Summary: Mr X complained the Council failed to enforce a planning condition relating to noise from a wind farm. As a result, he says he and his family have suffered from low frequency noise since the wind farm began operating. The Council was not at fault. It established the noise from the wind farm was within the limits set out in the planning condition.

The complaint

1. Mr X complained the Council failed to ensure a local wind farm complied with a planning condition relating to noise and failed to enforce the condition.
2. He says as a result he and his family, as well as other neighbours, have suffered from ‘excessive amplitude modulation’ (EAM) noise since the wind farm began operating.

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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. 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)
4. 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)
5. 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

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

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What I found

Relevant law and guidance

8. 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.
9. 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.
10. 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.
11. 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 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 day-time and night-time noise.
12. In addition to planning controls, councils may consider using 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

13. The Council refused permission for the wind farm. The operator appealed to the planning inspector, who granted permission, subject to conditions, including a condition about noise. The planning inspector said this Council should monitor compliance with the planning condition and another council should assess the ongoing impact of noise on residents. The two councils have been monitoring and investigated noise complaints since the wind farm began operating. The other council’s actions are considered in a separate decision statement.
14. 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 Council was satisfied that, with the scheme in place, operational noise was within relevant limits.
15. Subsequently, the operator made changes to the blades of the wind turbines, 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. Mr X does not consider the experts were fully independent because both companies have directors with interests in the wind industry. Both experts consulted with the other council involved and with a residents’ group. Methods for collecting data was agreed at the outset by the two experts and the two councils and was collected over a six month period. Methods for assessing the data was proposed by expert A, and agreed by expert B and the two councils. Concerns and queries by the residents’ group about methodology were addressed by expert B. Mr X is unhappy with the methodology and says the Council ignored the views of residents. Mr X considers the Council should have taken more note of the residents’ group’s own noise monitoring data.
17. The Council informed the residents group of the outcome and gave it access to the source data.
18. 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.
19. 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. The responsibility for investigating noise nuisance where Mr X lives rests with the other council and will be considered separately.

My findings

20. 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.
21. Before it made its decision about whether the noise condition was complied with, the Council considered the impact use of the site would have on residents. It took account of the conditions imposed by the planning inspector, the views of residents, the other council and the experts. It is aware of the concerns Mr X has raised. It followed the process we would expect and, although I am aware Mr X is not happy with that process, I have not found fault in the way it made its decision. It is not my role to say whether the conclusion it reached was correct.

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Final decision

22. I have completed my investigation because I have not found fault with the way the Council made its decision.

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Investigator's decision on behalf of the Ombudsman