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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Barnes & Anor v Secretary of State for Communities and Local Government [2010] EWHC 1742 (Admin) (09 July 2010) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2010/1742.html Cite as: [2010] EWHC 1742 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
(Sitting as a Deputy High Court Judge
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REBECCA AND BRIAN BARNES |
Claimants |
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- and - |
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SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT |
First Defendant |
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-and- |
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SOUTH LAKELAND DISTRICT COUNCIL |
Second Defendant |
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-and- |
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H J BANKS & CO LTD |
Third Defendant |
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David Forsdick (instructed by Treasury Solicitor) for the First Defendant
Jeremy Pike (instructed by Hammonds) for the Third Defendant
Hearing dates: 18 and 21 June 2010
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Crown Copyright ©
MR GEORGE BARTLETT QC:
Introduction
"1. I allow the appeal, and grant planning permission for the erection of 6 wind turbines, control room, anemometer mast and associated access tracks on land to the east of Crosslands Farm, Old Hutton, Kendal in accordance with the terms of the application, REF: SL/2008/0318, dated 29 February 2008, and the plans submitted therewith, subject to the conditions set out in the attached schedule."
The conditions subject to which the permission was granted included this:
"3) The erection of the wind turbines shall not commence until the final specification and design of the turbines has been submitted to and approved in writing by the local planning authority. The specification shall include details of the matt pale grey colour of the turbines. Thereafter the turbines shall be erected in accordance with the agreed specification. No symbols or lettering shall be displayed on any of the turbines without the prior written approval of the local planning authority."
There was no other condition limiting the specification and design of the turbines. So, Mr Taylor says, turbines greater in size than those considered in the ES and evaluated by the inspector could be approved by the local planning authority.
"3. The proposal is known as theArmistead
wind farm. The application drawing showing a typical wind turbine (Figure 4.3) is not drawn to scale; moreover the blades of the turbine are not drawn in proportion to the tower. Nevertheless, the various visual representations of the proposed development in its landscape setting were broadly accepted at the inquiry to depict accurately the scale and proportion of the turbines, and I have based my consideration primarily on these. A few of the indicative wireframe figures in the appendices to Mrs Horner's evidence for the appellant state that the hub height of the proposed turbines would be 80m and the height to blade tip would be 120m. It was confirmed that this is an error; as stated on the majority of wireframes and other visual representations, the hub height would be 60m and the height to blade tip would be 100m. I have determined the appeal on this basis."
Figure 4.3, to which reference is made in this paragraph, illustrates a wind turbine with the height dimensions referred to by the inspector – 60m to the hub, 100m to blade top. It was a turbine of this size that was the subject of assessment in the ES.
"45. If one reads the Decision Letter, and in particular para. 48, and if one has regard to the details of the plans which set the contours of the land and the position of the trees, it seems to me that it simply cannot have been contemplated that by imposing conditions the Inspector was intending the LPA to go outside the constraints placed by the plans. It was not intended that the LPA could in effect reconsider the impact on the environment and vary the conditions imposed by the plans."
"20. Each of the 6 wind turbines proposed atArmistead would have a generating capacity of up to 2.5MW, giving a total installed capacity of up to 15MW. The appeal proposal would therefore make an appreciable contribution towards reducing the shortfall against the NWRSS targets..."
""70. Some residents who live close to the site fear that development would cause a substantial increase in noise. I heard evidence at the inquiry of noise problems at existing wind farms in other parts of Cumbria and further away and accept that, in certain instances, noise can be a source of significant disturbance. In this case the Council does not believe that noise would be problematic, based on the study in the ES which found that predicted noise levels at surrounding residential properties would generally be below existing background levels. Nevertheless, because predicting noise from wind farms is a far from exact science, a condition is proposed which sets out maximum daytime and night-time noise levels at these nearby properties.
71. I note CPCSL's concerns about the measurement of background noise levels, wind shear and the impact when winds are from the east. Their technical evidence was limited, however, and as it was not given by a noise expert, it could not be fully tested at the inquiry. The Council is satisfied that the ES noise assessment followed the correct procedures, as set out in the ETSU-R-97 guidance, and I attach greater weight to its conclusion. Moreover the particular circumstances of this case – relatively high background noise levels because of the proximity of the M6 motorway, a wind shear coefficient which is below that assumed by the turbine manufacturer, and the turbine on which calculations are based being one of the more noisy models – tend to reinforce rather than undermine the findings of the noise study. Consequently, I consider that the wind turbines are unlikely to cause unacceptable noise at nearby dwellings. Nevertheless, I accept the need for a noise limits condition on a precautionary basis."
