated infrastructure ... ", at Borrowston Mains, Dounreay.

[18] The Reporter held a public local inquiry into the appeal at Thurso on 7 to 10 December 2004 and 4 February 2005. He made an accompanied tour of what he considered to be relevant sites on the afternoon of the first day and made further unaccompanied visits during and after the first four days of the inquiry, including viewing towards the site from the Scrabster to Stromness ferry, in what he described as very clear conditions, on 11 December. His final site visit was on the afternoon of 4 February, when he walked from Achreamie, past the site along the A836, and through the Forss Business Park.

[19] The Reporter sets out the Factual Background in section 2 of his decision letter. He also gives details of the Site Description, the Application, Development Plan Policy and Scottish Executive Policy and Guidance.

[20] In general terms the appeal site is some 11 km due west of central Thurso, and close to the north-east of the Dounreay Nuclear Establishment. It corresponds to the lands of Borrowston Farm and is an approximate rectangle bounded to the north-west by a low, rocky shoreline and to the south-east by a straight stretch of the A836 road which connects Thurso and the north coast of Sutherland. (see paragraph 2.1).

[21] The application for planning permission was refused by the Highland Council for the following reasons (paragraph 2.5):-

(1) By virtue of their scale, siting and layout, the ten turbines proposed would represent a dominant and linear feature in the landscape between Forss and the Dounreay Nuclear Establishment to the extent that they are considered unacceptable in their adverse impact on the landscape character and visual amenity of the coastal strip when seen from the A836 road, and from housing nearby, particularly at Buldoo, Achreamie and properties close to the A836.

(2) Turbines 1 and 6 will in particular have an adverse impact on the residential amenity of nearby properties at Buldoo while turbines 7-10 are closer than desirable to the A836 in the context of the proposed linear layout, residential amenity and scenic views.

(3) The proposals are therefore contrary to the terms of Structure Plan Policy E2 in respect of visual impact, excessive to a degree in the context of Policy T6 which seeks to protect scenic views and Policy L4 in respect of maintaining and enhancing present landscape character. They are also contrary to Policy G2 in respect of adverse impact on individual and community residential amenity.

 

The Decision Letter - Development Plan Policy

[22] In relation to Development Plan Policy (paragraph 2.6 of the Decision Letter) the Highland Structure Plan includes the following policies:-

G2 Design for Sustainability

Proposed Developments will be assessed on the extent to which they: ...

[7] impact on individual and community residential amenity; ...

[10] demonstrate sensitive siting and high quality design in keeping with local character and historic and natural environment and in making use of appropriate materials; ...

Developments which are judged to be significantly detrimental in terms of the above criteria shall not accord with the Structure Plan.

E1 Distributed renewable energy developments

The Council supports the utilisation of the region's distributed renewable energy resource, including hydro, wind, wave and tidal stream power. Proposals will be assessed against the provisions of the General Strategic Policies. ...

E2 Wind Energy Developments

Wind energy proposals will be supported provided that impacts are not shown to be significantly detrimental. In addition to the General Strategic Policies, wind energy proposals will be assessed in respect of the following:

        visual impact

        noise; ... and

        cumulative effects.

T6 Scenic Views

The Council will protect important scenic views enjoyed from tourist routes and viewpoints, particularly those specifically identified in Local Plans. There will be a presumption against development in narrow areas of land between roads and railways and open water.

L4 Landscape Character

The Council will have regard to the desirability of maintaining and enhancing present landscape character in the consideration of development proposals, including offshore developments.

[23] In relation to the Caithness Local Plan, the Reporter notes (in paragraph 2.7) that policy 23 sets a 5 km safeguarding zone around the Dounreay Nuclear Establishment and seeks to maximise economic opportunities during the decommissioning period. By Primary Policy PP3 for areas including the appeal site "The council will presume against development particularly where there would be significant harm to heritage, amenity or public health". The local plan also includes the following policies:-

26. The former US Navy communications base at Forss on the coast between Thurso and Dounreay is a large scale complex available for development. The major extent of the site and buildings, together with the existing infrastructure, suggest[s] potential for uses with a significant workforce and/or resident population. Consideration has been given to a range of uses including a research centre, a wind turbine site, long term secure storage, tourist facilities, residential and industrial storage associated with the oil industry. ...

46. The Council will seek to identify and safeguard scenic views from unsympathetic development. Views from public roads to open water are particularly important for amenity and tourism. To aid appreciation of scenic views the Council will favour improved lay-by parking, visitor interpretation and view point features, notably on the A9, A99 and A836.

[24] The proposals map shows the appeal site as within a policy 46 area (paragraph 2.8 of the Decision Letter).

 

The Decision Letter - Scottish Executive Policy and Guidance
[25]
In relation to the Scottish Executive Policy and Guidance the Reporter notes (in paragraph 2.9 of the Decision Letter) inter alia that National policy is, with qualifications, strongly supportive of the use of renewable energy sources to generate electricity. National Planning Policy Guideline (NPPG) 6, revised 2000 (which is Production 6/12 in this appeal), includes the following paragraph:-

"22. The aim of the Scottish Executive therefore is to ensure that the commitment to renewable energy is satisfied and supported through development plan policies and development control decisions unless, at the site level, there are serious adverse impacts that can not be mitigated. These could include the following. ...

In relation to the local community, developments should not be permitted where they would have a significant long term detrimental impact on the amenity of people living nearby, and where the impact cannot be mitigated satisfactorily."

[26] The Reporter also notes (in paragraph 2.10) that more detailed guidance about wind energy developments, including assessment of noise impacts, is given in Planning Advice Note (PAN) 45. PAN 56 'Planning and Noise' advises, in paragraph 34: "Good acoustical design and siting of turbines is essential to ensure that there is no significant increase in ambient noise levels as they affect the environment and any nearby noise-sensitive property."

 

The Decision Letter - Consultation Responses on the Application

[27] The Consultation Responses on the Application are clearly set out by the Reporter in section 3 of his decision letter (page 6 et seq.).

Decision Letter - Main Points of the Cases for the Parties
[28]
The Reporter then sets out the main points of the cases for the parties in section 4 of his decision letter (page 9 et seq.)

[29] I need not rehearse the details but, in overview, the main passages referred to by counsel included the following:-

 

The Decision Letter - The Reporter's Conclusions

[30] Having summarised the cases for the parties the Reporter sets out his conclusions in section 5 of his Decision Letter (at page 20 et seq).

