In May this year the Institute of Acoustics (IoA) published a study, A Good Practice Guide to the Application of ETSU-R-97 for the Assessment and Rating of Wind Turbine Noise (hereafter Good Practice Guide) on how to assess the probable noise impacts on neighbours of a proposed wind power installation. REF has a long established interest in this field, which bears directly on public acceptance of wind power, and we submitted Freedom of Information (FoI) requests to both DECC and the IoA. The responses we have received to date are published here.
Our concerns included
• The lack of public domain evidence supporting the conclusions drawn by the IoA authors concerning the accuracy of turbine noise predictions at dwellings near to proposed wind turbines
• The lack of a reasoned response by the IoA authors to the material submitted in the consultation phase, such that it is impossible to tell why certain technical objections to the IoA’s conclusions on wind turbine noise impacts were not taken into account
• The fact that the Secretary of State for the Department of Energy and Climate Change (DECC) endorsed the Good Practice Guide immediately on publication without any independent checks that the guidance was fit for purpose or complied with the terms of reference DECC had set for the exercise.
The endorsement by DECC means that the Good Practice Guide is a material consideration with significant weight in planning decisions. Furthermore, the Planning Practice Guidance for Renewable and Low Carbon Energy, issued by the Department of Communities and Local Government in July 2013, refers to the IoA guidance as representing current good practice in the wind industry (see paragraph 30, DCLG, Planning practice guidance for renewable and low carbon energy July 2013). Thus, any technical and procedural flaws in the Good Practice Guide itself, and in the process by which it was drawn up are a matter of critical importance, not least to neighbours who may be affected by decisions, perhaps flawed decisions, based on the IoA’s guidance.
Because of these concerns REF submitted FoI requests to both the Institute of Acoustics and to DECC.
In our letter to the IoA we wrote:
This is a request for data under the FOI/EIR regulations. Please provide all emails, letters, correspondence, minutes and notes of meetings, reports and data relating to the recent consultation on the Good Practice Guide on the application of ETSU-R-97 for wind turbine noise assessment.
To short circuit any issues regarding the IoA being subject to such requests, I would point out that the IoA GPG was produced as a result of a Government request and that public money was used in its production. As such, it is our belief that it falls within the remit of FOI/EIR legislation.
And to DECC, we wrote:
This is a request for data under the FOI/EIR regulations.
1. Please provide all emails, letters, correspondence, agenda, minutes and notes of meetings, reports and data relating to the recent Institute of Acoustics (IoA) consultation and preparation of a Good Practice Guide (GPG) on the application of ETSU-R-97 for wind turbine noise assessment.
2.Please provide all data relied upon and evaluations carried out by DECC or any other Government department which underpinned the Secretary of State's conclusion that the IoA GPG is consistent with ETSU-R-97 guidance and limits, and that the IoA GPG is technically sound.
FOI Response from the DECC
DECC’s initial response was to refuse to supply any information on the grounds that our request was ‘manifestly unreasonable’ insofar as gathering the requested material would place a disproportionate burden on departmental resources. To address this point, we repeated the request with a cut-off date of 1 October 2012; that is we sought information following this date.
DECC also refused this request with the exception of a series of emails which can be read here. The bulk of the material was refused on the grounds that it related to unfinished documents, internal communications, commercial information and legal advice provided by DECC’s in-house lawyers.
We sought an internal review of this decision from DECC and received further data yesterday (03.12.13) which included the email from Renewables UK to DECC concerning the guidance. It was this material which presumably informed the front page story in the Daily Telegraph entitled ‘Lobby group ‘influenced wind farm noise report’.
FOI Response from Institute of Acoustics Freedom of Information
The Institute of Acoustics also refused our FoI request on the grounds that they are not subject to the Freedom of Information Act. However, we believed that this was incorrect. It was (and remains) our position that work or guidance that is in part paid for by Government, which is the case with the the IoA Good Practice Guidance, and which becomes incorporated into Government guidance by virtue of being endorsed by a Government department, should be bound by the Freedom of Information Act. We made this point to the Information Commissioner in the following letter:
Dear [Information Commission Office],
Re : Case Reference Number: FER0504055
Thank you for your letter of 24 September, 2013 detailing your reasoning concerning whether the Institute of Acoustics (IoA) is subject to the EIR in their capacity as providers of the new wind farm noise guidance, and giving me this opportunity to respond.
You are right that I am in the process of trying to obtain information concerning the production of the IoA Good Practice Guidance from DECC as well as from the IoA. I have had very limited success to date. However, the emails which have been released seem relevant to the decision the Information Commission has to make as to whether the IoA was under the control of DECC in the production of this Good Practice Guidance so I am sending the file of emails with this letter.
