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Department of Energy
& Climate Change
Development Consents and Planning
Reform Team
3rd
Floor Area A
3 Whitehall Place
London SW1A 2HD
www.decc.gov.uk
Tel: 0300 068 5770
Email: [email protected]
11 November 2010
Mr David Hodkinson
Vattenfall Wind Power Ltd Bridge End Hexham Northumberland NE46 4NU
ELECTRICTY ACT 1989 (“the Act”)
TOWN AND COUNTRY PLANNING ACT 1990
APPLICATION FOR CONSENT TO CONSTRUCT AND OPERATE A WIND
TURBINE GENERATING STATION ON LAND AT RAY ESTATE, NEAR
KIRKWHELPINGTON, NORTHUMBERLAND
I THE APPLICATION
1.1 I am directed by the Secretary of State for Energy and Climate Change
(“the Secretary of State”) to refer to the application dated 12 December
2005 (“the application”) on behalf of AMEC Project Investments Limited
(“the company”) for both the consent of the Secretary of State under
section 36 of the Act (“section 36 consent”) to construct and operate a
56MW wind turbine generating station on land at Ray Estate near
Kirkwhelpington, Northumberland (“the Development”), and a direction
under section 90(2) of the Town and Country Planning Act 1990 (“section
90 direction”) that planning permission for the Development be granted.
II PUBLIC INQUIRY
2.1 Following objections from the relevant planning authorities, Tynedale
District Council and Northumberland County Council, to the Application,
the Secretary of State was obliged to cause a public inquiry into the
Application to be held under Schedule 8 to the Electricity Act 1989. The
public inquiry also considered an application made by Steadings
Windfarm Limited, under section 36 of the Electricity Act 1989, to
construct and operate a wind turbine generating station on land near
Kirkwhelpington, Northumberland (“Steadings”) and an appeal by Wind
Prospect Developments Limited against the failure of Tynedale District
Council to determine within the statutory time period an application for
the erection and operation of 18 wind turbines on land at Green Rigg
Fell, Birtley Parish, Tynedale (“Green Rigg”).
2.2 The Secretary of State appointed Mr David M H Rose BA (Hons) MRTPI
(“the Inspector”), to preside over the public inquiry. The public inquiry
was governed by the Electricity Generating Stations and Overhead Lines
(Inquiries Procedure) Rules 2007 (“the Inquiries Procedure Rules”).
2.3 The public inquiry was held at The Britannia Hotel, Newcastle Airport,
between 15 January 2008 and 18 December 2008. The Inspector
submitted his Report of the public inquiry to the Secretary of State on 30
November 2009.
2.4 The Inspector‟s formal recommendation in relation to the Development was
as follows:
16.4 “I recommend that consent be refused under Section 36 of the Electricity
Act 1989 to construct, operate and decommission a wind farm generating
station of up to 56 megawatts capacity comprising 16 wind turbine
generators up to 125 metres high; site access roads; an electrical
substation and compound; a wind farm monitoring mast; four temporary
borrow pits; and a temporary compound and temporary component
storage area on land at Ray Estate, near Kirkwhelpington,
Northumberland; and that a direction under section 90(2) of the Town
and Country Planning Act 1990 be not given.
16.5 In summary, the only reason for recommending refusal is the uncertainty
surrounding the implementation of appropriate measures to mitigate the
adverse impacts of the proposal on the operations of NERL and NIAL.
Such uncertainty would undermine the rationale for imposing a Grampian
condition in that the condition might not be fulfilled; and consent for the
project could preclude other wind farm projects from coming forward in
the locality.
16.6 In the event that the Secretary of State disagrees with my conclusions
and recommendation, a list of recommended conditions to be imposed
on any consent and deemed approval is set out in Appendix B(ii) for
consideration.”
III PREVIOUS SECRETARY OF STATE‟S CONSIDERATION OF THE
APPLICATION
3.1 After receiving the Inspector‟s Report, the then Secretary of State
carefully considered it, together with the views of the relevant planning
authorities, the objections received, other representations made to him
by various bodies, the environmental information (see section VIII below)
and all other matters he considered relevant.
3.2 His conclusions are set out in a letter dated 25 March 2010 addressed to
David Hodkinson of Amec Wind Energy (“the minded to letter”). A copy of
that letter is annexed to this letter.
3.3 In summary, the then Secretary of State was minded to agree with the
Inspector‟s conclusions with the exception of his conclusion in respect of
the imposition of a “Grampian” condition concerning mitigation of impacts
on the operations of National Air Traffic Services (“NATS”) (En-Route)
Limited (“NERL”) and Newcastle International Airport Limited (“NIAL”).
The then Secretary of State disagreed with the Inspector‟s conclusion in
that respect after taking account of developments since the close of the
public inquiry.
IV DEVELOPMENTS SINCE THE PUBLIC INQUIRY CLOSED
4.1 The Department of Energy and Climate Change (DECC) and its
predecessor Departments have been working for several years with
NERL and the sole supplier of NERL‟s radar, Raytheon Canada, to find a
technical solution to the unacceptable impacts of wind turbines on
aviation radar. Following a Department of Trade and Industry funded
feasibility study in 2007, NERL put forward a proposal for a 2-year
research and development project to develop and test a software
upgrade to the Raytheon radar to mitigate wind turbine interference.
4.2 DECC, The Crown Estate (TCE) and developers contracted with NATS
to deliver an R&D programme for the Raytheon radar. Each party
committed to funding a specific proportion of the work. This is a 19 month
programme of work, which is being undertaken by NATS staff and
Raytheon Canada Ltd. It is jointly funded by DECC, TCE and NATS,
under a contract signed in October 2009.
4.3 Work on the project commenced in September 2009 and should be
complete in July 2011. The Secretary of State was not aware at the time
of the minded to letter of any reason to suggest that the trial would not be
concluded satisfactorily.
V. PREVIOUS SECRETARY OF STATE‟S PROPOSED DECISION ON
THE APPLICATION
5.1 The minded to letter set out the reasons why the then Secretary of State
was minded to grant section 36 consent and issue a section 90 direction
for the Development.
5.2 He accepted the Inspector‟s findings on the section 36 application in all
respects other than the question of whether it was appropriate to impose
a Grampian condition to ensure mitigation of the adverse impacts on the
operations of NIAL and NERL where he was minded to accept that the
new information referred to in paragraphs 4.1– 4.3 of the minded to letter
changed the planning balance to the extent that it would be appropriate
to impose such a condition. In his judgment, this information indicated
that there was a reasonable prospect that the new Raytheon radar
would, within the next five years, be available and capable of mitigating
to a satisfactory extent adverse impacts on the operations of NIAL and
NERL.
5.3 He believed that planning conditions set out in Appendix B(ii) of the
Inspector‟s report would form a sufficient basis on which the
development might proceed. He was therefore minded to give a section
90 direction that planning permission for the Development be deemed to
be granted subject to planning conditions in substantially the form to be
found at Annex E to the minded to letter.
