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Cornwall Council (17 005 480)

Category : Planning > Enforcement

Decision : Not upheld

Decision date : 28 Mar 2018

The Ombudsman's final decision:

Summary: There is no evidence of fault in how the Council made it decision that an appropriate noise compliance assessment report had been submitted to discharge a planning condition for a wind turbine.

The complaint

  1. Mr X complains that the Council has wrongly decided that a noise compliance assessment for a wind turbine at a neighbouring property is sufficient to discharge a condition of its planning permission. As a result Mr X and his family are being caused noise nuisance from the wind turbine.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
  2. 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

  1. I have:
    • Considered the complaint and the information provided by Mr X;
    • Made enquiries of the Council and considered the information provided;
    • Invited Mr X and the Council to comment on the draft decision.

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What I found

  1. The Council granted planning permission for a wind turbine in 2014 subject to conditions. One condition provided that the wind turbine should not be operated until the applicant had submitted a monitoring assessment of noise levels during the six months following connection and full operation of the turbine.
  2. In 2014 the applicant submitted details for the condition to be discharged. The Council advised the applicant that it could not discharge the conditions as it required a copy of the noise compliance assessment carried out during the first six months of the wind turbine’s connection and full operation.
  3. A few months after the wind turbine became operational Mr X contacted the Council to report that he was being disturbed by noise from the wind turbine. The Council requested the applicant to submit the monitoring required.
  4. The applicant’s acoustic consultants submitted a noise compliance assessment in November 2015. Mr X commented on the assessment as he considered it was flawed. In response to Mr X’s comments the Council requested further information from the consultants. The acoustic consultants submitted a further assessment in February 2016. Mr X raised concerns with how the assessment had been carried out and the Council sought further information from the consultant. The consultant submitted a further noise compliance assessment.
  5. In July 2016 Mr X made further comments on the noise compliance assessment. Mr X:
    • Questioned the accuracy of the tonal analysis;
    • Questioned the position of the sound level meters;
    • Considered the assessment had not been carried out in accordance with the Institute of Acoustics (IoA) supplementary guidance note 5 :post completion measurements.
    • Said the assessment did not comply with the methodology agreed when discharging the planning conditions;
    • Said the background noise measurements were of insufficient quality as not present for both receptors;
    • Recommended that the survey be carried out again over a sufficient duration to capture enough valid data points for the -/+45 degree downwind direction.
  6. In December 2016, the consultant provided a further report responding to the points raised by Mr X. Regarding the deviation for the approved methodology the consultants said that this was because the planning condition was written before the release of IOA supplementary guidance so it did not fully reflect good practice.
  7. The Council considered the consultant’s report demonstrated compliance with the planning condition so it could be discharged. The Council informed Mr X that it had discharged the condition.
  8. Mr X made a complaint to the Council that it had not provided a proper technical response to his comments on the noise compliance assessment and that it had not checked the technical validity of the report. The Council considered the complaint through its two stage complaints procedure. The Council acknowledged that it should have informed Mr X that it would not provide a response to his comments and apologised for not doing so. The Council did not uphold Mr X’s complaint about not carrying out its own technical analysis of the report.
  9. In making his complaint to the Ombudsman Mr X has said the Council is at fault as it has refused to carry out any checks of technical validity on the report, refused to provide a technical response to him and demonstrate how it came to the decision.
  10. In response to my enquiries, the Council has said officers are not acoustic consultants and it is not the Council’s role to replicate the entire acoustic assessment. As part of their planning consultation role, environmental protection officers receive many reports from consultants and experience informs how they are assessed. The Council will scrutinise reports but it will not fully check all calculations in reports submitted by consultants who consistently submit high quality reports and who are members of the IoA as it is considers that a professional, qualified consultant would check their work competently. The Council considers the consultant who submitted the noise compliance assessment is qualified and submit consistently high quality reports.
  11. The Council considers that the consultant’s report of December 2016 provided a reasonable explanation to the points raised by Mr X and as to the deviation from the condition. More recent guidance was available than when the condition was imposed in 2014 so it was considered the deviation was in accordance with current good practice and guidelines.
  12. In relation to the increase in downwind direction from +/- 45 degrees to 80 degrees, the Council said it had accepted this approach in other cases where it was proving difficult to get sufficient data from downwind directions being +/- 45 degrees. It felt that having extensive periods of monitoring to try and get these wind directions was likely to be disproportionate to the situation. 

My assessment

  1. It is not our role come to our own view on the technical merits of the consultant’s report or adjudicate between differing professional judgments. Our role is to consider the process by which the Council made its decision to discharge the condition. We could only question the merits of the Council’s decision if there was fault in the process which could call into question the decision.
  2. There is no evidence of fault in how the Council discharged the condition. The Council is not at fault for not carrying out its own technical analysis of the report. It is reasonable for a council to rely on an expert report when it does not have its own expertise in the area in question. The Council did rely on the information provided by the applicant’s consultant. But it did not accept the consultant’s report without question. The evidence shows that the Council considered Mr X’s comments and raised them with the consultant to address on several occasions.
  3. The consultant’s report of December 2016 addressed the points raised by Mr X. The Council has now explained why it considered the report was sufficient to discharge the condition, including why the deviation from the 2014 condition was acceptable and the increase in downward windspeed. I understand Mr X strongly disagrees with this decision and the decision. But the Council has considered whether the report is sufficient and it has explained it reasons for its decision. So, there is no evidence of fault in how the Council reached the decision. I therefore do not have grounds to question the merits of its decision.
  4. The Council did not have any obligation to respond to Mr X’s comments on the consultant’s report. But it has acknowledged it should have advised Mr X that it would not respond to the points he raised. This does not amount to fault but in any event the Council has apologised to Mr X which is sufficient.

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Final decision

  1. Subject to further comments by Mr X and the Council I intend to find that there is no evidence of fault in how the Council made it decision that an appropriate noise compliance assessment report had been submitted to discharge a planning condition for a wind turbine. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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