[31] The Reporter states:-

"5.1 Section 25 of the Act requires the determination in this case to be made in accordance with the provisions of the development plan unless material considerations indicate otherwise. Development plan policies have been set out above. Other material considerations may include non-statutory policies and guidance of the Scottish Executive and the planning authority, and technical studies relevant to the issues covered in policies or otherwise germane to the impacts of the proposed development. I consider, from my inspection of the appeal site and the written submissions, that the issues to be determined are whether the proposal is consistent with the relevant provisions of the development plan and, if not, whether an exception to these provisions is justified by other material considerations. Because compliance, or otherwise, with development plan policies depends largely on assessment of environmental impacts, I shall first reach conclusions on the potentially significant environmental effects of the development so that these may inform assessment under the policies.

5.2 Throughout this process I shall take into account that national policy clearly favours wind energy development for its benefits in combating climate change, to the extent that I have not thought it necessary to record in detail claim and counterclaim about the specific contribution that the proposed development would, or would not, make in this regard. At the same time I shall heed the reservations in national policy about necessary safeguards in relation to environmental impacts, notably in the extracts that I have quoted above in paragraph 2.9."

 

The Reporter's Conclusions - Landscape and Visual Impacts
[32]
In relation to landscape and visual impacts the Reporter's conclusions are set out in paragraphs 5.3 to 5.10 of his Decision Letter (at page 20 et seq).

[33] Those conclusions include the following:-

"5.3 In forming conclusions about landscape and visual impact I have found most useful the visualisations in the ES (the Environmental Statement) and supplementary material, and observations made on several site visits. I accept that the visualisations are professionally sound and technically accurate, while I recognise the inevitable under-representation of the impact of wind turbines in distant views, because of the limitations of photographic (whether film or digital) and printing resolution as against that of the human eye in very clear conditions; the visualisations also, of course, cannot show the effects of rotating blades. It seems to me that the professional integrity of the visualisations extended to the categorisation of impacts according to standard terminology, while the alternative method used for local objectors has problems aptly summed up in the quote from SNH in paragraph 4.1.1 above.

5.4 The great value of the visualisations lies in the objective treatment of the effects of topography. What they cannot do, and where I am forced to make judgements from my own observations, is to take account of the presence or absence, in views, of man-made or natural features of smaller scale, which might be 'read' with the proposed development and reduce its potential impact. ...

5.9 There remains the matter of visual impacts on the nearest residents, at a small number of properties. Seven houses would be closer to turbines than the 770m at 'Amon-Sul', used for visualisations. As can be simply plotted with a layout plan and a protractor, at 'Amon-Sul' turbine towers would be visible over an arc of some 50ฐ, or a little over one eighth of the horizon; moving blades would add slightly to the angle. At Balmore the arc would be more like 80ฐ. Although the bases of the more distant turbine towers would generally be concealed by slightly convex landform, the nearer turbines would be in almost full view from the properties. The slight drop in ground levels towards the sea would have little influence on the overall visual effects, at relatively near viewing, of rotating 66 m diameter turbine blades centred 60 m above ground. If an arbitrary distance of 700 m is taken as broadly representative of those properties less than 700 m from turbines, a turbine blade at the top of its passage, at 93 m above ground, forms an angle of view of nearly 12ฐ to the slightly sloping ground. It may be helpful for the reader to envisage the angle as a slope of some 13.3% or a little over one in eight (12.5%); or by scaling down to a notional wind turbine of 9.3 m blade and 6.0 m hub height, seen from 70 m (a typical length for the plot of a large suburban villa); or by scaling up to a mountain slightly over 900m ('Munro' height) seen from 7 km.

5.10 Allowing for the considerations that only the nearest turbines would be seen at the highest angle, but conversely five houses would be 650 m or less from turbines rather than 700 m, I conclude that I might reasonably be sanguine about visual impacts on residential amenity if I knew either that those affected would be in the sector of the population most enthusiastic about windfarms, or that occupants would have a financial stake in the development. However, neither is the case. Even if I dismissed the evident hostility of near neighbours as untypical of the population as a whole, I could not with a clear conscience conclude that at the most affected houses views from gardens or windows towards the sea would not be involuntarily dominated by the windfarm to an extent that for the generality of occupants would impinge markedly on residential amenity. In reaching this adverse conclusion I would make clear that I give no weight to any minor blocking of sea views by turbine towers, as it is well established that protection of particular views from private properties is not a proper function of planning control. Returning to the visualisation for 'Amon-Sul', at 770 m from the nearest turbine and thus far from the worst case for visual impacts, I find that this conclusion can only be reinforced by the assessment in the ES of visual and landscape effects from viewpoint 10 as of 'major' significance; and by trying, in imagination, to add the effect of blade rotation to the strikingly dominant effect of the windfarm as shown in this visualisation, studied at the recommended viewing distance. In doing so I have borne in mind, as is necessary, that the visualisation shows only the affected part of the 360ฐ outlook from the property."

 

The Reporter's Conclusions - Noise Impacts
[34]
In relation to Noise impacts the Reporter's conclusions (at page 22) were as follows:-

"5.11 Assessment in this highly technical matter has not been helped by the preference of opposing experts for different methodologies, although in respect of predicted noise emissions from the proposed windfarm and immissions at affected properties the practical effect of these differences is minimal. I therefore accept that the likely immission levels, on standard assumptions, would be as stated in paragraph 4.1.8 above.

5.12 The several site visits made in widely varying conditions of wind speed and direction have been useful in demonstrating how much effect such conditions can have on perceived noise from wind turbines. Even with allowance for the greater number and size of turbines, and the possibility of excess noise from remaining mechanical problems, I was surprised that at Westerdale (grid ref. ND 127516), in conditions of light west to south-westerly breeze, noise was perceptible from the Causeymire windfarm some 2.4 km to the south-east. This is a very quiet inland location, and relatively sheltered, so it is easy to suppose that at times noise carried on the wind from the Causeymire windfarm operating in a strong breeze over its exposed site may reach Westerdale when the windspeed there is not enough to generate much masking noise from trees or other objects. I recognise that in terms of closeness to the sea and to a main road, and lack of sheltering vegetation or microtopography, the nearest houses to the appeal site are not likely to be closely comparable to Westerdale in regard to background noise levels.