5.4 However, in accordance with regulation 21(6) of The Electricity
Generating Stations and Overhead Lines (Inquiries Procedure) (England
and Wales) Rules 2007, he was first required to notify in writing the
persons entitled to appear at the inquiry, who appeared at it, of his
disagreement with the Inspector‟s recommendations and the reasons for
it; and afford them an opportunity of making written representations to
him or of asking for the re-opening of the inquiry. This was because, in
disagreeing with the Inspector, he proposed to take into account new
evidence or matters of fact in relation to the new Raytheon radar which
were not available to the Inspector.
VI. REPRESENTATIONS RECEIVED IN RESPONSE TO THE MINDED TO
LETTER
6.1 Responses to the minded to letter were received from Vattenfall Wind
Power Ltd, NERL, NIAL, The Revd John Wylam (a former Chairman of
Thockrington Parochial Church Council), Mr Malcolm Reid and the
Campaign for Responsible Energy Development in Tynedale (CREDIT).
The responses are summarised below with the Secretary of State‟s
observations on those responses in italicised text below the responses.
6.2 NERL made representations in respect of the “minded to grant consent
letter” on 29 April 2010. They made the following points:
6.2.1 “SoS has provided insufficient details of the new evidence on
which he is relying to depart from Inspector’s recommendations
6.2.1.1 It is unfair for SoS to proceed to a decision without
providing full details of the new evidence.”
DECC has provided full details of the new evidence to all parties in
subsequent correspondence.
6.2.2 “SoS has insufficient factual basis to depart from Inspector’s
recommendations
6.2.2.1 The “new evidence” reveals nothing that was not known to /
anticipated by the Inspector:
(a) it was expected that matters would reach the stage that
they now have (and indeed, that they would do so sooner than
they in fact have);
(b) NERL gave expert evidence that design and prototyping
would take 3 years and procurement and instalment a further 2
years;
(c) the Inspector concluded that the balance of the evidence
was that “assuming no material setbacks”, it could be delivered
within a period of some 5 years;
(d) NERL did not suggest at the inquiry that the R&D
programme would not begin, merely that there had been delays at
this stage.”
On point (a), the Secretary of State is of the view that the fact that the
research and development trial of the Raytheon radar has been funded
and has begun since the conclusion of the Inquiry is a new material fact.
It cannot have been known for certain during the Inquiry that the
research would proceed. Indeed the fact that in NERL’s opinion progress
has been slower than anticipated merely shows the level of uncertainty
that surrounded the potential funding and progress of the Raytheon
research at the time of the inquiry. Points (b) and (c) are true but in
themselves do not undermine the Secretary of State’s conclusions. On
point (d), as before, the anticipated timescales at inquiry have been
overtaken by events and actual progress made in the R&D programme,
which in the view of the Secretary of State must be taken into account in
the consideration of his decision.
6.2.3 “At present, there is no justification for consenting the
Development subject to a Raytheon-based suspensive condition on
radar impact mitigation
6.2.3.1 SoS has stated that he does not disagree with the
Inspector‟s conclusions as reached based on the material before the
Inquiry, but considers that securing of funding for R&D into Raytheon
solution changes the planning balance.”
It is the Secretary of State’s opinion that the securing of funding and the
progress made to date in the R&D does indeed change the planning
balance in respect of potential for successful mitigation of civil aviation
radar impacts within the timescale of the consent. The securing of the
funding for the R&D is a not insignificant stage to reach and the financial
investment made in the project so far would suggest, if the research
continues to progress satisfactorily, that future funding might be rather
more likely to be forthcoming (as participants are likely to be keen to
ensure that the current investment is not wasted and the benefits of a
successfully developed Raytheon system, which could apply to many
developments, can be unlocked).
6.2.3.2 “The Inspector said that given the “high hurdles” to be
overcome and “fundamental uncertainties” as to Raytheon‟s success, “it
was not possible to say with any reasonable degree of confidence that
Raytheon was likely to be available within a foreseeable and reasonable
time-frame”.”
The SoS is of the view that there is now a reasonable prospect of
Raytheon being available within 5 years of the date on which the consent
for the Development is being issued.
6.2.3.3 “The high hurdles referred to were success in the R&D
project and securing of funding for the next stage (not commencement of
the R&D project). Neither of these has yet been overcome.”
The Secretary of State takes the view that the funding and
commencement of the R&D project was a high hurdle in terms of the
overall project and given that the funding for that stage had not been
secured by the close of the inquiry, it seems unlikely that the Inspector
would have viewed it differently. While the Secretary of State accepts
that there will be other “high hurdles” for the project to clear before it is
successfully concluded, he is unaware of any information to suggest that
the project is not progressing satisfactorily.
6.2.3.4 “Inspector concluded and SoS has accepted that there may
be circumstances where a suspensive condition should not be imposed
where the lack of a reasonable prospect of implementation would have
harmful planning consequences or there is no prospect whatsoever of
the specified action being performed within the time limit of the
permission.”
The same paragraph of the Inspector’s report (15.395) also notes: “the
Secretary of State’s current policy is that the imposition of Grampian
conditions should not be precluded solely because there is no
reasonable prospect of the action in question being performed within the
time limit of the permission”. Elsewhere in the Report, reference is made
to the fact “the House of Lords established that the mere fact that a
desirable condition, worded in a negative form, appears to have no
reasonable prospects of fulfilment does not mean that planning
permission must necessarily be refused as a matter of law”. But in any
event this is not a case where the Inspector found that there was no
reasonable prospect of the proposed suspensive condition being fulfilled.
What he said was: “it is not possible to say with any reasonable degree
of confidence that Raytheon is likely to be available within a foreseeable
and reasonable time-frame”. That is a different point, and when the
Inspector goes on to say: “For this reason, I consider that it would be
inappropriate to rely on this as an imminent mitigating technology and the
basis for a suspensive condition”, the Secretary of State is entitled to,
and does, take a different view, not least given the passage of time and
progress of the R&D project.
6.2.4 “Consenting the Development subject to a Raytheon-based
suspensive condition is contrary to DECC’s policy because it would
make it harder for other wind farm applications in the area to
succeed”
6.2.4.1 “A “banked” Ray consent would diminish the prospects of
consent for other projects because it would form part of the baseline for
cumulative impact assessments, whether of radar or other adverse
effects. Since the suspensive condition might never be fulfilled and Ray
therefore never built, it might be better not to let it potentially obstruct
other proposals in this way. Consenting Ray therefore militates against
the promotion of renewable energy.”
In respect of radar, for any given turbine in another project, one of two
outcomes is possible: either the presence of the Development would give
rise to cumulative adverse impacts or the presence of the Development
would not give rise to cumulative adverse impacts. The outcome of there
being no cumulative impacts presents no problems for present purposes.
