Case-Study : wind mills

Facts

A company notified the local environmental authority that it planned to build two wind mills (altogether 2 - 3 MW), on land that was owned by a third person. The notification described the area where the wind mills should be built and the operator attached an analysis on the noise emissions (related to the noise from mills with the power of 2,5 MW). The distance between the two new mills was 1,8 km. The distance to 6 existing mills varies between 1, 4 and 5 km).

Briefly about the Swedish rules (regulated in the Environmental Code and in an ordinance under the Code): Before building wind mills, the tower and rotor blade taller than 50 m or placed near another mill, there is an obligation to notify the local Environmental Authority. For 2 or more windmills, the rotor blade included, taller than 150 m, or placed near a park of wind mills, and for wind mill parks /7 or more/ there is an obligation to apply for license at the County Administrative board (the case handled within this authority by a partly independent body called the Environmental Permits Board). For wind mills that are to be built in water areas, there is an obligation to apply for permit at one of the five Environmental Courts.

The Environmental Authority has to make its decision within six weeks. It can prohibit the operation, approve blankly or add conditions to its approval. In principle it is no criminal offense to break these conditions but the authority can combine the conditions with a penalty sum. In this case the Authority approved and combined the decision with a load of conditions that had to be met during the building and the operation of the mills. The conditions met the practice laid down by the Environmental Court of Appeal. – Handling applications for permit at the Environmental Permits Board or the Environmental Court, there is no fixed time limit.

The decision was challenged by a great number of neighbors who claimed that
the place chosen is not suitable because it is located near a Natura 2000 area. The operation needs a special permit under that scheme and the assessment of implications for the site is not sufficient for such a decision.
the wind mills ought to be seen in relation to six other wind mills close by. All of them should be regarded as a park and thus a permit is required. The wind mills also should be evaluated together with eight other wind mills that are planned to be built in another municipality but in the same neighborhood.
the wind mills will have a very negative effect on the landscape
the area contains vulnerable species of frogs that will be harmed while building the mills and by the transport roads that has to be built
a major population of bats lives in the neighborhood and it’s a risk that they also will be harmed – colliding with the rotor blades. There is no analysis on this problem.
there is a risk that the mills will cause unacceptable disturbances for the residents in the neighborhood because of
shadows
in the winter time, risk for throw of ice
the analysis concerning noise emissions is not sufficient. It does not take into account uncertainties related to the ground conditions. The analysis is related to mills with the power of 2,5 MW mills but the notification says 2 – 3 MW. – In the Environmental Court, they presented a new analysis related to the source noise from mills with the power of 3 MW. This analysis showed that the nearest buildings would be affected by noise exceeding 40 dB (A), equivalent value. That level exceeds what in practice has regarded as harmful to human health and the building thus should be forbidden.
because this area partly is used for recreation, with many summer houses. The expectations for quietness is high and the level of 40 dB (A), according to the guidelines from the Swedish EPA, should be decreased to 35 dB (A),
the wind mills shall be placed closer than 500 meters to dwellings. This is not in accordance with the guide lines adopted by the municipality
The National Energy Authority has all over Sweden pointed out certain areas that it regard as of national interest for wind mills. In this municipality such an area has been pointed out but these wind mills are to be built outside that area.

The operator claimed that their analysis on noise emissions is correct, that the decision contained a provision that regulated the highest level of noise and that they would operate the mills in such a way that these levels were to be respected. The area affected is not such that a lower noise level is required.

The County Administrative board did not alter the decision and its decision was challenged to the Environmental Court. The neighbors withheld the circumstances referred to above – the new analysis on noise was presented.

Questions

Please give an answer to the following questions from the point of view of your domestic law (some of them are similar to the already answered):

1. Who are the parties in such a case? - The company that wants to operate the wind mill, the land owner, the neighbors (if so – all? – They have their dwellings 500 – 2 500 m from the respective wind mill.), the authority that made the first decision, others?

2. Referring to the neighbors: - Does the Court ex officio, or after invocation of the operator, have to make a thorough examination regarding who has standing? Does it make any difference whether some of the appellants obviously have standing and the case shall be scrutinized anyway?

3. Do you have “security zones” or safety areas in relation to environmentally hazardous operations, i.a. wind mills. If so, how do you regard them in a case - What status does these zones have – guiding, binding?

4. Do you have guide lines or binding rules relating to noise emissions/imissions? – If so, does the values differ over time; day time, night time, weekends etc.?

5. How thorough does your Court analyze the EIA or other technical/environmental study, for example regarding noise? If you notice that the emission analysis is based on facts that does not apply or fully apply to the operation that will take place – how does that affect your decision, what can the outcome be?

6. If the analyze shows that the noise emissions will be higher than acceptable, does that affect the permissibility or just indicate that the operator has to take actions in order to respect the level stated in the decision?

7. When considering a case like this, does your legislation set any preconditions relating to ownership etc., stating that the operator actually shall prove his or her right to build and operate?

8. What judicial status does a decision have, giving approval or permit to build and operate a wind mill? Can a new operator take over the rights given in such a decision or does he/she have to notify an authority or apply for a new permit? Can the conditions be altered later on? Who can initiate such a procedure?

9. To what extent do you/can you take into account other windmills, planned or existing, when analyzing the permissibility?

10. Often there is a discussion on the exact localization of the windmills – that the environmental analysis is related to certain coordinates – giving certain values related to noise etc. Does the decision in your country bind the building to coordinates given in the application or notification?

11. The operator’s notification did not relate to a certain model or manufacture – only a span related to the power of the turbine. Do you accept such a procedure or do you require that this information is delivered before the decision?

12. Do you at authority level or at the Court, have any fixed limit of time or mutual that the case should be handled within?