Case-study : wind mills - solution - swedish answers

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?

The windmill company (the operator) has a right to standing either as appellant or as opponent. On the other hand the land owner only has standing in the capacity of operator.

If a decision is appealed to the Court, the authority that decided in first instance has standing as opponent to the appellant (disregarded if their interests collide or not).

Neighbors likely to be affected – determined case by case and depends partly on the landscape, how open or shut it is – are regarded as parties. Neighbors living up to 300 – 400 m are regularly regarded as having standing. If they live further away they probably will not. In building permits cases (according to the Plan and Buildings Act) the Supreme Administrative Court accept appellants that own land in direct connection to the property where the mill will be built – even if they can’t observe it from where they live.

The municipality where the mill is to be built (in permit cases according to the Environmental Code the Municipality now must give its explicit consent to wind mill parks), and some central authorities as the National Environmental Protection Agency have standing according to law in order to regard general interests.

In permits cases also NGOs have standing– and with the restriction that the organization now shall have at least 100 members (earlier the restriction said 2 000 members) and it shall have existed for at least three years. In a notification case, such as this, a NGO has standing only if a protected area is affected.

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?

We determine this ex officio but can have a rather practical view. If some neighbors obviously have standing and the case shall be handled anyway, we in practice can disregard from making a thorough examination – that could result in that some are not regarded as having standing.

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?

We have guidelines from the National Board of Housing, Building and Planning and the National Environmental Protection Agency. Those guidelines are rather old (from 1995) and especially regarding wind mills regularly mentioned but often not taken in account of (700 m if 1 MW and 200 m if 0,25 MW).

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.?

We have different kinds of guidelines, e.g. road traffic, airports, railway traffic, industry. These values differ and daytime a higher level is accepted (The guidelines for noise emissions from industrial plants states, in residential areas, 55 dB(A) during daytime, 45 dB(A) during evening and daytime during weekends, and 40 dB(A) by night). The noise emissions from wind mills in practice are limited to 40 dB(A) day and night. The guidelines related to noise are respected in quite another way than the recommendations on so called security zones.

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?

The Court focus on issues that are of main interest but that can be difficult to detect in a vast material. Expert authorities and others who take part in the proceedings are very often helpful in pointing out where the critical part of the EIA is. In this case it´s obviously noise that is the key issue and if the study seems incorrect or inadequate, the Court imposes the applicant to complete the EIA.

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?

It depends on if it is likely that the applicant is able to take the appropriate actions within the economical and technical frames of the project.

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?

In a case like this there is no preconditions in the legislation.

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?

A new operator can take over the right to operate the mill but normally has to notify the authorities. Conditions can be altered later on. The authorities involved in supervision of the operation as well as the EPA can initiate that procedure.

9. To what extent do you/can you take into account other windmills, planned or existing, when analyzing the permissibility?
-It is definitely taken into account that the environment is already affected by other existing windmills. Planned windmills can also be taken into consideration if the planning has reached a level where it is likely that the mills will actually become a reality.

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?
-Yes, but minor deviations may be allowed.

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?
-Yes, such a procedure is accepted within reasonable limits.

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?

-No.