The outcome of there being cumulative impacts would only be a problem
if cumulative adverse impacts were not addressed by a Raytheon
solution. But the purpose of the suspensive condition is that such
impacts should be addressed, which is why it requires the putting in
place of measures to prevent or remedy any adverse impacts on the
relevant radar systems: there is no reason to suppose that this
requirement will not include prevention or remedying of cumulative
effects. Similarly, the minded to grant consent letter was clear that “no
potential solution to mitigate the impacts of (the Development) on
NERL’s and NIAL’s operations would be acceptable unless the
cumulative level of impacts on the primary radars were to remain at an
acceptable level after the implementation of the proposed mitigation.”
It is possible that other proposed wind farms may have cumulative
impacts, other than radar impacts, when assessed alongside the
Development which they would not otherwise have. However, the
Secretary of State notes the Inspector’s opinion that the Development
proposal was “well developed with few impediments to implementation”
and that “any other proposals, which might be waiting to come forward,
are likely to take some time to come to fruition”. With that in mind and
with due consideration of the amount of renewable energy that the
Development would provide and the need for that energy, he takes the
view that there is no clearly better alternative proposal which would be
certain of benefitting should the Development not be granted consent.
6.2.4.2 “There is no basis for Secretary of State‟s view that other
projects in the area are likely to require similar mitigation and therefore
are unlikely to have a greater chance of success than the Development:
(a) In 2007, NERL raised no objections to 94% of wind farm
consultations received, even though at least 81% were predicted to
have some form of detrimental impact on NATS‟s systems.
(b) The mere fact of other projects being in the same part of
Northumberland as the Development does not mean they would give
rise to similar radar issues.”
(a) The Secretary of State notes the 2007 figures quoted by NERL but
does not consider that they have any specific relevance to the
Development.
(b) The Secretary of State also notes that according to the annex
supplied by NERL, they have objected to 8 proposed wind farms in
the area. While he accepts that there may be sites which do not give
rise to radar issues, he does not consider that he is able to assert that
applications brought forward would have a greater chance of
success, taking into account all impacts, than the Development, the
application for which is at an advanced stage.
6.2.4.3 “Raytheon remains inherently uncertain and even if
successful, is not expected to work in all cases or be 100% effective.
This means that if the Development is consented, NERL will have to
maintain objections to developments comprising 42 turbines as a result,
because until a Raytheon solution is in place and shown to be fully
effective, NERL will have to assume a significant degree of visibility of
any other proposal which relies on a Raytheon suspensive condition for
radar impact mitigation.”
Any objection by NERL will be a matter for the decision maker in such
future cases. The decision on the Development does not set a precedent
for how such applications should be treated.
6.2.5 "SoS should re-open the public inquiry before deciding to consent 6.2.5.1 New evidence should be tested before the Inspector,
subject to cross-examination etc. (“as a matter of fairness, NERL should
be entitled to an oral hearing with the opportunity to present detailed
technical evidence on what is a very technical and esoteric subject…”).”
NERL has not disputed the substance of the new evidence. Therefore
there is nothing to be gained by “testing” it in front of any Inspector. It is a
matter of what weight the Secretary of State chooses to place on the new
evidence.
6.2.5.2 “Without a public inquiry, SoS cannot properly consider the
implications of granting consent to Ray with a suspensive radar condition
based on Raytheon, in terms of the knock-on adverse effect on other
projects coming forward.”
The Secretary of State does not agree with this assertion as, taken to its
logical conclusion, it might mean postponing decisions on any project
which raises radar concerns in the area until the Raytheon solution is
implemented. Such delay is unnecessary given that suspensive
conditions such as that included in this consent provide full protection for
civil aviation interests. As stated above, the Secretary of State is aware
that granting consent to the Development may produce cumulative
impacts for other proposals but does not consider that that outweighs the
benefits of granting the Development subject to a suspensive condition.
6.2.6 “Form of suspensive condition proposed is unsatisfactory 6.2.6.1 It is wrong to refer to the Civil Aviation Authority (“CAA”) rather
than NERL as the body to be consulted on proposed mitigation.”
The Secretary of State is content to refer to NERL rather than CAA in
the condition. Further he has decided to amend the draft conditions
dealing with mitigation of radar impacts which the Inspector suggested, in
order to avoid unnecessary complexity so that there should be only one
condition to deal with the radar impacts on both national air traffic
services and Newcastle International Airport. Because of the
understandable sensitivity of this issue, which may also attend the
discharge of the condition, he has decided that the mitigation of impacts
of aviation should be dealt with by a condition in the s36 consent and that
he will be responsible for discharging it (in consultation with air traffic
service providers as set out in the full condition).
6.3 In a letter dated 5 May 2010 NIAL adopted the findings of NERL and
asked that the Secretary of State review his position and refuse consent
for Ray or re-open the inquiry in order to allow the Inspector to consider
whether there is any „new evidence or matters of fact‟. Our consideration
of NERL‟s response therefore also covers NIAL‟s response.
6.4 In a letter dated 14 April 2010, the Campaign for Responsible Energy
Development In Tynedale (“CREDIT”) considered that as high hurdles
still remain in respect of financing the Raytheon solution, the Secretary of
State‟s „optimism about overcoming what the Inspector referred to as
these “high hurdles” appears to be somewhat misplaced‟.
The Secretary of State acknowledges that hurdles do remain before it
can be shown for certain that the Raytheon solution will provide
appropriate mitigation for the radar impacts of the Development.
However, he considers that not all of those hurdles need to cleared
before it is reasonable to grant consent with a suspensive condition and
that the progress made since the close of the Inquiry is sufficient to justify
that course of action.
6.5 Although the “minded to grant consent” letter did not invite
representations on issues other than civil aviation, CREDIT also
responded that to grant consent for the Development would be
inconsistent with Regional Spatial Strategy (RSS) and that the proposed
noise condition would not be suitable to deal with complaints in respect
of cumulative wind farm noise.
As to the RSS, this was considered at the public inquiry and dealt with by
the Inspector in his report where he found “no material conflict with the
development plan as a whole”. The Inspector also specifically
considered cumulative noise impacts and stated that “In relation to the
concerns expressed by CREDIT … about the ability to monitor the noise
from one wind farm with one or more other wind farms operating at the
same time, the recommended conditions … are designed to provide the
appropriate mechanism.” The Secretary of State agrees with the
Inspector that the proposed noise conditions would allow for investigation
in the case of complaint about cumulative noise from wind farms.
6.6 The Revd John Wylam cited the effect of the development on the
„unique and highly specialized Spadeadam facility.‟
As to military aviation, the Inspector had found that there was “no robust
evidence to show that any of the schemes, or any combination of the
schemes, would result in material adverse effects on operations as a
whole or on the efficacy of training at RAF Spadeadam”.
6.7 Vattenfall agree with the “minded to grant consent” position in that the
information that has been made available since the Inquiry should lead to
consent being granted. They are content for any consent to be
conditioned in respect of the aviation issues and have no objection to the
condition including a provision where „parties (are) required to be
consulted prior to an approval of and implementation of the mitigation
scheme‟ which would protect the interests of NERL and NIAL. They see
no reason or justification for the re-opening of the inquiry.