5.13 In complete contrast to my experience at Westerdale on the afternoon of 10 December, was that near the Forss turbines on the afternoon of 4 February. This time there was a very light wind direct off the sea, which still had a strong swell crashing onto the shore, after strong winds earlier. The sound of individual vehicles on the A836 could easily be made out from Achreamie, some 1.31km away. The more westerly Forss turbine, turning at perhaps near the lowest effective windspeed, could hardly be distinguished at about 225 m on the road to the business park, above the noise from vehicles on the A836 some 600 m away and the shore some 450 m away. At less than 50 m the more easterly turbine was far from dominant above other noise. Yet in conditions of stronger westerly breeze in the early afternoon of 10 December, I found that noise from the nearer Forss turbine, or both, was readily perceptible at a position by the south-east corner of the ruined cliff-top St Mary's Chapel, some 480 m north-east of the nearer turbine, where there was shelter from the wind and from sea noise - though turbine noise was not perceptible from other, less sheltered positions around the ruin.

5.14 Whilst I have to be wary of generalising from a few subjectively observed instances to a different wind energy development in different conditions of background noise, I find it clear that there would be very great variability in the reception of turbine noise at the nearest houses. I also note that none of my observations, nor apparently any of the measurements of background noise for the appellants or objectors, have taken place both by night or quiet day, with relatively little traffic on the roads, and during one of those occasional spells of settled weather when even the north Atlantic waves become ripples and noise from the shore has little influence on background levels. Reliance on more usual background levels affected by north Atlantic breakers could thus lead to under-estimation of possible disturbance, such as distracting intrusion onto quiet evening activities outdoors in gardens, from turbine noise. Such activities would be most likely to take place during exactly the settled, summertime conditions when low background noise would also be most likely.

5.15 It is axiomatic that with the very lowest windspeeds there would be no movement, and hence no noise, from turbines. My own experience suggests that at windspeeds just enough to operate the turbines noise generated by them would be completely masked by routine daytime noise at distances less than that of the nearest house. By the reference windspeed of 8m/s or 28.8 km/h, it seems fair to expect that there would be some noise from waves striking the rocky shore, and an increase in background levels for some distance from the shore. However, something more than standard assessment models for inland sites seems to me to be needed for this coastal site relatively close to houses, as the ES and other appeal material provide no way of knowing whether there would be a windspeed at which significantly intrusive noise could carry from turbines to houses while the sea, after a calm spell, would not be disturbed enough to produce noise perceptibly contributing to background levels over 1 km away; nor is there any meteorological information about how frequent and prolonged calm conditions resulting in this scenario might be. The appellants' noise immission curves which I have accepted as reliable suggest that night-time background noise levels at around 6 m/s or 7 m/s, with very little contribution from the sea, would have to be remarkably low for there to be a difference of above 5dB(A); but it is not clear that such conditions could not occur too often to be ignored.

5.16 I note also: that background noise readings competently taken at different times may vary considerably because of varying conditions; the substantial reduction of the appellants' original data to take account of 'misbinning' and possible distortion by weather; the markedly lower figures produced by brief snapshot samples for the objectors albeit with differences of method; and the concession implicit in the appellants' willingness to make a new suite of background noise readings as a condition of planning permission. In the light of all these considerations I cannot avoid sharing in some degree the objectors' noise expert's misgivings about the background figures in the ES, and as later revised, which show levels of at least 40dB(A) at all times with windspeeds at or above 3m/s, at all four measurement sites.

5.17 At the same time, whilst the use of ETSU-R-97 is commended in PAN 45, it preceded advice from the World Health Organisation (WHO) to use more stringent lower limits in order to avoid disturbance and ensure restful sleep. Whatever may be the technical arguments in favour of both, use of the more stringent safeguards, as preferred by the planning authority, must have the merit of being more secure against any allegation of failure to protect human rights to home and family life and quiet enjoyment of property. In addition to the uncertainties about lower windspeeds in conjunction with quiet sea conditions, there must be real doubt whether with 8m/s immission levels of 40dB(A) or more at affected properties night-time and quiet waking hours background levels would be consistently enough at less than 5dB(A) below those, to meet the 5dB(A) exceedence criterion recommended by the WHO (all references being to dB L A90, 10min).

5.18 Whilst I do not find matters of noise impact on residential amenity so clear-cut as the significance of visual impacts, there are significant enough unfavourable or unresolved matters to reinforce the conclusions on visual impacts. It does not seem to me that in an issue as fundamental as noise impacts on residential amenity it would be responsible, or fair to the affected households, to leave unresolved questions, and future observance of essential conditions, to further investigation after granting planning permission."

 

The Reporter's Assessment under Section 25
[35]
The Reporter's assessment under Section 25, taking into account the foregoing conclusions, included the following (at page 25):-

"5.25 From the evidence and site inspections I consider that it would be unjustifiably complacent or optimistic not to find that there would be significant detriment to individual and community residential amenity from visual impacts and, albeit with less certainty, noise impacts from the proposed windfarm in normal operation, observing normal planning conditions and requirements of other regulatory regimes. In the context of the Highlands and for the purposes of this policy I do not take the word 'community'' as requiring a tightly built-up area, but as extending to loose semi-rural clusters such as along the A836 and the Achreamie road near the appeal site. There is accordingly failure under criterion [7] of policy G2. Insofar as the siting of the proposed turbines would be too close to the most affected houses to pass criterion [7], it must also be deemed not to be sensitive in terms of criterion [10], although there is no criticism of the proposed design of turbines or their layout."

 

The Reporter's Formal Decision
[36]
The formal decision of the Reporter (at page 27) was as follows:-

"6.1 In exercise of the powers delegated to me I therefore dismiss this appeal and refuse to grant planning permission for the development proposed in the application 02/00166/FULCA dated 19 April 2004."

[37] Having set out the decision letter in some detail, for ease of reference, I now turn to the Appellant's position.

 

The Appellant's position - in General
[38]
The Grounds of Appeal for the Appellant were lodged on 12 April 2005.

[39] Mr Campbell's basic submission was that the decision of the Reporter was not within the powers of the 1997 Act and was ultra vires.

[40] Mr Campbell referred to Sections 239(1)(a)(i) and 239(5)(b) of the 1997 Act which are set out above. Other possible grounds of challenge did not arise.

