Plans to set minimum distances between wind turbines and residential properties because of noise are flawed and should be silenced, write William Densham and Kate Poole

There are more than 350 operational windfarms in the UK meeting, at peaks, more than 11 per cent of UK electricity demand. Around 270 more projects have been granted planning permission, and a further 350 are going through the planning process. Most are located onshore.

As windfarm developments increase, so too do the challenges that developers must overcome in finding new, viable sites onshore. Among the planning constraints that must be considered are landscape and visual impact, cultural heritage, ecology and noise. There is detailed national, regional and local planning guidance relating to each area.

Moreover, planning guidance requires the decision-maker to take into account the cumulative impacts of windfarm proposals in any given area. So a developer submitting a planning application for, say, the second or third windfarm in an area may find it more onerous to satisfy planning tests than the developer of the first windfarm.

Technology, too, is playing a part. On the pro-wind side, improvements are enabling bigger turbines to be used by large-scale developers. On the other hand, growth of the internet is enabling opposition to windfarm development to become more organised and effective. Developers typically face objections from action groups before, during and after the planning stages of a development. These groups tend to be organised at a local level and are usually driven by concern about the effect development may have on neighbouring residents.

Noise is a particular bugbear. Planning conditions limit the maximum levels of wind turbine noise that can be heard at neighbouring properties. Conditions are based on detailed guidance, known as ETSU-R-97 (ETSU), published by the Department of Trade and Industry.

As windfarm development has become more prolific and the size of turbines has increased, objectors have claimed ETSU fails to provide adequate protection for the amenity of local residents. However, despite an increase in objections, the number of complaints is still small compared with the number of operational windfarms. A substantial percentage of the overall number of recorded noise complaints relate to a very small number of sites.

Very little action has been taken against windfarm developments relating to noise complaints. There has been only one recorded case of statutory noise nuisance proceedings being brought against a windfarm in England. Last year, Mr and Mrs Davis brought the first private noise nuisance claim against the operators of Deeping St Nicholas windfarm in Lincolnshire, claiming that noise from the turbines had forced them out of their house. The case settled on confidential terms, and while many expected it would open a floodgate for complainants waiting in the wings, there has been little action to date. It can be assumed that this is because most, if not all, windfarms co-exist in their environment with residents who are undisturbed by them. ETSU seems to be doing its job.

Nevertheless, Parliament has seen the recent re-tabling of the Wind Turbine (Minimum Distance from Residential Premises) Bill. The private members’ bill was re-introduced by Lord Raey after it failed to progress last year due to lack of parliamentary time. The Bill was given its first reading in May, and sets down a sliding scale of proposed minimum distances between residential properties and wind turbines. For most commercial windfarms (with turbines measuring between 100 and 150 metres in height), a minimum distance of 2km would be imposed by the Bill. However, where the consent of residential property owners, leaseholders and long-term tenants within the exclusion zone can be secured, the restrictions may be suspended.

If enacted, the Bill would have a significant effect on the siting of onshore windfarms in the UK. Some planning authorities have already highlighted that the imposition of these separation distances would result in there being little or no large wind turbine developments in their borough in the future. The effect would be to push windfarms into increasingly remote locations. This in turn would pose different bars to development, such as increasing infrastructure costs and raising planning considerations relating to building in rural sites.

The proposals fail to take into account that there are many factors, apart from separation distance, that can have an impact on the noise experienced at neighbouring properties – for instance, the position of the property relative to the windfarm, local topography and meteorology. The proposals also fail to acknowledge that noise impact is an issue experienced at very few sites across the UK.

Further, the Bill goes against the grain of current government policy, particularly relating to noise assessment. The government continues to promote ETSU, advising that it should be used in assessing and rating noise from windfarm development. It rejects the use of minimum distances for windfarms.

As a private members’ bill (that is, a public bill introduced by MPs and Lords who are not government ministers), the chances of it being implemented are slim, and it is still early on in the parliamentary process. However, developers, operators and investors in the industry would be wise to keep a close eye on its progression through Parliament.

William Densham is a partner and Kate Poole is a senior associate at Eversheds

Paradise lost?

In response to Lord Raey’s Bill, Milton Keynes council recently adopted a Supplementary Planning Document (SPD), which sets out requirements for minimum separation distances between wind turbines and residential premises. The SDP has already met with strong opposition from RWE Npower, which has two applications for windfarm developments in the borough. RWE has commenced legal proceedings against the council in the High Court on the basis that the SDP is contrary to national policy and has not gone through the appropriate consultation and scrutiny required for such a change in guidance.

This article first appeared in Utility Week’s print edition of 16th November 2012.

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