6.8 Mr Malcolm Reid has written in favour of granting consent to the Ray
windfarm and cites aviation as a problem in the consenting process.
VII. SECRETARY OF STATE‟S CONSIDERATION OF THE APPLICATION
7.1 The Secretary of State has carefully considered the Inspector‟s Report,
the views of the relevant planning authorities, the objections received,
other representations made to him by various bodies, the environmental
information (see paragraphs 8.1 to 9.3), the responses to the minded to
letter and all other matters he considers relevant.
7.2 He notes that, amongst other matters, the Inspector considered:
whether the proposed developments are in accordance with the relevant
development plans
whether the proposed developments are consistent with energy policy
the justification of the sites
the visual and landscape impact of the proposed developments including
on the Northumberland National Park and North Pennines AONB
noise impacts
aviation interests
impact on the historic environment
·tourism and economic impacts
construction traffic
ecology and hydrology
borrow pits
grid connections
human Rights.
7.3 The Secretary of State has carefully studied the Inspector‟s report, and in
particular the Inspector‟s conclusions and recommendations, which, with
the exception of his conclusion and recommendation in respect of the
imposition of a “Grampian” condition concerning mitigation of impacts on
the operations of NERL and NIAL, the Secretary of State is minded to
accept. The Secretary of State‟s reasons for disagreeing with the
Inspector on this one point are those which are set out in the minded to
letter which are repeated above at paragraphs 5.2 to 5.4 and to which he
adheres notwithstanding the responses to that letter which he has
received from objectors to the Development for the reasons set out in
paragraphs 6.1 to 6.6 above.
VIII. SECRETARY OF STATE‟S CONSIDERATION OF THE ENVIRONMENTAL INFORMATION
8.1 The Secretary of State is satisfied that the Environmental Statement is
sufficient to allow him to make a determination of the section 36
application.
8.2 The Electricity Works (Environmental Impact Assessment) (England and
Wales) Regulations 2000 (the 2000 Regulations”) prohibit the Secretary
of State from granting section 36 consent unless he has first taken into
consideration the environmental information, as defined in those
regulations.
8.3 The Secretary of State has considered the environmental information
carefully; in addition to the Environmental Statement (ES), he has
considered the comments made by the local planning authority, those
designated as statutory consultees under regulation 2 of the 2000
Regulations and other consultees and objectors.
8.4 Taking account of the extent to which any adverse environmental effects
will be modified and mitigated by measures that the company has agreed
to or will be required to take either under the conditions attached to the
section 36 consent or the planning conditions which he has decided to
include in the section 90(2) direction, the Secretary of State believes that
any remaining adverse environmental effects will not be such that it
would be appropriate to refuse section 36 consent for the Development
or the deemed planning permission.
IX SECRETARY OF STATE‟S CONSIDERATION OF THE
CONSERVATION OF HABITATS AND SPECIES REGULATIONS 2010
9.1 Regulation 61 of The Conservation of Habitats and Species Regulations
2010 (“the 2010 Regulations”, which so far as is material for the
consideration of the company‟s application have replaced the
Conservation (Natural Habitats, &c.) Regulations 1994) requires the
Secretary of State to consider whether the development would be likely
to have significant effects on a European Site, as defined in the 2010
Regulations.
9.2 In the event of such an effect he must undertake an appropriate
assessment of the implications for the European site in view of its
conservation objectives. The section 36 consent may only be granted if it
has been ascertained that the development will not adversely affect the
integrity of such a site unless there are no feasible alternatives and
imperative reasons of overriding public interest apply.
9.3 The Secretary of State notes there are European interest features in the
vicinity of the site: namely Hen Harriers, blanket bogs and potentially,
bats. He has been informed by Natural England that provided the
proposed Development is constructed and operated in accordance with
the details contained in the Environmental Statement, and the conditions
proposed by Natural England, the proposal would not adversely affect
these features. The Secretary of State notes that Planning Conditions
(21) – (30) cover these matters including restrictions on the timing of
construction and a hen harrier management plan. The Secretary of State
does not therefore believe that the Development is likely to have a
significant effect on any European interest feature and finds no reason
for refusing section 36 consent on these grounds.
X SECRETARY OF STATE'S DECISION ON THE APPLICATION
10.1 The Secretary of State, having regard to the matters specified in
sections, VII, VIII and IX above, has decided to grant consent for the
Development pursuant to section 36 subject to: (i) a condition that the
Development shall be in accordance with the particulars submitted with
the Application, (ii) a condition as to time within which the Development
must commence, and (iii) a condition in respect of civil aviation impacts.
10.2 The Secretary of State believes the Planning Conditions form a sufficient
basis on which the Development might proceed, and therefore he
has decided to issue a section 90(2) direction that planning permission
be deemed to be granted subject to the Planning Conditions. The section
90(2) conditions follow those attached to the minded to letter apart from:
(i) the removal of the two conditions on radar matters and their
replacement by a single condition of the section 36 consent (see above);
(ii) the insertion of explicit requirements on the local planning authority to
consult Natural England in relation to various environmental matters
when administering the Planning Conditions; and (iii) alterations
designed to improve the clarity of individual provisions; and (iv) pure
drafting changes made for reasons of style or internal consistency.
10.3 I accordingly enclose the Secretary of State's consent under section 36
of the Electricity Act 1989 and a direction under section 90(2) of the
Town and Country Planning Act 1990.
XI. DISTRIBUTION
Copies of this letter have been sent to the main parties and individuals
listed in the Inspector‟s Report.
XII. GENERAL GUIDANCE 12.1 The validity of the Secretary of State‟s decision may be challenged by
making an application to the High Court for leave to seek a judicial
review. Such application must be made as soon as possible and in any
event not later than three months after the date of the decision. Parties
seeking further information as to how to proceed should seek
independent legal advice from a solicitor or legal adviser, or alternatively
may contact the Administrative Court at the Royal Courts of Justice,
Strand, London WC2 2LL (General Enquiries 020 7947 6025/6655).
12.2 This decision does not convey any approval or consent or waiver that
may be required under any enactment, by-law, order or regulation other
than section 36 and Schedule 8 of the Electricity Act 1989 and section 90
of the Town and Country Planning Act 1990.
XIII. COSTS
The company made an application for an award of costs against the
Ministry of Defence during the course of the inquiry. The Secretary of
State is still considering matters arising from the Inspector‟s separate
report on the question of such an award and will issue a decision on it in
due course.