[41] In support of his submission, Mr Campbell, reminded me of Wordie Property Company Ltd v Secretary of State for Scotland 1984 SLT 345 and in particular the well known passage in the judgment of Lord President Emslie at pages 347-348.

[42] In the present case the essential reasons for refusal were set out in paragraph 5.25 of the Reporter's decision.

[43] One of the reasons for refusal, certainly, was visual impact.

[44] A second reason, which was less certain, was noise impact. Reference was made to paragraph 5.18.

[45] In Mr Campbell's submission, the principal or main reason for refusal related to visual impact with noise being supportive but not decisive.

[46] The appellant challenged both those aspects of the decision - (1) landscape and visual impact and (2) noise impact - as set out in the Grounds of Appeal.

[47] I shall deal with each aspect separately.

 

Landscape and Visual Impacts

The Appellant's Position

The Grounds of Appeal - Landscape and Visual Impacts

[48] In relation to landscape and visual impacts, the Appellant founds upon paragraphs 5.9 and 5.10 of the Decision Letter where the Reporter considers the matter of visual impacts on residents living near to the application site.

[49] In paragraph 2 of the Grounds of Appeal the Appellant quotes paragraph 5.9 of the Decision Letter and then states:-

"The Reporter founds on the calculations and comments in paragraph 5.10, where he concludes that the most affected houses would be "involuntarily dominated by the windfarm to an extent that for the generality of occupants would impinge markedly on residential amenity". These calculations were not provided by any party at the public local inquiry, nor were they canvassed in evidence or during submissions. The Reporter has made these calculations himself, after the event."

[50] The Appellant then contends, in paragraph 3 of the Grounds of Appeal, that:-

"In making and founding upon these calculations, the Reporter has misdirected himself. Taking the Reporter's "representative" distance of a point 700m from the turbines, and a turbine blade at the top of its passage at 93m above the ground, the angle between a horizontal line from that point to the turbine, and a line between that point and the turbine blade tip, would be (Tan x = 93/700), thus x = 7.6 degrees. To achieve a 12 degree angle at 700m, the turbine would need to be some 148m to its blade tip. The Reporter failed to give the Appellant an opportunity to comment upon these mistaken calculations before he issued his decision."

[51] Paragraph 4 of the Grounds of Appeal was not insisted upon by Mr Campbell.

[52] In essence, as outlined in Paragraph 5 of the Grounds of Appeal, the Appellant's submissions were to the effect that the Reporter has erred in law et separatim acted unreasonably and has taken into account an irrelevant consideration.

[53] There was no separate point taken in relation to natural justice.

 

The Appellant's Productions

[54] It might be helpful to note at this stage that the Appellant lodged various productions in support of the appeal, namely:-

6/1 Copy of Highland Council Refusal of Planning Permission dated 1 October 2003

6/2 Precognition of Dr Andrew Bullmore dated November 2004

6/3 WHO Guidelines - Executive Summary

6/4 Planning Advice Note PAN 45 (as revised 2002)

6/5 Paragraph 52 of Scottish Planning Policy SPP1

6/6 Planning Advice Note PAN 56

6/7 British Standard 8223

6/8 ETSU Report - ETSU-R-97

6/9 Extract from Dounreay Windfarm Environmental Statement prepared for Appellant dated April 2002 (Chapters 6 and 9)

6/10 Extract from WHO Guidelines - pp 55-56 and pp 63-65

6/11 3 Diagrams prepared by the Appellant demonstrating the Reporter's calculation error in relation to visual impact

6/12 NPPG6: Renewable Energy Developments (November 2000)

6/13 Circular 10/1999: Planning and Noise

6/14 Extracts from Report to the Secretary of State for Trade and Industry

by C A Richardson, Inspector, dated 13 May 2005 on the application by NPower Renewables Ltd for the Construction and Operation of an Onshore 78MW windfarm at Little Cheyne Court, Walland Marsh, Kent - paras 183-193, 319, 467, 468 and 477

6/15 Copy letter from Jim Campbell, Head of Energy Resources

Development Unit, DTI to Simon Wells, Company Secretary, NPower Renewables Ltd 18 October 2005

6/16 Extract from Office of the Deputy Prime Minister, Planning Policy Statement 22: Renewable Energy - para 22

6/17 Extract from the Planning Policy Wales, Technical Advice Note 8: Planning for Renewable Energy - Annex C paras 2.1- 2.40.

 

The Appellant's Productions 6/9 and 6/11

[55] It might also be helpful, for ease of reference, to mention some features of Productions 6/9 and 6/11.

[56] Production 6/9 is the Environmental Statement (the "ES") prepared by the Appellant. It contains inter alia a number of visualisations from various viewpoints.

[57] Production 6/11 consists of "3 diagrams prepared by the Appellant demonstrating the Reporter's calculation error in relation to visual impact". Figure 1 is a profile of the view 700 m away on flat ground using 93 m turbines. Figure 2 is a profile of the view 700 m away on flat ground and turbine tip at 12 degrees. Figure 3 is a profile of the view 614 m away, on sloping ground (8m and over 614m) and 93m turbines.

[58] As appears from Figure 1, the vertical angle of view taken from ground level to the highest point of a rotating turbine blade (93 metres above ground level) is in fact 7.6 degrees at 700 metre distance. The Reporter, in the second-last sentence of paragraph 5.9, incorrectly calculates this angle as nearly 12 degrees.

[59] As appears from Figure 2, if the vertical angle of view taken from ground level to the highest point of a rotating blade was 12 degrees, a corresponding turbine would have to be 148.3 metres high (to blade tip) at 700 metre distance.

 

The Appellant's Submissions in relation to Visual Impacts

[60] In relation to Visual Impacts, Mr Campbell referred in particular to paragraphs 5.3 to 5.10 of the Decision letter which I have set out above.

[61] Essentially the appeal was based on the error in the angle which had been calculated by the reporter. The angle referred to (in the second-last sentence of paragraph 5.9) was wrong. The correct angle was considerably lower. It was a significant error, Mr Campbell submitted, going to the nub of the decision relating to visual impact and dominance.

[62] There was, however, no error in the figure of 13.3 % or the other matters which are mentioned in the following sentence (the last sentence) of paragraph 5.9.

