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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) URL: http://www.bailii.org/scot/cases/ScotCS/2006/CSOH_131.html Cite as: [2006] ScotCS CSOH_131 |
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OUTER HOUSE, COURT OF SESSION [2006] CSOH 131 |
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OPINION OF LORD KINCLAVEN in the Appeal to the Court of Session under section 239
of the Town and Country Planning ( by CRE ENERGY LIMITED Appellant; against A decision of the Scottish Ministers by their Reporter W M H Patterson Esq. dated ญญญญญญญญญญญญญญญญญ________________ |
Appellant: C M
First Respondents:
Crawford; Office of the Solicitor to the Scottish Executive
Second Respondents:
J D
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,
[3] That application was refused by Highland Council.
[4] The Reporter refused an appeal.
[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.
[9] In the whole circumstances, and for the reasons outlined below, I have decided to refuse the appeal.
[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:-
ท The Statutory Provisions;
ท The Reporter's Decision;
ท The Appellant's Position - in General
ท Landscape and Visual Impacts
o The Appellant's position;
o The Position of the Scottish Ministers;
o The
Position of the
ท Noise Impacts
o The Appellant's position;
o The Position of the Scottish Ministers;
o The
Position of the
ท 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
(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
G2 Design for Sustainability
Proposed Developments will be assessed on the extent to which they: ...
[7] impact on individual and community residential amenity; ...
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:
ท
visual impact
ท
noise; ... and
ท
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.
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.
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."
The Decision Letter -
Consultation Responses on the Application
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.)
The Decision Letter - The
Reporter's Conclusions
"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
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
The Appellant's position - in General
[38] The Grounds of Appeal for
the Appellant were lodged on
[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.
[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.
[47] I shall deal with each aspect separately.
Landscape and Visual Impacts
The Appellant's Position
The Grounds of Appeal - Landscape
and Visual Impacts
"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.
[53] There was no separate point taken in relation to natural justice.
The Appellant's
Productions
6/1 Copy
of Highland Council Refusal of Planning Permission dated
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
6/15 Copy letter from Jim Campbell, Head of Energy Resources
Development Unit, DTI to Simon Wells,
Company Secretary, NPower Renewables Ltd
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
The Appellant's
Submissions in relation to Visual Impacts
[77] One cannot conclude that the Reporter was envisaging the correct angle.
[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.
[84] Mr Campbell submitted that in the present case the error was not "an obvious silly mistake".
[88] The reporter's decision would not be free from any suspicion of adverse influence.
[97] The central dispute was how that approach fell to be applied to the facts of the present case.
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).
[100] In any event, consideration by the Reporter on the question of noise was flawed.
The Position of the Scottish Ministers
[102] The Answers for the Scottish Ministers are No. 8 of Process.
Submissions for
the Scottish Ministers - General
[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.
[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
Submissions for the Scottish Minister
- Landscape and Visual Impacts
[117] In doing so he required to look at the evidence and the submissions before him.
[123] Ms Crawford took no issue with the series of authorities put before the court by the Appellant.
[128] He also had visualisations which he found most useful.
[132] Mr Campbell for the Appellant accepted that the last sentence of paragraph 5.9 was accurate.
[134] The Reporter has had regard to the visualisations.
The Position of the
[140] The Answers for the Highland Council are No. 10 of Process.
Answers for the
[144] The Council also refer to paragraph 5.10.
The Submissions
for The
[148] The Reporter's approach was the correct one.
[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
"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.
The Appellant's
Submission on Noise Impacts
[160] Mr Campbell developed the Appellant's
Grounds of Appeal as follows.
[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.
[169] Mr Campbell submitted that something more than the standard model seems to be used by the Reporter.
[171] Mr Campbell developed his argument under reference to passages from the productions.
[174] A definition of "LA90 T" is given in Production 6/6 (on page 10 of 16).
[184] Secondly, the lines shown are based on average (not highest or lowest) levels of background noise.