Yours faithfully Giles Scott Head of Development Consents and Planning Reform
DEPARTMENT OF ENERGY AND CLIMATE CHANGE ELECTRICITY ACT 1989
CONSTRUCTION AND OPERATION OF A WIND TURBINE GENERATING STATION ON LAND AT RAY ESTATE NEAR KIRKWHELPINGTON, NORTHUMBERLAND
1. Pursuant to section 36 of the Electricity Act 1989 the Secretary of State for Energy and Climate Change (“the Secretary of State”) hereby consents to the construction by AMEC Project Investments Limited (“the Company”), on the area of land delineated by a solid red line on Drawing Drg No 6106-530-PA-001, annexed hereto and duly endorsed on behalf of the Secretary of State, of a wind turbine generating station on land at Ray Estate near Kirkwhelpington, Northumberland (“the Development”), and to the operation of that generating station. 2. Subject to paragraph 3(1), the Development shall be over 50MW capacity and up to 56 MW capacity and comprise:
(a) Up to 16 wind turbine generators with a capacity of 3MW or more, each with a height no greater than 125 metres from the ground to blade tip;
(b) One anemometry mast, not exceeding 80 metres in height; (c) An electricity substation building and underground electrical cabling
connections; (d) 14 kilometres of maintenance tracks for access to the wind turbines; (e) Four temporary borrow pits; and (f) Associated plant, buildings and civil engineering works.
3. This consent is granted subject to the following conditions:
(1) The Development shall be constructed and operated in accordance with the details contained in paragraph 2 of this consent, the application dated 12 December 2005 and the accompanying Environmental Statements, subject to such minor changes as may be approved by the local planning authority pursuant to the requirements of deemed planning permission.
(2) The commencement of construction of the Development shall not be later than five
years from the date of this consent, or such longer period as the Secretary of State may hereafter direct in writing.
(3) No turbine forming part of the development shall begin to be constructed until the Secretary of State, having consulted with the air traffic services providers, is satisfied that civil aviation impact mitigation will be implemented and maintained for the life of the development and that arrangements have been put in place to ensure that such mitigation is implemented before the development gives rise to any adverse impact on air traffic services for civil aviation.
In this condition:
“air traffic services providers” means NERL, NIAL, or any other person who, in the future, shall be under a duty to provide the air traffic services to civil aviation which NERL or NIAL is, at the date of this consent, obliged to provide in an area which includes the development;
“civil aviation impact mitigation” means measures to prevent or remove any adverse impacts which the operation of the development would, but for the implementation of such measures have on the air traffic services providers‟ ability to provide safe and efficient air traffic services to civil aviation in an area which includes the development during the lifetime of the development in respect of which any necessary stakeholder consultation has been completed and any necessary approvals and regulatory consents have been obtained;
“NERL” means NATS (En Route) plc, registered under the Companies Act (4129273) whose registered office is 5th Floor, Brettenham House South, Lancaster Place, London WC2E 7EN; and
“NIAL” means Newcastle International Airport Limited, Newcastle Airport, Woolsington, Newcastle upon Tyne, NE13 8BZ, registered under the Companies Act (02077766).
Reason: To ensure that the development does not adversely affect the ability of the air traffic services providers to provide safe and efficient air traffic services in the area of the development by means of air traffic control radar.
DIRECTION TO DEEM PLANNING PERMISSION TO BE GRANTED UNDER SECTION
90 OF THE TOWN AND COUNTRY PLANNING ACT 1990
CONSTRUCTION AND OPERATION OF AN OVER 50MW AND UP TO 56MW WIND
GENERATING STATION AT RAY ESTATE, NORTHUMBERLAND
Definitions
References in these conditions to the carrying out or implementation of any scheme,
or the carrying out of work in accordance with any details, plan, statement or
methodology, approved by the local planning authority shall be construed as permitting
the scheme to be carried out or implemented or the work to be carried out subject to
such amendments or modifications of the scheme, details, plan, statement or
methodology as originally approved as shall have been agreed in advance in writing by
the local planning authority, and as permitting the local planning authority to approve
one scheme in place of another relating to the same matters.
In these conditions unless the context otherwise requires –
‚bank holiday‛ means a day that is, or is to be observed as, a Bank Holiday or a holiday
under the Banking and Financial Dealings Act 1971
‚BS 4142: 1997‛ means British Standard 4142:1997 – Method for rating industrial
noise affecting mixed residential and industrial areas
‚commissioning‛ means the date on which the Development first supplies electricity
on a commercial basis
‚emergency means‛ circumstances in which there is reasonable cause for
apprehending imminent injury to persons, serious damage to property or danger of
serious pollution to the environment
‚schedule 1 raptors means‛ any raptor defined under part I or part II or schedule 1 to
the Wildlife and Countryside Act 1981 (as amended)
‚the development‛ means the onshore windfarm generating station on land at Ray
Estate near Kirkwhelpington, Northumberland
‚the local planning authority‛ means Tynedale District Council or Northumberland
County Council as appropriate and their successors
Commencement of development
1. The development hereby permitted shall be commenced within 5 years from
the date of this decision.
Reason: To strike a balance between ensuring that the development is constructed in a timely
manner; allowing the Company an appropriate degree of flexibility as regards the timing,
finance and other arrangements for its construction, including the resolution of issues arising
from the need to mitigate potential radar problems; and minimising the impact of any period of
uncertainty for those who may be affected by the existence of the deemed planning
permission pending the company’s decision to begin construction. The default planning
permission duration of 3 years provided for in s.91 is not considered sufficient for all these
purposes.
Duration of permission
2. The generation of electricity from the development shall cease no later than
25 years after the first commercial generation of electricity at the site, after
which time the site shall be restored in accordance with the approved
Decommissioning and Site Restoration Scheme as referred to in condition 4
below.
3. The operator shall, within one month of the first commercial generation of
electricity from the wind farm, notify the local planning authority in writing of
the date on which the first commercial generation of electricity occurred.
Reason: To comply with the requirements of section 91 of the Town and Country Planning Act
1990.
Decommissioning and Site Restoration
4. No later than 3 years before the expiry of the planning permission hereby
deemed to be granted, a Decommissioning and Site Restoration Scheme shall
be submitted to the local planning authority. The scheme shall, in particular,
include the methods and measures and timetable to secure the removal of
the turbines, turbine bases, buildings, site compound and related mitigation
measures arising from the proposed operations. The scheme shall be
implemented as approved.
5. If any turbine fails to produce electricity for a continuous period of 12 months,
the turbine and any ancillary equipment shall be dismantled and removed from
the site (unless the developer has demonstrated to the local planning
authority that the turbine is under repair and that there is a remedy) in
accordance with a restoration plan, which shall include a time-table for the
works. The restoration plan shall be submitted to the local planning authority
within 2 months after the expiry of the 12 month period; and the relevant
turbine shall thereafter be removed and that part of the site shall be restored
in accordance with the approved scheme.
Reason: To ensure the site is not allowed to become derelict after the cessation of electricity
generation.
Details of the development
6. No development shall take place until details of the external appearance of the
turbines, including blade configuration, direction of rotation, design, colour and
surface finishes, have been submitted to and approved in writing by the local
planning authority. The development shall be carried out in accordance with
the approved details.
7. No development shall take place until a scheme for the lighting of the turbines
and other parts of the site has been submitted to the local planning authority
and approved in writing. The scheme shall be implemented as approved.