[63] There were various photographs placed before the Reporter. Amon Sul is viewpoint 10 in the Environmental Statement (the "ES") which is Production 6/9.

[64] It was a matter of agreement that there was an error and that the Reporter has exaggerated the angle of view when he states it to be of nearly 12 degrees to the slightly sloping ground.

[65] The nature and extent of the exaggeration have been illustrated in the diagrams which now form part of Production 6/11 of Process. The correct angle is not 12 degrees. It is 7.6 degrees. Unfortunately the calculations were prepared by the Reporter after the inquiry - and there was no opportunity to challenge them.

[66] The main reason for refusal was that the turbines would dominate the view from the most affected house - to an extent that would impact markedly.

[67] The application of 12 degree in the Reporters' imagination or in his mind's eye would give a different impression. It operates to artificially increase the perceived dominance of the windfarm.

[68] Mr Campbell submitted that the Appellant should be considered entitled to a fresh judgment a fresh decision.

[69] It is well accepted that that is the most the Appellant is entitled to. All the court can do is to set the decision aside and the matter would be remitted back.

[70] Mr Campbell accepted that there is other material mentioned in the decision letter and before the reporter which could justify the same conclusion but as matters stand it is an unfair or unsatisfactory end product. It is an unsatisfactory decision on what on any view is an important aspect of the appeal. It is critically important that the losing party considers that the process itself is fair and just and satisfactory. It is doubtful if that can be said at present.

[71] Mr Campbell did not suggest that a different conclusion would necessarily follow but it would be clear that there had been no contribution to it from the erroneous calculation as to the angle of view.

[72] All the court can do is assess the matter by the reasoning given by the reporter and in particular in paragraphs 5.9 and 5.10.

[73] As matters stand, when the Reporter was considering the acceptability of the development it is apparent that he considered it relevant and helpful to calculate the relevant angle of view. He devotes a passage in his reasoning to tell us the result. It is reasonable to proceed on the basis that he regarded it as a relevant factor.

[74] So whatever else he says about percentage gradient, scaling up and scaling down and the impression created by the visualisations he also says he understood the angle of view to be 12 degrees. This played at least a part in his overall conclusion as to unacceptable dominance.

[75] It may be said by others that the Reporter got other items right and that this is simply a miscalculation which did not influence the reporter's judgment. Mr Campbell invited me not to accept that.

[76] This is a case where the turbines do not actually exist. You cannot go and see and judge. You have to try to imagine or visualise. Essentially it is a matter of judgement. It is not like measuring distance wrongly but you have actually been to see it. That is completely different.

[77] One cannot conclude that the Reporter was envisaging the correct angle.

[78] He had the advantage of visualisation and it may be said that is an important step and that the angle is only a help. But that is an erroneous view.

[79] The error taints or pollutes the whole process of his reasoning. It is not an irrelevant error of no materiality to the decision submitted Mr Campbell.

[80] No issue was taken by the Respondents in relation to any of the authorities mentioned by Mr Campbell.

[81] Mr Campbell referred me to Secretary of State for Employment v ASLEV [1972] 2 QB 455 at page 457 and in particular Lord Denning MR at pages 492 to 493. We are not in the realms of the court interfering in the merits of the decision. If there is a plain misdirection in fact it is open to the court to interfere.

[82] Mr Campbell also referred me to R (Alconbury Developments Ltd) v The Secretary of State for the Environment [2003] 2 AC 295 in particular at paragraph 53. It has to be an error that is plain or patent on the face of the decision, but where the error is a plain one or an obvious one then the courts are willing to interfere. The reason for the limitation is pragmatic policy.

[83] Mr Campbell also referred to Elmbridge Borough Council v Secretary of State for the Environment 1980 39 P. & C.R. at 543 and in particular at 547 to 548.

[84] Mr Campbell submitted that in the present case the error was not "an obvious silly mistake".

[85] In Elmbridge parties knew that the decision taker knew the distance. It may be said by others that the same applies here but that would not be well founded. There are distinguishing features.

[86] Elmbridge was a case where the inspector had visited the site and had seen the actual distance between the existing property and the proposed new plant. It is entirely probable that the use of the wrong scale created no doubt in his mind when reaching his conclusion. That was not the position in the present case submitted Mr Campbell.

[87] Detailed reference was made to Simplex GE (Holdings) v Secretary of State for Environment 1989 57 P. & C.R. 304 at pages 319 to 329.

[88] The reporter's decision would not be free from any suspicion of adverse influence.

[89] However inconvenient it might be the decision should be quashed even if there is a real chance that the result might be the same (Simplex at page 325).

[90] In the present case the angle of view was "a consideration". It was not "an insignificant matter". It was not "insubstantial". There is no burden on the Appellant.

[91] In the present case visual impact was the main issue. In paragraph 5.18 the Reporter states that noise matters "reinforce the conclusions on visual impacts". In paragraph 5.25 he refers to "visual impacts and, albeit with less certainty, noise impacts". Noise was not a stand alone reason for refusal submitted Mr Campbell.

[92] Under reference to Simplex (particularly at pages 326 to 328) Mr Campbell invited me to look at the matter realistically and with justice.

[93] What it amounts to, suggested Mr Campbell, is that an error on a substantial issue renders the decision invalid unless it is quite clear that because of some other reason or reasons, unaffected by the error, the decision-maker would have been bound to come to precisely the same conclusion.

[94] If there is a whole set of reasons and one of them is bad in law it will not justify quashing the decision if the court is satisfied that the other reasons would inevitably lead to the same conclusion. That, said Mr Campbell, would just become a waste of time.

[95] Reference was also made to Campbell v City of Edinburgh 1999 SLT 1009 and in particular at pages 1009 D-F, H-I and 1021 B-K. In that case Lord Osborne did not have the benefit of the reference to Simplex. However, Mr Campbell suggested that Lord Osborne adopted more or less the same general approach. The court has a residual discretion. However, insofar as Lord Osborne applied a lower test than in Simplex, the approach of the Court of Appeal was to be preferred.

[96] In the present case there was no dispute that in principle Mr Campbell's suggested approach, based on Simplex was the correct one.

[97] The central dispute was how that approach fell to be applied to the facts of the present case.

