Agenda item

Shipdham: Two Wind Turbines at land near Wood Farm: Ecotricity: Application No. 3PL/2004/0313/F (Agenda item 10)

Report of the Head of Legal Services.

Minutes:

The Development Services Manager declared an interest in this item and left the room whilst this item was being discussed.

 

The Committee noted the chronology of events leading up to and since the Inquiries.

 

Following a great deal of technical legal argument, the application had now been referred to the same Inspector at a new Public Inquiry (for which no date had yet been fixed) to resolve the one issue only:  the potential impact of and means of controlling noise.

 

The Committee was now being asked to agree to enter into a Section 106 Agreement which aimed to control noise problems.

 

Tim Leader, the Deputy Chief Executive advised that noise would be a material consideration at the Inquiry.  Therefore it was important that the Council determined whether the draft standards set out in the Section 106 Agreement could actually be achieved at properties affected by noise from the turbines.  This would require acoustic experts to be commissioned to gather the relevant facts and model their implications.

 

In the Deputy Chief Executive’s opinion, a condition was much to be preferred because it would carry with it a more comprehensive, effective and more convenient enforcement framework.

 

Mr Hewett, the Ward Representative, thanked the Deputy Chief Executive for his views.  He and many residents had been pushing for a condition rather than a S106.  There had been public information provided by the residents own legal experts that a S106 could not be enforced.  Mr Hewett suggested that the matter be deferred until the pending Inquiry had run its course.

 

The Deputy Chief Executive advised that there would be no need to sign a S106 at this stage, before the Inquiry.

 

A Member felt that the Ministry of Defence (MOD) had been raising many issues recently for every wind turbine application and asked whether the Council had to take every one into account.  The Deputy Chief Executive explained that the Council was in an unfortunate position to refuse applications on third party representations.  If the MOD put its objections directly to the Council, this Council could ask for an indemnity for its costs.

 

Another Member stated that Breckland Council was still the Planning Authority and was obliged to take back the MODs concerns; he did not think that an indemnity would release the Council from the costs involved.  The Member asked the Officers if the absolute minimum noise level would be an adequate protection for those properties affected.

 

In response, the Deputy Chief Executive felt that the Council had two separate regimes that should protect people residing near windmills.  The first was the planning regime - Circular 11/95 set out what was deemed reasonable.  The second was the statutory nuisance regime.  Whether or not a planning condition was attached to the permission, if it was found that a statutory noise nuisance existed, the Council could then serve the applicant with an abatement notice. 

 

A Member felt that reasonableness was the problem, a condition could only be as good as the policing thereof and the Council must be seen to be able to police the conditions properly.

 

In response to a concern, Members were advised that the Council could include the conditions at the Public Inquiry stage.

 

Concluding the debate, the Committee was asked to vote on whether the matter should be deferred, and it was

 

RESOLVED that the matter be deferred to enable the Council to gather further noise evidence, following which a report be brought to a meeting of the Development Control Committee for determination of whether or not a satisfactory noise environment could be achieved, and , if so, how noise should be controlled.

 

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