8. No development shall take place until details of the proposed temporary site
compound, and a scheme for its subsequent clearance and restoration, has
been submitted to and approved in writing by the local planning authority.
The details shall include means of enclosure; the siting of temporary buildings;
areas for the storage of materials and machinery and operative parking; oil/fuel
and chemical storage and related measures for secure bunding; and any
proposals for temporary lighting. The compound shall be constructed and laid
out in accordance with the approved details and within a period of 12 months
of the final commissioning of the wind farm it shall be restored in accordance
with the approved restoration scheme.
9. No development shall take place until a scheme containing details of turning
facilities for all vehicles likely to enter the site, and a timetable for its
implementation, has been submitted to the local planning authority and has
been approved in writing. The scheme shall be implemented as approved.
10. No development shall take place until detailed access and road improvement
drawings, and a timetable for the implementation of access and road
improvement works, have been submitted to the local planning authority and
agreed in writing. The details shall be implemented as approved.
11. No development shall take place until the location of the sub-station building
and its compound, together with a scheme for its external treatment, its
access from the public highway and its landscaping, including a timetable for
implementation, has been submitted to the local planning authority and
approved in writing. The development shall be carried out in accordance with
the approved details.
12. No development shall take place until details of the height, siting, appearance
and construction of all permanent means of enclosure to be erected on the
site, including a timetable for implementation, have been submitted to the
local planning authority and have been approved in writing. The development
shall be carried out in accordance with the approved details.
13. All interconnecting cabling between the turbines and the sub-station within
the site shall be installed underground apart from where it joins to the
appropriate apparatus.
14. No development shall take place until details of the alignment, width,
construction, surface treatment and drainage of new temporary and
permanent tracks, lay down and storage areas, turbine bases, crane standings
and cable routing (including any necessary mitigation measures) have been
submitted to the local planning authority and have been approved in writing.
Where access tracks cross peat that is 0.5 metres in depth, or greater,
measures to protect the peat and to safeguard water movement shall be
submitted. The details shall also include a timetable for implementation and
measures for the restoration of temporary works. The development shall be
carried out in accordance with the approved details.
15. No development shall take place until the exact siting of the turbines has been
submitted to the local planning authority and has been approved in writing.
Thereafter the turbines shall be erected in the approved positions subject to a
micro-siting tolerance not exceeding 30 metres.
Reason: To enable the local planning authority to exercise reasonable and proper control over
the design and appearance of the Development.
Construction Hours
16. No construction activities shall be carried out on the site on any Sunday or
Bank Holiday or outside the hours of 08:00 to 18.00 Mondays to Fridays, or
outside the hours of 08:00 to 13.00 on Saturdays.
Reason: To ensure reasonable and proper control to be exercised over noise during
construction activities. Construction Method Statement
17. No development shall take before a Construction Method Statement has been
submitted to the local planning authority and has been approved in writing.
Thereafter construction works shall be carried out in accordance with the
approved Statement. The Construction Method Statement shall include the
following details:-
(a) dust management;
(b) measures to secure the cleaning of site entrances, bound or covered site tracks
and the adjacent public highway including the provision of a wheel wash facility
in an agreed location for vehicles leaving the site;
(c) measures for the protection of water courses, including submission of details
of watercourse engineering works and crossing points, and mitigation
measures to protect ground water and soils;
(d) sewage disposal;
(e) noise management during the construction phase;
(f) vibration control;
(g) any temporary site illumination;
(h) the disposal of surplus materials;
(i) any temporary on-site diversions of public rights of way, or temporary closures
of Access Land, and associated signage;
(j) the protection of private water supplies; and
(k) a construction schedule and programme of the proposed works.
Reason: To ensure that satisfactory measures are in force so as to alleviate any impact dust
and dirt may have on the local environment during construction and to protect watercourses.
Environmental Management Plan
18. No development shall take place until an Environmental Management Plan
covering all aspects of the construction process has been submitted to the
local planning authority and has been approved in writing. The development
shall be carried out in accordance with the approved details.
Reason: To ensure that satisfactory measures are in place to protect the environment.
Transport Management Plan
19. No development shall take place until a Transport Management Plan has been
submitted to the local planning authority and has been approved in writing.
The plan shall include details of routing; a schedule and timing of abnormal
traffic movements; details of escorts for abnormal loads; details of temporary
warning signage; and proposed mitigation measures. The Transport
Management Plan shall be implemented as approved.
Reason: To reduce the impact of traffic on the local population and other users of the road
network.
Archaeology
20. No development shall take place until an Archaeological Scheme of Works has
been submitted to the local planning authority and has been approved in
writing. The scheme shall be implemented as approved.
Reason: To allow the surveying of the site for archaeological artefacts and the recovery of any
important archaeological discovery before the construction of the main Developments begins.
Ecology
21. No development shall take place until the developer has appointed an
Ecologist Clerk of Works to oversee site preparation works and the
construction of the wind farm having particular regard to the requirements of
the planning conditions relating to ecology and to address any other ecological
matters that might arise; the appointed person, or a successor to that person,
shall remain in post for the duration of the construction works.
22. No development shall take place until a Habitat Management Plan has been
submitted to the local planning authority and in consultation with Natural
England has been approved in writing. The Habitat Management Plan shall be
implemented as approved.
23. No development shall take place until a scheme for checking and updating the
protected species surveys submitted as part of the Environmental Statement,
including methodology, implementation and timing, has been submitted to
and approved in writing by the local planning authority in consultation with
Natural England. The updated survey results shall be submitted to the local
planning authority with a programme of works to mitigate any significant
effects which shall be implemented following the written approval of the local
planning authority in consultation with Natural England.
24. No development shall take place until pre-construction surveys for Schedule 1
raptors have been undertaken within 500 metres of any proposed
construction works and the results have been submitted to the local planning
authority. If any Schedule 1 raptors are found nesting, mitigation measures
shall be agreed in writing by the local planning authority in consultation with
Natural England in advance of any construction work. The agreed mitigation
measures shall be implemented as approved.
25. In the bird breeding season preceding the commencement of construction
work on the proposed wind farm site, ornithological monitoring at the site
shall be undertaken in accordance with a methodology previously submitted
to and approved in writing by the local planning authority in consultation with
Natural England. The results of the survey shall be submitted to the local
planning authority within a period of three months following the end of the
monitoring period.
26. No tree felling, vegetation removal or ground clearance shall be undertaken
between 1 March and 31 August unless the on-site Ecologist Clerk of Works
has first confirmed to the local planning authority in writing that no birds’ nest
which is being constructed or is in use, or live bird’s egg or bird will be
damaged or harmed. In any instance where any active nest site is identified
as that belonging to a species protected under Schedule 1 of the Wildlife and
Countryside Act 1981 (as amended), no construction works associated with
the development shall take place within 500 metres of the site identified until
dependant young have moved from the nest site or the nest has been
abandoned. If an active nest of any other species is found, the on-site
Ecologist Clerk of Works shall determine measures to protect it from damage
and to minimise disturbance while adults and dependent young are present.