[98] Mr Campbell, for the Appellant, submitted that in relation to visual impacts the overall result was as follows:-

1. That the error in the second-last sentence of paragraph 5.9 (as to the angle of view being nearly 12 degrees) did go to a substantial matter, indeed a critical matter, upon which the decision turned; and

2. That it ought not to be concluded that without the error the result would necessarily have been the same (because of some reason other than visual impact).

[99] The only other reason for refusal was that of noise but that was a secondary, albeit supportive, reason of a less clear cut nature.

[100] In any event, consideration by the Reporter on the question of noise was flawed.

[101] In short, the Appellant's primary submission was that the error in the second-last sentence of paragraph 5.9 would justify quashing the decision.

 

The Position of the Scottish Ministers

[102] The Answers for the Scottish Ministers are No. 8 of Process.

[103] In summary, the Scottish Ministers dispute the Appellant's Grounds of Appeal in relation to both landscape and visual impacts and noise impacts.

 

Submissions for the Scottish Ministers - General

[104] Ms Crawford invited me to refuse the appeal and to uphold the Reporter's decision dated 3 March 2005.

[105] In her general remarks, Ms Crawford emphasised the importance of putting the Appellant's submissions in the context of Section 25 of the Town and Country Planning (Scotland) Act 1997.

[106] Section 25 provides that:-

"Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise."

[107] The relevant policies were set out in paragraph 2.6 of the Reporter's decision letter.

[108] The appeal related to "impact" - visual impact and noise impact - rather than actual levels and the reporter correctly identified the issues of "significant detriment" and "significant harm".

[109] By way of general background, Ms Crawford also reminded me of Wordie Property particularly at pages 347 - 348. She also referred me to Lord Grieve at page 364.

[110] Ms Crawford suggested that the court should not subject the reporter's decision to fine textual analysis. The decision letter was not to be construed as a statute or a conveyancing document. The decision letter requires to be read as a whole.

[111] The Reporter had identified the correct policies in paragraphs 2.9 and 2.10.

[112] In relation to the Grounds of Appeal, Ms Crawford's position was as follows.

 

Answers for First Respondents - Landscape and Visual Impacts

[113] In relation to landscape and visual impacts The Scottish Ministers contend that paragraphs 5.9 and 5.10 of the decision letter should be referred to for their whole terms. The calculations and comments were made on the basis of undisputed heights and distances. The calculations and comments followed upon evidence presented at the Inquiry. Reference was also made to paragraphs 5.3 and 5.4.

[114] The Scottish Ministers also contend that any error in the Reporter's calculation of the angle was not material to his conclusion that the houses in the immediate vicinity of the proposed windfarm would be adversely affected to an unacceptable extent. Reference was made to paragraph 5.10 and to the assessment of visual impacts in the Environmental Statement.

[115] The Scottish Ministers also referred to paragraphs 5.3, 5.4, 5.25, 5.31 and 5.32 of the decision letter. The Reporter concluded in paragraph 5.25 that there would be a "significant detriment to individual and community residential amenity from visual impacts". The proposal did not comply with Structure Policies G2, criteria 7 and 10 and E2, and with Local Plan Policies PP3. In addition, the proposal did not satisfy paragraph 22 of NPPG6.

 

Submissions for the Scottish Minister - Landscape and Visual Impacts

[116] In relation to landscape and visual impacts, Ms Crawford submitted that the central question which the reporter required to address was whether the proposed development accorded with the development plan.

[117] In doing so he required to look at the evidence and the submissions before him.

[118] The findings which he made were findings which he was properly entitled to make. For example in paragraphs 5.9 and 5.10 and 5.25.

[119] There is only one sentence which contains an admitted error - and that is in the second-last sentence of paragraph 5.9.

[120] In relation to the calculation of the angle of view it was accepted that there was an error. The correct angle is 7.6 degrees.

[121] It was also accepted that if the error was on a substantial issue or was material or was significant then that would render the decision of the Reporter invalid.

[122] In that event the Reporter would have acted ultra vires in the Wordie sense. He would have taken into account an irrelevant factor or, looking at the matter another way, he would not have taken into account a relevant factor.

[123] Ms Crawford took no issue with the series of authorities put before the court by the Appellant.

[124] She did however take issue with the Appellant, and disagreed strongly, in relation to the effect and the nature of the admitted error.

[125] Ms Crawford submitted that the error as to the angle of view was, for present purposes, neither material, nor substantial nor significant.

[126] It was not material to the issue of assessing the extent of visual impact which was the issue which the Reporter required to resolve. The error was "not productive of harm". It was an "innocuous defect". The calculation made by the Reporter was not in any way the foundation of, nor material to, the Reporter's finding that the turbines were in almost full view from the properties (paragraph 5.9 line 7) or the findings set out in paragraph 5.10 (particularly lines 8-10).

[127] The Reporter also had the benefit of site visits which he recorded in his Decision Letter (for example at paragraphs 5.3-5.4).

[128] He also had visualisations which he found most useful.

[129] His error did not taint his findings or conclusions. That was clear, submitted Ms Crawford, from paragraphs 5.9 and 5.10 of the decision letter.

[130] The turbines would be in almost full view from the properties. The Reporter was able to form a judgment about the developments. The slight drop in the ground would have made little difference.

[131] The Reporter was attempting to illustrate the position in the last two sentences of paragraph 5.9. The second-last sentence contains an error but the last sentence is correct. The Reporter does not rely on the error in any shape or form and the calculation is based on correct "raw data".

[132] Mr Campbell for the Appellant accepted that the last sentence of paragraph 5.9 was accurate.

[133] It was important to note that the Reporter's error in calculation was based on correct raw data and that the last sentence of paragraph 5.9 was correct.

[134] The Reporter has had regard to the visualisations.

[135] It was difficult to see, submitted Ms Crawford, how the Reporter's findings in paragraph 5.10 are in any way affected by the calculation of the angle of view.

[136] It was even more difficult to see that error carried forward to paragraph 5.25 which was the critical question.

[137] The calculation of the angle of view was not in any way material to the conclusion reached in paragraph 5.25.

[137] To suggest otherwise would be to subject the decision letter to a fine textual analysis. To construe it line by line, as one might do with a statute or a conveyancing document, would be inappropriate.

[138] While it is accepted that there is an error in relation to the calculated angle of view, that error is not material and does not render the decision letter invalid.

[139] In summary, in relation to visual impact, Ms Crawford submitted that the Appellant's arguments should be rejected.

