Summary: Mr X complained about the way the Council handled complaints about noise from a nearby wind farm. There was no fault in the way the Council dealt with the complaints.

The complaint

1. Mr X complained the Council:
• had failed to investigate individual noise complaints relating to a nearby wind farm, deciding instead to undertake a “compliance role; and
• failed to use the correct procedures, and failed to consult fully independent acousticians when considering whether the wind farm was compliant with a planning condition about noise.
2. Mr X says the noise from the wind farm has affected the health of local residents and destroyed the tranquillity of the area. He says he finds it upsetting to hear the rumble and “whoomping” from the turbines when in his garden or walking in the village.

Back to top

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)

Back to top

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. I considered their comments before making a final decision.

Back to top

What I found

Relevant law and guidance

6. Councils should approve planning applications that accord with their local development plan, unless other material planning considerations indicate they should not do so. The negative impact on neighbouring amenity, such as noise, would be a material planning consideration.
7. Where a council refuses an application, the applicant can appeal to the planning inspector. The planning inspector acts on behalf of the responsible Government minister. The planning inspector may decide to grant planning permission.
8. 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.
9. 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 sets out a detailed methodology 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 daytime and night-time noise.
10. In addition to planning controls, councils have other powers for controlling noise nuisance. Where councils consider there is serious harm caused by noise, vibration or dust pollution, a notice to stop or control a nuisance can be served using powers under the Environmental Health Act 1990.

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 this Council (the planning authority) should monitor compliance of the noise condition.
12. The planning inspector noted the difficulty of assessing the impact of low frequency excessive amplitude modulation noise (EAM) and explicitly stated this should be considered using statutory noise nuisance legislation. Another council, in whose area Mr X lives, is responsible for investigating noise nuisance. That council’s actions will be considered in a separate decision statement.
13. Mr X says local residents have made a large number of complaints, mostly about EAM noise.
14. The Council said initially, noise measurements suggested the operational noise exceeded permitted levels in some locations during the daytime. The operator implemented a mitigation scheme and the Council was satisfied that, with the scheme in place, operational noise was compliant with the planning condition.
15. Subsequently, the operator made changes, which it said would mean noise levels would be within permitted limits without the need for the mitigation scheme measures. The Council asked the operator to undertake measurements at agreed locations to ensure the wind farm was in fact operating within permitted limits.
16. The operator asked a noise consultant, expert A, to undertake noise measurements. The Council asked another consultant, expert B, to scrutinise consultant A’s report. Both experts consulted with the other council involved and with a residents’ group. On the basis of expert A’s report, which was scrutinised by expert B, the Council decided the operator was complying with the planning condition about noise.
17. Mr X says the experts used were not properly independent because they had some affiliation to the wind industry.

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. The planning inspector considered the ETSU-R-97 guidance when deciding whether the noise from the wind farm was likely to be acceptable and when deciding on the specific planning condition necessary to ensure residents would not be subjected to “undue levels of noise”.
20. It is this Council’s responsibility to ensure the operator complies with that condition. It decided the operator was compliant. When deciding this it considered the views of residents, the other council and the independent experts.
21. The ETSU-R-97 guidance is not statutory guidance so I cannot say the Council was at fault if it did not follow the complaints process set out in that guidance.
22. The Council was satisfied that the information and analysis provided by expert A, and scrutinised by exert B, was sufficient for it to decide the operator was compliant with the planning condition. It was for the Council to judge whether expert B was sufficiently independent to properly scrutinise expert A’s report and in the absence of fault in the way it made its decision, I cannot comment on that judgement.
23. The Council followed the process we would expect when considering whether the operator was compliant with the planning condition and so I find no evidence of fault in the way it made its decision.
24. It is not the responsibility of this Council to investigate individual complaints about noise nuisance.

Back to top

Final decision

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

Back to top

Investigator's decision on behalf of the Ombudsman