Summary: Mr X complained about noise from a nearby wind farm, which he says is upsetting and harmful to health. The Council was not at fault. It made appropriate enquiries but decided the noise did not amount to a statutory nuisance.

The complaint

1. Mr X complained about noise from a nearby wind farm, which he says has affected the health of local residents and destroyed the tranquillity of the area. He says it is upsetting to hear the rumble and “whoomping” from the turbines when in his garden or walking in the village.
2. He says if the Council had used the correct procedures it would have concluded the wind farm was not compliant with government guidance and a planning condition.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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

4. I spoke to Mr X and considered the information he provided. I also considered:
• the information the Council provided in response to my enquiries on a complaint by another local resident; and
• relevant law and guidance, as set out below.
5. Mr X and the Council had an opportunity to comment on my draft decision and I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Statutory noise nuisance

6. 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.
7. 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

8. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about decisions to refuse planning permission and may decide to grant permission for the development.
9. 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. The operator applied for permission for a wind farm on land situated in another council area. This was approved, on appeal, 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. Local residents complained about noise from the wind farm as soon as it became operational. The planning authority considered whether the operator was compliant with the planning condition. In the meantime, this Council investigated complaints from local residents. As part of that investigation, its officers made site visits, considered diary sheets, and installed noise monitoring equipment in certain locations. It decided the noise complained of did not amount to a statutory nuisance.
13. 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.
14. Council officers acknowledged there was evidence of excess amplitude modulation (EAM) noise. There is no agreed methodology for deciding whether EAM noise amounts to a statutory nuisance. This is ultimately a matter for the professional judgement of the environmental health officers.
15. Mr X said the Council should have used the complaints procedure in guidance issued by the Department of Trade and Industry, known as ETSU-R-97, which was issued in 1997. He says, if it had done so, it would have decided the wind farm was not compliant with the planning condition.
16. In commenting on my draft decision, the Council clarified that the ETSU-R-97 guidance states “the developer may be required, through a planning condition, to agree a noise rating and monitoring scheme with the local authority prior to operation of the development”. This was considered in developing the noise condition, which cover the appropriate procedure.
17. Mr X said residents are now taking legal action about the noise but this action is against the operator of the wind farm and not the Council so this does not prevent me from investigating or making findings on the complaint.

My findings

18. 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.
19. 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.
20. The Council has followed the decision-making process we would expect and so I find no fault in the way it made its decision.
21. The planning inspector considered the ETSU-R-97 guidance at the planning appeal. He acknowledged the difficulty of addressing EAM noise using statutory nuisance powers but concluded this was “the best means currently available of resolving this issue”. The planning inspector did not envisage the Council would apply the complaints process set out in the ETSU-R-97 guidance, and it is not statutory guidance, which means councils are not required to consider it. Therefore, I cannot conclude the Council was at fault for not following that process.

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Final decision

22. I have completed my investigation. I have not found evidence of fault.

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Investigator's decision on behalf of the Ombudsman