Stephen Tromans looks at the Court of Appeal decision on noise restrictions at wind farms
Last month’s case law column reported on the Court of Appeal decision in Hulme v Secretary of State for Communities and Local Government [2011] EWCA Civ 638. Readers may also have watched the BBC 2 documentary series Windfarm wars, and the proposal by Renewable Energy Systems (RES) for a wind farm at Den Brook in Devon.
One of the leading opponents was Mike Hulme, and it was his legal attack on planning permission given to RES that was the subject of the unsuccessful appeal to the Court of Appeal.
The challenge was made on nine grounds, with four relating to noise issues, and five to a variety of other issues. The noise grounds included that having recognised that a condition was required in order to control amplitude modulation (AM), or “blade swish”, defective conditions had been imposed, in that there was no sanction to ensure compliance with the objective.
The principal question was whether the conditions as drafted were capable of achieving the objective of preventing inappropriate aerodynamic noise levels. The secretary of state submitted that, properly understood and in context, the conditions did envisage an effective enforcement of acceptable AM noise levels. On appeal, Hulme argued that the conditions failed to provide the proper enforcement mechanism, identifying the following reasons:
- Absence of an enforcement mechanism Although condition 20 (of the planning consent) defined what constituted excessive AM and identified how and where it should be measured, it said nothing about what was to happen if the levels of noise were excessive. Condition 21 required that a scheme be adopted to enable the measurement of the AM noise levels so as to evaluate compliance with condition 20 and identify when they exceeded the permissible level. The scheme had to be approved by the local planning authority, and then applied as approved. But condition 21 had not envisaged that the scheme should be designed to provide a mechanism for enforcement of the condition 20 standard; its purpose was simply to ensure that the relevant AM could be properly measured to see whether or not it complied. If AM levels exceeded permitted levels, there was nothing that could be done about it.
- Condition 21 The appellant submitted that even if, contrary to the first argument, the scheme could incorporate an enforcement mechanism, once the developer could demonstrate compliance with condition 20, as agreed in writing by the local planning authority, the scheme then ceased to operate altogether. Thereafter the principles imposed by condition 20 could be ignored without any effective remedy.
Lord Justice Elias found on the second point that there was no doubt that condition 21 was not easy to interpret, but that it did not require that the scheme had to be implemented before the turbines could operate and that if there was compliance the scheme then terminated.
That would be implying a requirement that is not stated in the condition itself. It was never the intention that the scheme should terminate while there were still legitimate complaints to be assessed, and it did not have to be so construed.
That left the first question of whether it was possible to read into the conditions an obligation placed on the developers to comply with the requirements of condition 20. It plainly had been the intention that the standard set in condition 20 could be enforced in some way. However, condition 21 stated what the scheme is designed to do, namely to provide for the measurement of the AMs generated by the turbines and to evaluate compliance with condition 20.
Nothing was said at all about what was to happen if the evaluation demonstrated non-compliance. The clear intention was that the standard laid down in condition 20 should be met. It followed that there was an obligation on the developers to comply with the AM levels specified in condition 20 and that obligation would run for the duration of the planning permission. That obligation could be enforced by the planning authority in the normal way. Accordingly, the principal ground of appeal failed.
Noise, and especially AM, is currently a particularly problematic issue for wind farm projects. This decision demonstrates a pragmatic approach to what might be thought to be defective conditions, in order to make them work