 

The Position of the Highland Council

[140] The Answers for the Highland Council are No. 10 of Process.

[141] The Council challenged the Appellant's Grounds of Appeal in relation to both headings - along similar lines to the Scottish Ministers.

 

Answers for the Highland Council - Landscape and Visual Impacts

[142] In relation to landscape and visual impacts, the Highland Council refer to the decision letter for its full terms. They contend that the Reporter's "calculation" is illustrative only, and not determinative of the visibility of the proposed development, nor of his conclusions upon the impact of that visibility.

[143] In any event, the Council maintain, the Reporter does not rely upon his calculation as determinative of his conclusion that the landscape impact and visual impact upon the nearest neighbours of the proposed development would be adverse.

[144] The Council also refer to paragraph 5.10.

[145] The Council suggests that that wording is inconsistent with any conclusion other than that the visual impact of the proposed development would be unacceptable as regards its nearest neighbours.

[146] The Council maintains that the Reporter has conducted a proper balancing exercise, taking into account the public interest, the weight of national and local policy, the effect on individual interests, and the submissions of parties, and has arrived at a proper and rational conclusion, properly founded upon relevant legal and planning considerations.

 

The Submissions for The Highland Council - the Second Respondents

[147] Mr John D Campbell QC, for the Highland Council, also took no issue with the statement of the law given by Mr Colin Campbell QC (for the Appellant).

[148] The textual approach adopted by the Appellant was not the proper one. Matters required to be seen in the context of section 25.

[148] The Reporter's approach was the correct one.

[150] The Reporter draws matters together in paragraphs 5.24 onwards under the heading of "Assessment under Section 25, taking into account foregoing conclusions".

[151] Mr Campbell also referred me to Production 6/12 National Planning Policy Guideline (NPPG) 6 which is dated November 2000 and in particular to paragraph 22 which is set out in paragraph 2.9 of the Reporter's decision.

[152] Mr Campbell adopted the submissions made by Ms Crawford.

[153] I now turn to the parties' submissions in relation to noise impacts.

 

Noise Impacts
Productions on Noise Impact.
[154]
At the outset, I should record that counsel for the parties referred me to the Productions relating to noise impacts in some detail.

[155] The main documents referred to included:-

1. Planning Advice Note PAN 45 (Revised January 2002) (Production 6/4) paragraphs 29 and 65, Figure 6, paragraphs 66, 67, 68, and Figure 7;

2. Planning Advice Notice PAN56 (Production No 6/6) at page 10 of 16;

3. ETSU-R-97 (Production No 6/8) and in particular the Introduction, paragraphs 1, 5, 9, 11, 18 to 22, 26, Figure 4 (on page 49) and page 54 (second paragraph); and

4. The WHO Guidelines for Community Noise (Production No 6/10) Table 4.1.

[156] Against that background, I turn to the Appellant's position.

 

The Appellant's Position

The Grounds of Appeal - Noise Impacts

[157] The Appellant's position is very helpfully outlined in paragraphs 6 to 8 of the Grounds of Appeal as follows:-

"6. The Reporter dealt with this issue at paragraphs 5.11 to 5.18 inclusive. In its submissions on Noise impacts (see e.g. paragraph 4.1.7 of the Reporter's letter), the Appellant relied upon the assessment methodology in report ETSU-R-97 "The Assessment and Rating of Noise from Windfarms" by the Energy Technology Support Unit, which was before the Reporter. This report is cited in Planning Advice Note (PAN) 45: Renewable Energy Technologies (revised 2002) at paragraph 68 as presenting "a series of recommendations that can be regarded as relevant guidance on good practice". The Appellant's Environmental Statement dealt with this issue in detail in Chapter 9.

 

7. At paragraph 5.18 of his letter, the Reporter concluded:-

"Whilst I do not find matters of noise impact on residential amenity so clear-cut as the significance of visual impacts, there are significant enough unfavourable or unresolved matters to reinforce the conclusions on visual impacts."

In his assessment of noise impacts, however, the Reporter erred in the following ways (as set out by the Appellant in paragraph 8 of the Grounds of Appeal) namely:-

 

(i) The guidance in Figure 7 in PAN 45 is taken from the ETSU report. The eighth bullet point in Figure 7 states:

'Noise from the wind farm should he limited to 5dB(A) above background for both day and night time, remembering that the background level of each period may he different'

In paragraph 5.15 of his letter, where he considers that the ETSU report is inadequate for the present case, the Reporter suggests that the Appellant's 'noise immission curves which I have accepted as reliable suggest that night-time background noise levels at around 6m/s or 7m/s, with very little contribution from the sea, would have to be remarkably low for there to be a difference of above 5dB(A); but it is not clear that such conditions could not occur too often to be ignored'.

However, precisely because of this inherent variability in background noise levels, the assessment methodology of the ETSU report requires that a best-fit curve be fitted through the average of the measured background noise data at each wind speed, and that this averaged background noise curve should be used for assessment purposes. Since this curve is based upon the average levels, it is plain that for approximately half of the time the background noise levels will be higher than the derived average level, while for the remaining half of the time the background noise levels will be lower. Thus the noise limits set in accordance with the ETSU report allow the windfarm noise level to be up to 5dB(A) above the average measured background noise curve. The Reporter's suggestion that a calm sea might result in a difference between background noise levels and windfarm noise levels of more than 5dB(A), is merely one factor that the ETSU methodology already accounts for.

 

(ii) Moreover, the ETSU report is based upon noise limits in quiet areas using absolute levels rather than levels relative to background noise. A principal reason for this is that windfarms are often sited in quiet rural areas. To set limits relative to quiet rural background noise levels would overly restrict the potential for on-shore wind energy development (see the fifth bullet point in Figure 7 of PAN 45).

 

(iii) The twelfth bullet point in Figure 7 in PAN 45 provides that '[i]n low noise environments the day-time level of the L A90, 10min of the wind farm noise should be limited to an absolute level within the range of 35-40dB(A).' Thus the ETSU report would prima facie justify a windfarm noise level of 40dB(A) where the background noise level was only say 25dB(A). There is therefore no justification for the Reporter's apparent reliance on a relative margin of only 5dB(A). This 'margin' was not canvassed in evidence at the public local inquiry.

