Colleen Theron and Deirdre Lyons detail a Court of Appeal decision imposing a new obligation to ensure acceptable noise levels from wind turbines
The Court of Appeal (CA) has upheld the decision of an inspector concerning appropriate “amplitude modulation” (AM) or “blade swish” noise levels in Hulme v Secretary of State for Communities and Local Government [2011] EWCA Civ 638.
Renewable Energy Systems (RES), a global wind-farm developer, initially applied in 2004, to construct a wind farm in Devon. The proposed wind farm in the Den Brook valley, near North Twarton, was to consist of nine three-bladed horizontal access wind turbines, each 120 metres high, plus electricity transformers, access tracks, train hardstandings, a control building, a substation, a meteorological mast, and a temporary construction compound.
The appellant, Mr Hulme, owned land near the appeal site and originally applied for an order quashing the granting of planning permission. The battle between the parties was the subject of the recent television series Windfarm wars on BBC2.
In August 2010, following a renewed oral hearing, the High Court dismissed the appellant’s challenge. The appellant sought a further appeal.
The CA subsequently allowed a challenge to alleged defectively drafted conditions dealing with the aerodynamic noise caused by passage of air over the wind turbine blades. The CA accepted the evidence brought before the inquiry: that excessive AM noise could interfere with local residents’ sleep.
The principal issue was whether the conditions as drafted were capable of securing the objective of preventing inappropriate AM noise levels.
“There is no doubt, as indeed all counsel agree, that condition 21 is not easy to interpret. The meaning of the last sentence ... is particularly opaque,” said Lord Justice Elias.
The CA decided that it was the inspector’s clear intention to impose an obligation to comply with defined AM limits and, as a matter of construction, that the obligation could be treated as implicit in the language of the conditions.
Consequently, an enforceable obligation was imposed on RES to keep noise levels to an acceptable level throughout the 25-year duration of the planning permission. The appeal was therefore dismissed.
Applications for wind farms are divisive. While Mr Hulme was unable to block construction of the wind farm, the noise conditions that have been imposed will set a new standard for power companies.
