FÄGERSKIÖLD v. SWEDEN
Inadmissible
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
The applicants, Mr Lars Fägerskiöld and Mrs Astrid Fägerskjöld, are Swedish nationals who were born in 1942 and live in Jönköping. They were represented before the Court by Mr H. Sundström, a lawyer practising in Ljungskile. The Swedish Government (“the Government”) were represented by their Agent, Ms I. Kalmerborn of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. In the mid-1980s the applicants bought a property, Hästholmen 1:17, in the municipality of Ödeshög, in the County of Östergötland, for recreational purposes. They have their permanent residence, where they are formally registered, in Jönköping. In 1991 and 1992 the municipality of Ödeshög granted building permits to erect two wind turbines on a property, Hästholmen 10:1, neighbouring the applicants’ property. These wind turbines measured 31.5 metres to the hub of the rotor blades, which had a diameter of 27 metres. The first wind turbine had a delivery of 225 kW (kilowatts) and was built approximately 430 metres from the applicants’ property while the second wind turbine had a delivery of 150 kW and was situated at a distance of roughly 620 metres from the applicants’ property. Apparently, these two wind turbines did not cause any nuisance to the applicants. In April 1998 a third wind turbine was erected on Hästholmen 10:1, at a distance of 371 metres from the applicants’ property. This wind turbine measured 45 metres to the hub of the rotor blades, which had a diameter of 44 metres. Moreover, it had a delivery of 600 kW and was capable of producing approximately 1,100,000 kWh per year (which roughly corresponds to the energy needed to heat between 40 and 50 private households over a one-year period). The wind turbine was owned by the “Hästholmen Joint Wind Association” (Hästholmens Vindsamfällighets-föreningen), which consisted of 1,261 shares, of which the municipality owned 100 shares and several property owners in the area also owned some of the shares. According to the applicants, the wind turbine emitted a constant, pulsating noise and, sometimes, light effects which they found very disturbing and intrusive. For these reasons and because they considered that the new wind turbine had been erected much too close to their property, and without them having been consulted in advance, they complained about it in a letter to the municipality. It turned out that the municipality’s Environment Committee (miljötekniska nämnd) had already granted a building permit for the wind turbine, in November 1997. Before that decision, a geotechnical evaluation of the ground had been carried out and the Swedish Civil Aviation Administration (Luftfartsverket), the Swedish Armed Forces (Försvarsmakten) and the County Administrative Board (länsstyrelsen; hereinafter referred to as “the Board”) of Östergötland had been heard, as well as the owners of the two closest neighbouring properties (situated within 250 metres of the planned location of the wind turbine). None of those consulted had had any objections to a wind turbine being constructed on the property of Hästholmen 10:1. However, in its decision, the Environment Committee had stipulated that the exact location of the wind turbine should be agreed upon in consultation with the municipality’s building unit and the Board before construction began. On 4 May 1998 the Environment Committee received a leasehold contract between the property owners of Hästholmen 10:1 and the Joint Wind Association from which it appeared that the wind turbine had been constructed about 65 metres north-west of the location which had been agreed upon and thus also closer to the inhabited area. On 20 May 1998 the Environment Committee held a meeting, attended by the chairman of the Joint Wind Association, to discuss the situation relating to the wind turbine. It was agreed that the Joint Wind Association should submit a request to the Environment Committee for a change to the building permit so that it was valid for the wind turbine in its present location. The Committee would have to make a completely new assessment, where all property owners within a radius of 500 metres of the wind turbine should be heard, as should, again, the Swedish Civil Aviation Administration, the Swedish Armed Forces and the Board. Consequently, the applicants and all other property owners, tenants and residents within a 500 metres radius of the wind turbine were invited to submit their comments on it. Moreover, on 20 May 1998, the Vestasvind Svenska AB company (the builder of the wind turbine) carried out noise tests of the three wind turbines, together and separately, which were submitted to the Environment Committee but also presented to those, including the applicants, who attended a general meeting on 4 June 1998. According to the results of these tests, the noise levels in respect of the applicants’ property were calculated at 37.7 dB (decibels) from the new wind turbine alone and at 39.4 dB from all three wind turbines together. The tests were carried out in the evening when the wind speed was measured at eight metres per second. On 23 June 1998 the Environment Committee granted a change to the building permit for the wind turbine so that it applied to the present location of the wind turbine. The Committee had observed that several of those heard on the matter had complained about the noise made by the wind turbine. However, it had also noted that, according to the noise tests carried out by the builder of the wind turbine, the noise levels did not exceed 40 dB, which was the recommended maximum level, at any house, except the two closest, where the owners had stated that they were not disturbed by the noise. Still, in order to try to minimise the nuisance perceived by a number of neighbours of the wind turbine, the Committee ordered that certain temporary measures be taken. Hence, the wind turbine should automatically stop if the wind did not exceed a speed of four metres per second and, during the summer months (June, July and August), the wind turbine’s rotor blades should be adjusted to a “less aggressive” angle to reduce the sound level. Moreover, all mechanical sound created by the wind turbine should be eliminated completely and an evaluation of these measures should be carried out no later than 31 October 1998 by the Environment Committee together with the neighbours concerned. Following this evaluation, which might include an impartial noise investigation of, inter alia, the applicants’ property, final advice and measures to be taken would be decided. In its protocol from the deliberation, the Environment Committee noted that the final assessment of protective and precautionary measures and advice, according to environmental protection