Applications for wind turbines may have nose dived but that still leaves existing turbines hitting legal problems, finds Lis Stedman.
The Scottish government’s keenness on renewable energy is well documented and, many would say, commendable.
One inevitable result, however, has been a proliferation of wind turbines and, with them, localised spikes in complaints – for example, Aberdeen has seen a 40% drop in noise complaints year-on-year, whereas rural Aberdeenshire has seen a 170% increase. A hefty 17 of the total of 142 complaints were about wind turbines, according to local press reports. Behind the figures are individual stories that, while clearly upsetting for those involved, also lay bare the long-winded, remarkably iterative and frustrating processes required to ameliorate the noise issues. It also casts doubts on the preparedness of some councils for the “rush to wind”, and the lack of available expertise and manpower.
Take, for example, Aileen Jackson, whose near neighbour installed a Proven Energy P35-2 turbine in early 2010 at Mid Farm, Uplawmoor, 280m from her property (Noise Bulletin February/March 2011). This small turbine was taken down shortly before the private noise nuisance case (under the EPA 1990) was heard. Unfortunately, since then East Renfrewshire Council has continued to consent wind turbines of all sizes around the property. A report has shown that noise limits are being breached by a chunky 9dB, she says.
“We have emailed repeatedly since we got the report in May, but [the council] have only written to the operators concerned asking them to show compliance with the noise conditions.” However, she suggests that this would be impossible, because getting one operator to show compliance would involve persuading the others to turn their turbines off.
The Jacksons’ insurance company has agreed to pay for Bowdler and a QC to work with the council on her behalf – she points out that legal expenses for nuisance cases can be funded through household insurance, as long as it is considered there is more than a 50% chance of the plaintiff winning.
She believes the generous feed-in tariff in 2010 created an avalanche of applications from many landowners that swamped unprepared EHOs, noting: “Even today I find EHOs and consultants who don’t really understand noise character and the potential to give rise to unreasonable disturbance.” She adds that the various types of turbines have different noise characteristics – the small turbines sound like helicopters, she says, with other types creating a range of other distinctive noises. “The noise penetrates into the house even when it is below background.” Double glazing exacerbates the problem, as it eliminates wind noise but not turbine noise, so the sound of the turbine is more intrusive with the windows closed.” Jackson has concluded that the only way forward is another private nuisance case if the Council don’t act. “We did not want to do this because of the number of operators,” she says. The case will certainly be complex, not least because one of the sites, the Neilston community windfarm, was sold to The Renewables Infrastructure Group (TRIG), in May this year.
In another case, this time with Highland Council, Ed Hall and his wife June complained to the Ombudsman about a domestic turbine that was too close to their property in Ormiscaig, near Ullapool, according to Etsu guidance. Hall says that many of their complaints to the Ombudsman related to planning, among which were mistakes in the application and permission being granted for a 10kW turbine rather than the maximum 6kW. The result has been a success for the couple: the Ombudsman upheld their case, recommending that the planning officer be retrained; the Bergey Excel 10 turbine has been dismantled, and the Halls have received an apology from the council. The council’s apology notes, however, that the “methodology used by the EHOs was appropriate because the noise could not have been predicted,” Hall says, adding: “We don’t think Highland Council correctly interpreted the noise graph that came along with the turbine. And if that one wasn’t read correctly, what about others?” He notes: “This took two and a half years of our life and cost our neighbour [who erected the turbine] £70,000. To us it seems wrong.” He recalls confusion over where responsibility lay – with planning or environmental health – adding “I doubt whether many planning officers understand what they are being asked to decide on.” Hall also stresses: “Nothing has been done to safeguard anyone else. It’s quite frustrating.”
Emotions clearly run high in these cases.
Another affected householder notes that the noise “sounds like an old steam train or an aircraft that never lands” and one interviewee spoke of the noise being occasionally “as loud as a military jet overhead”, with scant concern for the effect on livestock. The noise has also been graphically described as “graunching”, or a “pulsing jet”, and it is known that protesters have spoken movingly of their suffering, how much the noise affects them, and the relief when they are able to escape the situation. Annual safety trials can be particularly problematic, this is where turbines are overspeeded and then braked, which can lead to significant noise issues.
A further example of the complexity of these issues is the situation of Rachel Connor. She lives next to the Whitelee windfarm, the largest in the UK with 215 turbines from 110 to 140m in height. Consultation on this began in 2006, and the first two phases were completed in 2012. The wind farm is C-shaped, and Connor lives in a group of houses adjacent to the hollow of the C.
In 2012, Community Windpower submitted another application for Sneddon Law – 15 turbines, 130m in height – to East Ayrshire council. She calls the subsequent approval an unusual decision. Scottish Power, which operates the Whitelee windfarm, commissioned an acoustic consultant, who said the new windfarm – which fills in part of the C – would bring the turbines much closer to us. The report said there would be overwhelming noise from both and it wouldn’t be possible to separate out who was over the allowable limit.”