27. None of the turbines within the development shall commence operation
between 1 March and 31 August unless the results of a breeding bird survey
carried out in accordance with a methodology approved in advance by the
local planning authority demonstrate that there would not be a significant risk
to breeding birds from the operation of the wind farm.
28. Before the first commissioning of the wind farm a specification for the long
term post construction monitoring of bats shall have been submitted to the
local planning authority and have been approved in writing in consultation with
Natural England. The approved scheme of monitoring shall be undertaken
annually for a period of 10 years following the first commercial generation of
electricity, unless, following any two year consecutive period demonstrating a
lack of significant bat activity, the local planning authority agrees that
monitoring shall cease. Annual monitoring reports shall be submitted to the
local planning authority within three months of the end of the monitoring
period to which they refer.
29. Before the first commissioning of the wind farm a methodology for a post
construction ornithological monitoring scheme shall have been submitted to
the local planning authority and in consultation with Natural England have
been approved in writing. The approved scheme of monitoring shall run for a
period of three years and shall be implemented as approved. Annual
monitoring reports shall be submitted to the local planning authority within
three months of the monitoring period to which they refer.
30. No development shall take place until a hen harrier monitoring and
management plan has been agreed in writing with the local planning authority
in consultation with Natural England. The management plan shall provide for
surveys to determine the presence of displaying and nesting birds, location of
any nests and sensitivity to collision; the duration of and method of
monitoring; and measures for mitigation in the event that the local planning
authority identifies a potentially suitable hen harrier nesting habitat within 500
metres of the wind farm. The hen harrier management plan shall be
implemented as approved.
Reason: To ensure reasonable and proper control to be exercised over construction activities at
the site so that it does not have an undue adverse effect on habitats or on birds or bats using
the site.
Borrow Pits
31. No development shall begin until details of the proposed borrow pits, for the
extraction of stone to be used in the proposed development, have been
submitted to the local planning authority and have been approved in writing.
The development shall be carried out in accordance with the approved
details. These details shall include:-
(a) the location and proposed extent of the borrow pits;
(b) volume and type of material to be extracted;
(c) timescale for the works;
(d) method of working including details of plant to be used;
(e) mineral stockpiling;
(f) soils handling and storage;
(g) noise and vibration management;
(h) dust management;
(i) blasting;
(j) restoration and aftercare proposals for a period of five years; and
(k) surface and ground water management.
None of the extracted materials shall be removed from the site; and no
materials shall be brought on to the site to be deposited into, or used in the
restoration of, the borrow pits.
Reason: To maintain the integrity of the borrow pits.
Noise
32. The rating level of noise from the combined effects of the wind turbine
generators on the wind farm hereby approved shall not at any time exceed the
levels derived according to the procedure set out below (‘Maximum permitted
noise levels’) at any dwelling which is in existence (or for which planning
permission has been granted) at the date of this permission. The noise levels
shall be measured and calculated in accordance with the Guidance Notes at
Appendix A to these conditions.
Maximum permitted noise levels
The noise level dB (LA90, 10minutes) at any dwelling shall not exceed:-
The Reference Background Noise Level at that dwelling, at any stated wind
speed, plus 5dB or a level of ‘x’ dB, whichever is greater.
The values of ‘x‘ are as follows:-
(i) For properties where the occupier has no financial involvement with the
wind farm, the value of ‘x’ is 43dB LA90,10minutes between the hours 23.00
– 07.00 and 40dB LA90,10minutes at all other times;
(ii) For properties where the occupier has financial involvement with the
wind farm, the value of ‘x’ is 45dB LA90, 10minutes at all times.
The maximum permitted noise levels at any location are to be derived from
the Reference Background Noise Levels (LA90, 10minutes) set out in Tables A and
B below:-
Table A - Reference Background Noise Levels dB(LA90, 10 minutes
) 23:00 hours – 07:00 hours
Wind speed at 10 metres above ground level - metres/second
Location 1 2 3 4 5 6 7 8 9 10 11 12
Ottercops 27 27 27 27 28 30 31 33 36 39 42 45
Ray Cottage 26 26 26 26 28 31 34 38 41 43 46 49
Summit Cottage 20 22 23 25 26 28 30 32 34 36 39 41
Lough House 30 31 32 33 33 34 35 36 38 40 42 45
Wishaw 23 23 23 23 24 25 27 28 30 33 35 38
Any other dwelling 25 26 26 29 30 32 33 35 37 39 42 44
Table B – Reference Background Noise Levels dB(L
A90, 10 minutes
) 07:00 hours – 23:00 hours
Wind speed at 10 metres above ground level - metres/second
Location 1 2 3 4 5 6 7 8 9 10 11 12
Ottercops 30 30 30 33 35 37 39 40 42 44 45 46
Ray Cottage 30 30 30 30 31 33 36 38 41 43 46 49
Summit Cottage 19 22 25 27 29 32 34 35 37 39 41 42
Lough House 30 30 30 34 35 36 37 39 40 42 43 46
Wishaw 26 26 26 26 28 31 34 37 40 44 48 51
Any other dwelling 27 28 28 30 32 34 36 38 40 42 45 47
Note: Wind speed at 10 metres above ground level means the wind speed at 10 metres above local ground level at a position to be agreed with the local planning authority, either measured at this position or calculated from measurements at another position by means of a calculation procedure to be agreed with the local planning authority.
33. No development shall take place until a scheme for the monitoring of the
noise of the operational wind turbines, to confirm compliance with the noise
limits set out in Condition 32 above, has been submitted to the local planning
authority and has been approved in writing. The noise monitoring survey shall
be carried out as approved and the results submitted to the local planning
authority within the timescale agreed in the noise monitoring scheme.
34. No development shall take place until the wind farm developer/operator has
notified the local planning authority of a nominated representative to act as a
point of contact for local residents and liaison with the local planning authority
in relation to any complaints made about noise and any other matters arising
during construction, operation and decommissioning of the wind farm.
35. At the reasonable request of the local planning authority, following a
complaint relating to noise from the wind turbines, the operator of the
development shall employ a suitably qualified independent consultant to
measure and assess the level of noise emissions resulting from the operation
of the wind turbine generators. The assessment shall be undertaken in
accordance with a methodology to be agreed in writing by the local planning
authority and in accordance with the procedures described in the Guidance
Notes at Appendix A to these conditions.
36. (i) Not later than the first commercial generation of electricity, and for a
period of three years thereafter, the wind farm operator shall log wind
speed (in metres per second) and wind direction data (in degrees from
north) for each ten-minute period at a grid reference location previously
approved in writing by the local planning authority.
(ii) After the three year period the same data shall be taken from turbine
nacelle anemometers and wind vanes or similar and shall be retained for
a period of not less than 12 months.
(iii) At the reasonable request of the local planning authority the recorded
data at 10 metres height above ground level, at the agreed location, and
relating to any periods during which noise monitoring took place, or any
periods when there was a specific noise complaint, shall be made
available to the local planning authority.
