As a result of the Den Brook Valley Judicial Review Team’s legal actions, the Secretary of State has quashed the unlawful planning permission for the mid Devon wind farm. The application will now have to go back to the Planning Inspectorate to determine the next step.

The Secretary of State for Communities and Local Government conceded the Den Brook Team’s appeal on the noise grounds alone, but the Court of Appeal granted permission to appeal on the other ground, namely that the planning inspector as part of the overall planning balance must consider the actual likely electricity contribution of the particular site. The Den Brook team plans to submit a firm and robust argument that any future Public Inquiry to re-determine the case must address these enduring issues because of the significant impact on the neighbours, on health and on local communities nearby.

The case sets a precedent that wind farm neighbours have the right to raw environmental data. As the Den Brook team discovered, the noise measurements and subsequent data analysis by the developer, Renewable Energy Systems [RES], contained inaccuracies. Even though RES commissioned a leading independent noise expert to confirm the reliability of their own noise assessment, it is now beyond doubt that the assessment contained errors.

For three years, RES refused to release the vital noise assessment data to the Den Brook team.  Amongst other reasons, RES maintained that the Den Brook team were incapable of assessing the data appropriately.  However, at this point, in spite of only having received part of the data, the acoustician for the team has uncovered errors demonstrating that the developers significantly underestimated the noise impact of this wind farm on neighbouring homes.

RES, which currently admit to only one of the errors discovered, are attempting to reassure the Den Brook Valley neighbourhood that the error is of little consequence. RES claim their assessment methodology was “appropriate at the time”; although they appear to concede that Den Brook’s methodology is more robust. Therefore, the Den Brook team look forward to presenting the case, and the concrete evidence in support, to any forthcoming Public Inquiry.

As yet, the Den Brook team has not received the remaining requested noise and wind speed data despite RES director, Rachel Ruffle, stating quite categorically that she fully understood the force of High Court Justice Mitting’s criticisms of RES for not supplying the promised data. Ms Ruffle has stated, “in similar future situations RES will make raw noise data available to any inquiry participant who seeks them”. In light of the High Court’s statement and Ms Ruffle’s response, Den Brook eagerly await the remaining data and confirmation that RES will honour the ruling and their policy.

Claire Hodgson, a former solicitor and close neighbour to the proposed wind turbines, who originally supported the development, now says,  "RES’ repeated failure to provide all the information we requested has left me with no option but to file a formal complaint.  RES said they had taken on board the Judge's criticisms, but so far there is no evidence of this. This does nothing to rebuild my trust."

The developer’s defective noise assessment and the reluctance to share the data has cost council tax payers and local communities several hundred thousand pounds in the process of bringing to light these critical and far from “miniscule” errors within RES’ noise assessment. It seems unjust that others should suffer the financial burden of the developer’s oversight.

We thank all our supporters, both local and national, for their overwhelming and unswerving help. The Den Brook Review Team continues to do all it possibly can in order to protect just and democratic principles, and to ensure that ordinary people have a voice in the democratic process.

Contact:    The Denbrook Judicial Review Team,
Email:      This e-mail address is being protected from spam bots, you need JavaScript enabled to view it                                                                  
Website:   www.denbrookvalley.co.uk

Further information:

The Den Brook Review team appealed against an earlier judgement in the case heard at the High Court in March this year. A full copy of Mr Justice Mitting’s judgement for that hearing can be found by clicking on the following link:
http://www.bailii.org/ew/cases/EWHC/Admin/2008/637.html    
Attention is drawn to the following paragraphs from Mr Justice Mitting’s judgement:
7. The developer refused to produce the raw data for a variety of reasons, which for myself I find thoroughly   unconvincing. First, commercial confidentiality; it is difficult to see how there could conceivably be any commercial confidentiality in the matter of wind noise anywhere, let alone on this site. Secondly, that Mr Hulme, unaided, would not understand them; that may well be so, but he had indicated a willingness to obtain expert advice to permit him to do so. Thirdly, that the developer was unwilling to spend professional time and cost in assisting Mr Hulme to understand the raw data; that too was not a sensible argument, because all that he sought was the data itself and not any explanation of it.
8. The developer's attitude to the disclosure of this information, as can readily be understood, might excite suspicion as to their motive in insisting that it would not be disclosed.
9. Mr Forsdick, who appears today for Mr Hulme, submits that the denial of access to the raw data was a denial of natural justice to Mr Hulme such as, in the end, to vitiate the decision made by the inspector on the question of noise. He accepts that there is no traditional natural justice challenge here because the inspector did not see the raw data either, and so did not take into account anything that was not made available to Mr Hulme.
Justice Mitting’s judgement has now been overturned. This is partly as a result of the Den Brook Judicial Review Team’s submission of evidence to the Appeal Court following discovery of flaws in RES’ assessment of the background noise and wind speed data. RES only released the data in May; subsequent to the hearing in March this year.
The Consent Order, precluding the need for an appeal hearing, was proposed and agreed by the Secretary of State and has quashed the unlawful planning permission given to RES, on appeal, for their proposed Den Brook Valley wind farm. The matter will now revert to the Government Inspectorate for re-determination.
Disagreement remains between the Den Brook Review team and RES as to the significance of the errors discovered. The court is not in a position to resolve the disagreement but only to determine the legality of the position.
It is the Den Brook Review team’s view that not only did RES conduct their noise assessment in breach of Government guidance in the form of the 1997 ETSU-R-97 document, but that any assessment for noise impacts from wind turbines urgently needs to go beyond the more than 10 year old guidance.
If neighbours to the current generation of huge turbines are to be adequately protected from potential noise and health damaging impacts, there needs to be far more thorough assessment based on current understanding rather than reliance on the outdated and un-revised guidance. The ETSU-R-97 guidance does not address the major noise problems that are currently being experienced by an ever-increasing number of wind farm neighbours. It beggars belief that the wind industry consistently deny wind turbine noise is an issue – one has to wonder at their humanity.
The Den Brook Review team are determined, through evidence and valid argument, to persuade the Government and the Inspectorate [and maybe even the wind industry] that it is not in anyone’s real interests to continue to ignore people’s rights to a proper night’s sleep and the peaceful enjoyment of their homes. Indiscriminate siting of industrial scale wind turbines, without comprehensive and trustworthy noise assessments, do nothing to reassure the public at large of the validity of planning decisions that should balance any benefits with the potential harm that may have to be endured over the coming 25 year lifespan of modern huge wind turbines.

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