 

(iv) The Reporter has erred in preferring to use the World Health Organisation ("WHO") Guidelines for Community Noise rather than the ETSU report. It is the latter document which PAN 45 (which post-dates the latest version of the WHO Guidelines) recommends as suitable. In any event, the Report has misconstrued the WHO Guidelines for Community Noise. In particular, the WHO Guidelines rely on absolute noise limits based on the onset of identifiable effects, and not on a recommendation of 5dB(A) above background noise levels (cp. The last sentence of paragraph 5.17 of the Reporter's letter). With regard to the setting of night-time absolute noise limits, the ETSU report at paragraph 23 of the Executive Summary states: '[t]he Noise Working Group recommends that the fixed limit for night-time is 43dB(A)L90. This limit is derived from the 35dB(A) sleep disturbance criteria referred to in Planning Policy Guidance Note 24 (PPG24)' [which is the same night-time noise limit referred to in paragraph 5 of Annex 2 of PAN 56, and bullet point 10 in Figure 7 of PAN 45]. Despite any subsequent changes in updated WHO Guidelines in respect of noise levels inside bedrooms for the onset of sleep effects (the effect of which on external noise levels is in any event limited, as discussed in Dr A J Bullmore's precognition at paragraphs 5.38 to 5.42), the recommended night-time noise limit in PAN 45, Planning Policy Guidance 24:Planning and noise and PAN 56 remains unchanged, as does that of BS8233 "Sound insulation and noise reduction for buildings", which is also cited in paragraph 37 of PAN 56 as providing '[g]eneral guidance on acceptable noise levels within buildings...'. The basis for the ETSU report's recommended night-time noise limit therefore remains unchanged. As is made clear in the ETSU report, the changes being proposed in WHO Guidelines in respect of internal noise levels were well known to the authors of the ETSU report."

[158] Paragraph 9 of the Appellant's Ground of Appeal, Mr Campbell indicated, was not being insisted upon.

[159] For the reasons outlined in the Grounds of Appeal, the Appellant contended that the Reporter's decision dated 3rd March 2005 should be quashed.

 

The Appellant's Submission on Noise Impacts
[160]
Mr Campbell developed the Appellant's Grounds of Appeal as follows.

[161] Noise impact was dealt with by the Reporter in his decision letter at paragraphs 5.11 to 5.18 which I have set out above.

[162] The Reporter accepted (in paragraph 5.11) that the likely levels would be as stated in paragraph 4.1.8.

[163] The critical issue was not how noisy the windfarm was going to be but the acceptability or otherwise of the noise on the nearest dwelling houses.

[164] The essential findings were in paragraphs 5.14 and 5.15.

[165] At the end of paragraph 5.15, the Reporter states

"The appellants' noise immission curves which I have accepted as reliable suggest that night-time background noise levels at around 6m/s or 7m/s, with very little contribution from the sea, would have to be remarkably low for there to be a difference of above 5dB(A); but it is not clear that such conditions could not occur too often to be ignored."

[166] The Reporter had a difference of 5dB(A) in mind.

[167] At the beginning of paragraph 5.17 the Reporter states that whilst the use of ETSU-R-97 is commended in PAN 45 "it preceded advice from the World Health Organisation (WHO) to use more stringent lower limits in order to avoid disturbance and ensure restful sleep".

[168] At the end of paragraph 5.17 the Reporter refers to meeting "the 5dB(A) exceedence criterion recommended by the WHO".

[169] Mr Campbell submitted that something more than the standard model seems to be used by the Reporter.

[170] The impression is that the reporter is concerned that the "standard assessment model" and guidelines may not be appropriate for a site where there may sometimes be particularly quiet periods in terms of background noise with the result that the noise from the turbines might be significantly intrusive when there is a low ambient or background level.

[171] Mr Campbell developed his argument under reference to passages from the productions.

[172] In particular, Mr Campbell referred me to Planning Advice Note PAN No 45 (Production 6/4) paragraphs 29, 65, 66, 67 and 68. Figure 7 (on pages 22 to 23 of Production 6/4) attempts to summarise the position and is headed "Recommended Good Practice on Controlling Noise from Wind Turbines". Paragraph 68 (of Production 6/4) refers to Production 6/8.

[173] The executive summary of ETSU-R-97 (Production 6/8) sets out the main points which Mr Campbell wished to refer to including paragraphs 1, 5, 9, 11, 18 to 22, and 26.

[174] A definition of "LA90 T" is given in Production 6/6 (on page 10 of 16).

[175] Mr Campbell pointed out that, in general terms, the development of windfarms is a government objective. There is a raft of materials encouraging development. There is a balance to be struck bearing in mind the interests of the community and the people affected by the development.

[176] Significantly, in environments with low noise levels the 5dB(A) level is put to one side in favour of an absolute.

[177] At a situation of low noise the guidance recognises that the noise from the turbine could be significantly in excess of 5dB(A) above.

[178] In this case the Reporter says that on quiet occasions he anticipates that the windfarms would be significantly intrusive. However, the guidance allows for more than 5dB(A) above background noise in that situation.

[178] The Reporter appeared to be saying that he has used the 5dB(A) exceedence criteria for all situations. That, submitted Mr Campbell, was an error.

[180] In outline, Mr Campbell submitted that the Reporter has got it into his mind that the there may be times when the background level is atypically low and that the standard model does not cope. But that, submitted Mr Campbell was wrong. The standard model does take such factors into account.

[181] The measurements are based on average levels. For much of the time the actual background level will be either above or below.

[182] The Reporter's errors might be illustrated this way - under reference to the graphs which are shown in paragraph 26 on page ix of ETSU-R-97 (Production 6/8).

[183] Firstly, the lines on the graphs do not continue parallel to one another (like "rail tracks") throughout their length all the way down to the lowest background levels. There is a plateau.

[184] Secondly, the lines shown are based on average (not highest or lowest) levels of background noise.

[185] In paragraph 5.15 of his decision letter the Reporter is talking about 5dB(A) and he seems to take the view that there will be occasions when the noise will be 5dB(A) above the actual background level.

[186] He might have been entitled to say I don't like the guidance and therefore I will not apply it but instead he suggests that the guidance does not cope.

[187] The methodology illustrated in figure 4 on page 49 of Production 6/8 involves (1) an averaging process and (2) a fixed level at the left hand side of the graph.