"We will not be providing the wind data derived from the mast, this is commercially sensitive information…If CPCSL wish to make a case that this information is essential to the consideration of the case by the inspector it is open to them to advise the inspector accordingly."
"2. No account has been taken of wind shear…Mr Bowdler believes that Banks should have provided data on the wind shear effect as a difference of up to 15dB from predicted levels have been reported (see ES, 6.6.13, page154). This has been provided in Mr Provans appendices but we have been unable to verify it due to the withholding of data."
"At the inquiry, I recorded Dr Hall as saying: 'Broadly accept that Banks produced data we required. Not challenging ETSU. Accept Provan has supplement with windshear.'
Dr Hall in his witness statement says with reference to this:
"8. The Inspector refers at para 9 to the notes he took at the inquiry, but I cannot agree that the remark 'Broadly accept that Banks produced data we require' properly reflects my evidence. I had made it clear to the Inquiry that Banks had produced some of the data requested by me, but dragged their feet, produced incomplete data, and actually refused to provide the raw 60 metre wind data. This was all made clear in the evidence to the Inquiry. I did of course accept that there was a supplement to Mr Provan's proof of evidence dealing with wind shear. However, I could not agree or disagree with the contents of the supplement because I did not have the raw wind data and so was never in a position to have it checked."
"21) The Wind Turbine Noise Level shall not exceed the following levels (measured as dB LA90, 10 min) specified in the table below at each noise sensitive location and specified wind speed during the Day Time periods of 1700 to 2300. For any noise sensitive property not specified in the table, the noise levels for the nearest geographical location shall apply."
"23) No tonal correction has been applied to the Wind Turbine Noise Level as the final wind turbine has not been selected. Should there be a tonal element which would attribute a penalty when assessed in accordance with the guidance given in ETSU-R-97 pages 80-81, a penalty of 5dB shall be added to the turbine noise emissions. Any tonal correction shall be submitted to and agreed in writing with the local planning authority prior to construction commencing.
24) At the reasonable request of the Council following a complaint to the Council relating to noise emissions from wind turbines, the operator shall measure at its expense the level of noise emissions from the wind turbines (inclusive of existing background noise) using an LA90 index over a minimum of 20 periods each of 10 minutes duration. At least 10 of the periods of measurement shall be made at wind speeds between a wind speed specified by the Council and a wind speed of no more than 2 metres per second above that specified by the Council. At least 10 measurements shall be made at wind speeds between the wind speed specified by the Council and a wind speed not less than 2 metres per second below that specified by the Council. Measures of noise emissions shall be made in consecutive 10-minute periods provided that they fall within the wind speed range defined in this clause. The measurement methodology shall be agreed with the local planning authority and the results shall be submitted to the Council in a specified time period agreed in writing with the local planning authority.
25) Wind speed and direction data shall be measured at a height of 10m throughout the duration of the operation of the wind turbines and provided to the local planning authority at its request to enable the Council to check compliance."
"65. I acknowledge that the turbines would come fully into view on the skyline as the occupiers of Gilsmere Nook approach the public highway along the access track. The turbines would also be highly prominent when working in the fields that abut the application site, for the nearest turbine to the farm holding (T3) would be a dominant structure about 120m from the field boundary. I accept that such proximity would diminish the quality of the work experience for the occupiers of Gilsmere Nook. However, I believe it is appropriate to draw a distinction between the work environment and that around the home, where a higher threshold of amenity should apply. Because the turbines would not be highly conspicuous from within and immediately adjacent to the dwelling, I do not believe that the development would give rise to an unacceptable loss of amenity for the residents of Gilsmere Nook."
This paragraph appeared in a section of his decision headed "Living conditions of neighbours", and at para 74 he set out his conclusion on this matter, including the following:
"There would be limited visibility of the wind farm from inside Gilsmere Nook and East Ridding, the two nearest properties; although the turbines would appear obtrusive from parts of the curtilages of these dwellings, the overall impact would not be so harmful as to be unacceptable."
The inspector did not refer in his conclusion to the impact on those working in the fields, and Mr Taylor's contention is that, having identified this consideration at paragraph 65, the inspector failed to take it into account in forming his conclusions.