(iv) Where wind speed is measured at a height other than 10 metres above
local ground level the wind speed data shall be converted to 10 metres
height, accounting for wind shear, by a methodology which shall be
submitted to and approved in writing by the local planning authority.
(v) At the reasonable request of the local planning authority the wind farm
operator shall provide, within 28 days of the request, a list of ten-minute
periods during which any one or more of the turbines was not in normal
operation. This information will only be required for periods during
which noise monitoring is being undertaken in accordance with other
conditions attached to this permission.
(vi) For the avoidance of doubt ‘normal operation’ is defined in the Guidance
Notes at Appendix A to these conditions.
Reason: To ensure the proper control of noise during the operation of the Development and to
ensure that any complaints on the grounds of noise are properly dealt with so as to reduce the
impact of the Development on local residents.
Shadow Flicker and Television Reception
37. If, whether through micro-siting or any other reason, the proposed position of
any turbine differs materially from that shown on the application plan (as
amended by the deletion of Turbines 17 – 20) then prior to the erection of that
turbine a study shall be undertaken by a suitably qualified person to assess its
impact in terms of the potential for shadow flicker on any residential and other
properties that would be inhabited by people at such times as any such
problem may occur. The study, which shall also identify any necessary
mitigation measures, shall be submitted to the local planning authority and
approved in writing before the turbine is erected; and any agreed mitigation
measures shall be implemented prior to the first commercial generation of
electricity by the relevant turbine. Subject to condition 38, the mitigation
measures shall remain effective thereafter.
38. No development shall take place until a scheme detailing the protocol for
communicating, evaluating and responding to (including by mitigation
measures further to or different from those put in place under condition 37)
any complaints of shadow flicker resulting from the development, including
remedial measures, has been submitted to the local planning authority and
has been approved in writing. Operation of the turbines shall take place in
accordance with the requirements of the approved scheme.
39. No development shall take place until a scheme designed to safeguard
existing television reception quality arising from the operation of the wind
turbines has been submitted to the local planning authority and has been
approved in writing. The scheme shall, in particular, provide for a base line
survey of residential properties that might be affected; and a protocol for
dealing with any complaints arising from the operation of any of the wind
turbines and for the identification and implementation of necessary mitigation
measures to be undertaken in accordance with details and a time-table
previously submitted to and approved in writing by the local planning
authority.
Reason: If during the operation of the Development complaints arise because of shadow
flicker or interference to television reception that they are properly dealt with so as to reduce
the impact of the Development on local residents.
Appendix A - Noise Conditions Guidance Notes
The following paragraphs are based on steps 2 - 6 specified in Section 2 of the Supplementary
Guidance Notes to the Planning Obligation contained within pages 102 et seq of ‘The
Assessment and Rating of Noise from Wind Farms, ETSU-R-97’ published by ETSU for the
Department of Trade and Industry. It has been adapted in the light of experience of actual
compliance measurements.
NOTE 1
Values of the LAF90,10minute noise statistic should be measured at the affected dwelling
using a sound level meter of at least IEC 651 Type 1 quality. This should be fitted with a ½"
diameter microphone and calibrated in accordance with the procedure specified in BS 4142:
1997. The microphone should be mounted on a tripod at 1.2 - 1.5 m above ground level, fitted
with a two layer windshield or suitable equivalent, and placed in the vicinity of, and external to,
the dwelling. The intention is that, as far as possible, the measurements should be made in
‘free-field’ conditions. To achieve this, the microphone should be placed at least 3.5m away
from the building facade or any reflecting surface except the ground.
The LAF90,10minute measurements should be synchronised with measurements of the 10-
minute average wind speed and with operational data from the turbine control systems of the
wind farm or farms.
The wind speed and wind direction and a note of all 10 minute periods when one or more of
the turbines was not operating normally should be provided to the consultant to enable an
analysis to take place.
The precise definition of ‘normal operation’ should be agreed in writing with the local authority
prior to the commencement of the development on the basis of data available but should
generally be taken to mean when the turbine power output is not significantly different from
the reference power curve, which may be a noise optimised power curve if appropriate, using
the nacelle anemometer.
In the interests of commercial confidentiality no information is required to be provided for
individual turbines or on the nature of any abnormality or for any period during which noise
monitoring is not taking place.
NOTE 2
The noise measurements should be made over a period of time sufficient to provide not less
than 100 valid data points. Measurements should also be made over a sufficient period to
provide valid data points throughout the range of wind speeds considered by the local authority
to be most critical. Valid data points are those that remain after the following data have been
excluded:-
all periods during rainfall;
all periods during which wind direction is more than 45 degrees from every line from each
of the turbines and the measurement position;
all periods during which turbine operation was not normal.
A least squares, ‘best fit’ curve should be fitted to the data points.
NOTE 3
Where, following a complaint to and in the reasonable opinion of the local planning authority,
the noise emission contains a tonal component, the following rating procedure should be used.
This is based on the repeated application of a tonal assessment methodology.
For each 10-minute interval for which LAF90,10minute data have been obtained, a tonal
assessment is performed on noise emission during 2-minutes of the 10-minute period. The 2-
minute periods should be regularly spaced at 10-minute intervals provided that uninterrupted
clean data are obtained.
For each of the 2-minute samples the margin above or below the audibility criterion of the tone
level difference, Ltm, is calculated by comparison with the audibility criterion given in Section
2.1 on page 104 et seq of ETSU-R-97.
The margin above audibility is plotted against wind speed for each of the 2-minute samples.
For samples for which the tones were inaudible or no tone was identified, substitute a value of
zero audibility.
A linear regression is then performed to establish the margin above audibility at the assessed
wind speed. If there is no apparent trend with wind speed then a simple arithmetic average
will suffice.
The tonal penalty is derived from the margin above audibility of the tone according to the figure
below.
0
1
2
3
4
5
6
0 1 2 3 4 5 6 7 8
Tone Level above Audibility (dB)
Pe
na
lty
(d
B)
The rating level at each wind speed is the arithmetic sum of the wind farm noise level, as
determined from the best fit curve described in Note 2, and the penalty for tonal noise.
The rating level shall be determined for each wind speed. If the values lie below the maximum
values of turbine noise indicated by the table in the annex to these conditions then no further
action is necessary.
NOTE 4
If the rating level is above the limit, a correction for the influence of background noise should be
made. This may be achieved by repeating the steps in Note 2, with the wind farm switched
off, and determining the background noise at the assessed wind speed, Lb. The wind farm
noise at this speed, Lw, is then calculated as follows where La is the measured level with
turbines running but without the addition of any tonal penalty:
Lw = 10log 10
La
10 -10
Lb
10
The Rating level is re-calculated by adding the tonal penalty (if any) to the wind farm noise. If
the rating level lies below the values indicated from the table in the annex then no further
action is required.
If the rating level exceeds any of the turbine noise levels in the table in the Annex then the
development fails to comply with the relevant Planning Condition.