I would also like to draw to your attention the recent publication of the opinion of Advocate General Cruz Villalon in Fish Legal v The Information Commissioner, United Utilities, Yorkshire Water and Southern Water (Case C-279/12) which seems relevant to the issue of defining ‘control’. It seems to me that this opinion supports my case that I should be permitted access to the environmental information I seek.
I believe that the IoA working group was under the control of DECC for the purpose of producing the Guide for the following reasons.
1. Professor Bridget Shield, the President of the IoA in the letter to REF dated 25 April 2013, states that DECC requested the work be done and defined the remit which was ‘not to question or investigate the underlying principles of the ETSU method’. Thus the President of the IoA accepted that the IoA did not have ultimate control over the content of the guidance but was bound by the remit defined by DECC.
2. That DECC defined the acoustic issues that the IoA were and were not permitted to address is also spelled out in the DECC emails at page 34.
3. From the DECC emails, it can be seen that DECC appointed a Good Practice Guide Oversight Group consisting of representatives from DECC, DEFRA and the devolved administrations (see pages 1 and following). I would argue that the use of the word ‘Oversight’ in the committee’s title indicates that DECC was in ultimate control of the Good Practice Guide.
4. The Government Oversight group’s activities were not purely administrative but also covered consideration of such technical issues as the need for guidance on AM (Amplitude Modulation of wind turbine aerodynamic noise) (page 11)
5. The Oversight Group made comments on the content of the Guide while it was in draft form (page 11, page 14, page 19)
6. The Oversight Group considered a strategy to deal with ‘off-scope’ issues that had arisen (page 5) suggesting that what was within and outwith scope of the IoA exercise was a matter for the Government committee rather than the IoA.
7. The DECC Minister of State, Greg Barker said in a House of Commons debate “We are updating the guidance…” [emphasis added], an explicit reference to the production of the IoA Good Practice Guidance (page 12-13) indicating that the Minister believed that the IoA Guidance was under the control of his department.
8. The Oversight Group planned a DECC launch of the Guide (page 14) although later recognised that this would be inappropriate if the IoA Guidance was supposedly independent (page 36).
9. The title of the IoA’s Good Practice Guide was changed at the request of the Scottish Government representative on the Oversight Group to his preferred title (page 27).
I appreciate that the information in the released DECC emails is often opaque but this is because DECC are refusing to release anything more substantive on the grounds that their information relates to unfinished documents and internal communications concerning the formulation of policy (12(4)(d) & (e)) as well as legal advice and commercial confidentiality (12(5)(e) and 12(5)(b) ), etc.
However, the fact that DECC recognises the IoA’s production of the Good Practice Guide is relevant to policy is important in addressing your questions ‘Does it take the place of Central Government?’ / ‘Does it provide a public service?’ The reason that the IoA was asked to produce the Good Practice Guide was that a previous report commissioned by DECC, the Hayes McKenzie 2011 report (see pages 12 & 33 of DECC emails) found that the existing Government noise guidance, ETSU-R-97, which is enshrined in Government policy , was deficient.
However, the reference to ETSU-R-97 in the Government policy, has a footnote which reads
32 All references to ETSU-R-97 in this section should be taken to include any successor or supplementary guidance to it endorsed by the Government. [emphasis added]
You will see in the DECC emails numerous emails referring to ‘endorsement letters’ – see pages 27 – 31 and pages 41 – 44. By endorsing the IoA guide and soliciting endorsements from the devolved administrations, DECC has set in place the adoption of the IoA Good Practice Guidance as part of Government policy for Renewable Energy development.
In the normal course of events, new guidance which becomes Government policy would be subject to FOI/EIR requests. I believe it would be anomalous if the strategy adopted in this case for amending Government policy guidance on wind farm noise – namely, delegating the task to the Institute of Acoustics, while overseeing the process and strictly defining the scope – would permit the environmental information we seek to be withheld. Consequently, I would be very grateful if you would study this further material and reconsider your initial decision.
Unfortunately, the Information Commissioner was not persuaded and decided that the IoA is not a public body under the terms of the FoI Act and the related Environmental Information Regulations (EIR) and as such that he had no powers to adjudicate in this case. We disagree, and are considering our options.
Meanwhile, DECC, who might also be assumed to have the relevant information is still refusing to part with the bulk of that information. However, we have established that DECC has not conducted a ‘detailed technical evaluation’ of the IoA Good Practice Guide.
So the conclusions that we draw are:
a) The technical guidance enshrined in the IoA Good Practice Guide is based on evidence which cannot be tested because it is not in the public domain.
b) The Government has not tested the technical merits of the guidance.
c) The consultation responses, anonymised by the IoA, and made whilst the Good Practice Guide was in draft form may or may not have informed the final guidance.
d) We cannot know what weight the consultation responses had, if any, because the authors of the guidance have not provided a consultation response detailing how they addressed the technical points made by those respondents.
This is clearly a wholly unsatisfactory situation for what has become Government guidance on the assessment of probable wind turbine noise impacts.