Summary: Mr X complained the Council failed to act following multiple reports about noise from a nearby wind farm. He says that as a result, he and his family have suffered from low frequency noise for several years. The Council is not at fault. It made appropriate enquiries but decided the noise did not amount to a statutory nuisance.

The complaint

1. Mr X complained the Council failed to take formal action against a nearby wind farm despite making around 250 reports about low frequency noise over a period of more than five years. He says the noise, referred to as excessive amplitude modulation (EAM) has caused health issues for himself and his family.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. I spoke to Mr X and considered the information he provided. I considered the Council’s replies to my enquiries, and relevant law and guidance, as set out below.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making my final decision.

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What I found

Relevant law and guidance

Statutory noise nuisance

7. Councils must investigate complaints about noise that could be a statutory nuisance. The council must decide whether the nuisance substantially interferes with the person’s enjoyment of their property or if it is likely to injure their health. When deciding this, the council should consider whether and how an ordinary person would be affected by the noise. If the council decides the noise amounts to a statutory nuisance it must act to stop the nuisance. Its powers are found in the Environmental Protection Act 1990.
8. Private individuals do not have to rely on councils to protect them from nuisance; they can take legal action to stop a nuisance if they are confident they have enough evidence to persuade a court to issue a notice.

Planning conditions

9. Councils or the planning inspector may impose planning conditions to make the development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards. The developer must demonstrate compliance with the planning condition to the satisfaction of the council.

Guidance on noise assessment for wind farms

10. The Department for Trade and Industry issued a report in 1997 on “The Assessment and rating of Noise from Wind Farms” (ETSU-R-97). This set out a detailed methods for noise assessment, including guidelines for permitted levels of noise. The permitted level depends on the type of noise and its level in relation to normal background noise levels. There are different limits on the permitted noise for day-time and night-time noise.

What happened

11. An application for a wind farm on land situated in another council area was approved by a planning inspector, subject to a condition about noise. The planning inspector stated the other council (the planning authority) should monitor compliance of the noise condition and this Council, which is where Mr X lives, should consider the impact of noise on residents using its statutory nuisance powers.
12. The planning inspector was guided by ETSU-R-97 when considering the potential impact of noise from a wind farm, which was and is still the most recent government guidance on this subject. The planning inspector thought the risk of excessive amplitude modulation (EAM) noise was low and recognised the limitations of statutory nuisance powers in addressing this but there was no other agreed way of assessing EAM and its impact on residents. There are still no agreed methods for these assessments.
13. Initially, noise measurements suggested the operational noise exceeded permitted levels in some locations during the day-time. The operator implemented a mitigation scheme and the planning authority was satisfied this would bring operational noise within relevant limits.
14. Whilst the planning authority was making those enquiries, this Council investigated a large number of noise complaints from its residents. Its officers made site visits, considered diary sheets completed by residents and, in some cases, it installed monitoring equipment to record the noise for later analysis.
15. An environmental health officer, who worked on the noise complaints until September 2015, considered the noise reports Mr X made and carried out an analysis of noise recordings from his property. He considered it was possible that there may be a statutory nuisance but advised Mr X it was not appropriate in his view to take enforcement action until the outcome of the planning authority’s enquiries was known. This was because if the operator was not compliance with the planning condition it could require the operator to modify its operation to reduce the noise levels, which is what happened. However, the changes the operator made did not have a significant impact on the EAM noise that Mr X and others were experiencing, so the Council continued to monitor and investigate these reports.
16. The operator then made changes to the blades on the turbines which it said would mean noise levels would be compliant with the planning condition without the need for the mitigation scheme measures. The planning authority asked the operator to demonstrate it was compliant with the condition. The operator instructed an expert to consider this, which took several months, and the expert’s findings were then scrutinised by the planning authority’s expert. This Council and the local residents’ group were consulted during the process. The planning authority ultimately decided the operator was compliant with the noise condition.
17. Alongside its involvement in assessing whether the operator was compliant with the planning condition, this Council continued to investigate noise reports for evidence of statutory nuisance. However, despite many reports of low frequency EAM noise, it decided this did not amount to a statutory nuisance.
18. In reaching its decision, it considered factors such as:
• the time of day the noise was experienced;
• the duration of the noise;
• the nature of the noise, in terms of its volume and characteristics; the frequency of the occurrence;
• requirements of the law, including whether the operator may have a defence to enforcement action;
• reasonableness of the land use (the operator had obtained planning consent and was compliant with the planning condition about noise); and
• the reasonableness of potential enforcement action, including its own enforcement policy.
19. Council officers acknowledged there was evidence of EAM noise. There is no agreed methodology for deciding whether EAN noise amounts to a statutory nuisance. This is ultimately a matter for the professional judgement of the environmental health officers.
20. This Council made a joint statement with the planning authority in July 2019 in which both stated their separate enquiries had concluded the noise experienced by residents did not amount to a statutory nuisance. In relation to EAM noise the report said:
• the mechanisms causing EAM noise were not known;
• the operator was complaint with the planning condition; and
• there was no agreed methodology or guidance for assessing it in cases where the operating was compliant.
21. The Councils concluded they “could not undertake further investigative or enforcement action under statutory nuisance procedure”.
22. In further statements, this Council confirmed it will consider all noise reports and take action in relation to any new issues that arise, and that if new reports or guidance about low frequency noise are issued, it will consider whether further action is needed.

Complaints handling

23. Due to the volume of noise reports and complaints about noise the Council received it was not able to respond to all of them individually. After carrying out some initial investigations and responding to them individually, it moved to consulting with the residents association and attending their committee meetings to share updates and information.
24. This did cause an issue for Mr X when he decided to complain to us because he could not easily demonstrate the Council’s own complaints process was exhausted. In response to his concerns the Council did log a formal complaint and send him written confirmation that it considered it had responded to his concerns at stage 1 and 2 of its complaints process.

My findings

25. We are not an appeal body. Our role is to review the process by which decisions are made. Where we find fault in the decision-making process, we decide whether it caused an injustice to the complainant. To do this, we need evidence to show that, but for the fault, the outcome would have been different.
26. Before it made its decision, the Council took account of:
• its powers under the Environmental Health Act 1990;
• the other Council’s planning powers to control noise on the site;
• complaints from residents and the information they provided;
• the data collected by noise experts; and
• relevant guidance on controlling EAM noise.
27. The Council has followed the decision-making process we would expect and so I find no fault in the way it made its decision.

Complaints handling

28. We would usually expect a council to respond to complaints in writing and address all the issues the complainant raised. However, in the particular circumstances of this case, I consider it was satisfactory for the Council to deal with the noise reports as a group rather than responding to each resident individually. I am satisfied from the records I have seen that it did respond to Mr X’s concerns and when he stated he wished to complain to us it provided a statement confirming its complaints process was complete. I am also satisfied it took appropriate steps to communicate with local residents throughout using the residents group. The Council was not at fault.

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Final decision

29. I have completed my investigation as I have not found fault in the way the Council made its decision.

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Investigator's decision on behalf of the Ombudsman