Dick Bowdler who was commissioned to investigate the situation, illustrates the difficulty in his report: “During a compliance test, SL [Sneddon Law], WL [Whitelees) and BG (background) are all 36.5dB so the total is 41.3dB. Of course we don’t know any of the individual levels in advance during the compliance, we only know the total of 41.3dB and, after SL is switched off, the total of WL and BG, which is 39.5dB. If the cumulative noise limit is 40dB it is exceeded with both wind farms running, but not when SL is turned off. The reporter says this shows SL to be in breach. But the total of WL and SL is 39.5dB – less than 40. So nobody is in breach. “On the other hand, there are many other solutions to the equation where SL, WL and BG equal 41.3 and where WL and BG equal 39.5. One of them is where WL is 38dB, SL is 36.8dB and BG is 34dB. Here, WL complies but WL + SL totals 40.5 and so SL is in breach. So the fact that turning SL off drops the noise level below the limit fails to tell us whether SL complies with the cumulative noise limit.” He agreed that there would be excessive noise, and that it would be impossible to enforce the conditions as it would not be possible to get a proper background noise reading.
Despite this view, the council nevertheless agreed the application subject to section 75 and other conditions in a meeting held during the summer holidays. The Public Standards Ombudsman subsequently upheld three out of four complaints regarding awarding consent that Connor raised. She notes: “Unless you have got money for a judicial review, it doesn’t matter how right or wrong you are.”
Community Wind Power appealed to the DPEA (the Scottish Government’s Planning and Environmental Appeals Division) in 2014 and won despite both Scottish Power and Bowdler’s report. The council had also, by this time, employed its own acoustic consultant.
Following the appeal, the conditions were partially rewritten but required subsequent approval from the council. This process began in late 2016 but Community Wind Power decided to appeal again on the grounds of non-determination and a different DPEA reporter decided that the best thing to do was send the case back to the council to decide. The council found in favour of Community Windpower.
Connor notes: “Scottish Power said there would be excessive noise at some local properties. Our consultant, Dick Bowdler, said the same. With all of that information, the council slightly surprisingly approved it”.
The case then went back to DPEA which upheld the decision but Scottish Power has now appealed against this judgement so the wait continues. “We are back, sort of, to square one” she concludes.
She adds that it is a “very complicated story that has been going on for five years and noise is just part of it”.
“We are totally overwhelmed with turbines even now.”
The Scottish Power appeal, date as yet unknown, will be “very interesting” she thinks. “For once someone else is paying for it – it is incredibly expensive. The whole time you are up against it. Commercial developers can put their expenses against tax. For us it is a big deal.
Is there therefore an issue specific to Scotland? Dick Bowdler who has acted for many of the complainants in the above cases, says not. “There are some cases going on at the moment but I haven’t got the impression it is anything out of the ordinary.”
However, he add “In general terms, I think there is a fundamental problem. Most of these turbines are put up in rural areas where [they are] an alien sound. There are some in semi-industrial areas, for example the Mitchelin turbines in Dundee and one in Dunfermline. I don’t say these do not cause any problems but the background noise is industrial. You can imagine it is not as bad a state of affairs as if you live in a rural area where there is no mechanical noise at all.”
He adds that “one of the difficulties with wind turbines is that if there is a problem, there is no quick fix. Everything takes a long time.”
The various cases prove that observation to be true as well as illustrating the emotional (and allegedly health) impacts from the complainants’ perspective and their need to find relief from what many see as an unbearable situation.
Un-attributable comments suggest that bad-feeling can exist (or be perceived to exist) among various parties involved. Given the profits from windfarms, even with subsidy reductions, teamed with the central and regional governments’ embracing of wind power as a green energy source, it’s very likely cases such as these will continue to arise. And ultimately, to create a significant conundrum for councils around the country.
OTHER PROBLEMS WITH SIMILAR TURBINES
In another case, Mr and Mrs Milne have started legal proceedings against the owners of wind turbines at West Knock Farm near their Aberdeenshire property. Following three procedural cases earlier this year, the “proof” case has been called in February 2018.
A statement issued on the couple’s behalf says “Having received no notification, Mrs Milne and her husband were unaware that three 80m Enercon E48 turbines (48m rotor span) would be erected in such proximity to their home in 2011.
Despite the 2011 Aberdeenshire Council guidelines stating that turbines should be placed at least 10 x rotor distance from homes, the closest turbine is only 420m from their property. The second and third turbines are approx. 650m and 950m distant respectively.”
Mrs Milne explains that “frequently the noise generated by the turbines can be heard through double glazing and her outdoor life has been plagued by the insidious nature of the noise.”
Complaints to Aberdeenshire council from the Milnes and other properties in proximity to the turbines resulted in a Statutory Noise Nuisance notice being served on Stuartfield Wind Power in 2013.
The notice was appealed and the company given time to rectify the noise issue.
Environmental health officers have visited the property many times on occasions the weather conditions were such that one of the officers said that the noise was so bad the bedrooms were essentially unusable.
In 2016 the council employed independent consultants Hoare Lea Acoustics to carry out a noise survey at several properties neighbouring the wind cluster. Their report confirmed that the nature and volume of the noise would still cause problem for residents. Aberdeenshire council has so far not taken any legal action; the reason is unclear.
From the outset, the couple have sought advice from an acoustic expert on both the noise report submitted in the planning phase and in subsequent noise monitoring surveys carried out by Greencat Renewables, agents for the turbine operator. With this and Aberdeenshire Council’s apparent unwillingness to take matters further, the Milnes have been forced to pursue their own legal case to try to get the noise abated.”
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