legislation, in relation to the wind turbine would be decided upon when the matter had been sufficiently examined. This decision could then be appealed against by any of the persons concerned. On 28 October 1998 the evaluation meeting took place. The applicants were present as were several other neighbours and representatives for the Joint Wind Association and the Environment Committee. It turned out that the “mechanical noise” that some had complained of came from one of the smaller wind turbines, which had since been repaired so that such noise was no longer emitted. Moreover, the other measures had been implemented during the summer months but the neighbours, including the applicants, claimed that this had had no effect on the noise level. The applicants appealed against the decision of 23 June 1998 to the Board and demanded that “all the building permits” be revoked and that the wind turbine be dismantled. They claimed that the wind turbine caused serious nuisance to them and that no real noise investigation had been carried out to establish the true level of the noise. They further submitted that they had not been given the opportunity to voice their opinion about the wind turbine before it had been constructed and that the municipality had not dealt with the case impartially since it owned a part of the wind turbine. The Environment Committee submitted in reply that the Municipal Executive Board had some shares in the wind turbine but that those who were members of both the Executive Board and the Environment Committee had not participated in the Committee’s decision of 23 June 1998. It further stated that the decision had been taken in accordance with relevant legislation. The Joint Wind Association, for its part, stated that it had kept the general public in the municipality informed about the planned construction of the wind turbine through brochures and advertisements in the local press. It further claimed that it was prepared to continue with the measures imposed the following summer too. On 14 April 1999, after having visited the applicants’ property, the County Administrative Board rejected their appeal. It first noted that the Environment Committee’s decision of 23 June 1998 had replaced that of 4 November 1997. Thus, in so far as the applicants’ appeal could be interpreted as being directed also against the decision of 4 November 1997, it had ceased to exist and therefore did not require further measures from the Board. Turning to the substance of the applicants’ appeal, it found from its visit to the applicants’ property that the wind turbine created certain sound effects which could be considered disturbing but which were not serious enough to justify dismantling the turbine. In this respect, it noted that the measured noise levels did not reach the maximum recommended level of 40 dB. Moreover, the Board observed that the running of the wind turbine was subject to the regulations in the Environmental Code (Miljöbalken; 1998:808). Thus, if the applicants, or others, considered that the measures in force to minimise the noise from the wind turbine were insufficient, they could request that the Environment Committee impose further measures. Were the Committee to reject such a request, those who had made the demand could appeal against it to the environmental courts. In these circumstances, the Board found that there were no legal impediments to the wind turbine. The applicants appealed to the County Administrative Court (länsrätten) of the County of Östergötland, maintaining their claims. In particular, they emphasised that the wind turbine was a serious nuisance and that the Environmental Committee had made an incorrect evaluation of the matter and several formal errors in its handling of the case. Moreover, they stated that the municipality had refused to carry out an impartial noise investigation despite requests from several of the concerned parties. The Environment Committee disputed the applicants’ claims and insisted that its decision had been made in due order and was correct. It further observed that it still kept the question regarding a noise investigation open but that the concerned parties so far had agreed on certain specific measures to reduce the noise (such as stopping the wind turbine at low wind speed), which were re-evaluated regularly. Thus, at the moment it considered that a noise investigation was not necessary. On 14 July 2000, after having visited the applicants’ property and held an oral hearing, the County Administrative Court rejected the appeal. It found that the Environment Committee’s decision had been lawful and that, although some sound effects from the wind turbine could be observed on the applicants’ property, the disturbance had to be considered tolerable. Upon further appeal by the applicants both the Administrative Court of Appeal (kammarrätten) in Jönköping and the Supreme Administrative Court (Regeringsrätten) refused leave to appeal on 15 March 2002 and 7 June 2004 respectively. Domestic provisions of relevance to the present case are to be found, primarily, in the Planning and Building Act (Plan- och bygglagen, 1987:10 - hereafter “the Act”) and in the Environmental Code (Miljöbalken, 1998:808 - hereafter “the Code”). Thus, according to Chapter 1, section 5 of the Act consideration shall be given to both public and private interests when questions under the Act are examined, unless otherwise prescribed. It is the responsibility of each municipality to plan the use of land and water areas within their territory (Chapter 1, section 2). The County Administrative Board is the supervisory body of planning and building activities within its county and cooperates with the municipalities in their planning. Moreover, the National Board of Housing, Building and Planning (Boverket, hereafter referred to as “the NBHBP”) has general responsibility for the supervision of planning and building activities throughout Sweden (Chapter 1, section 8). Furthermore, buildings shall be located and designed in a suitable manner with regard to the townscape or the landscape and the natural and cultural values at the site (Chapter 3, section 1 of the Act) and so that neither the buildings themselves nor their intended use will cause any danger or significant impact (betydande olägenhet) to the surroundings (Chapter 3, section 2). According to Chapter 3, section 14, these requirements also apply to constructions other than buildings, such as wind power stations. It follows from Chapter 1, section 4 and Chapter 8, section 2 of the Act that building permits are required for the construction of new buildings, including wind power stations, inter alia, if the wind turbine is more than two metres in diameter. Moreover, Chapter 10, section 1, paragraph 2, states that when a measure which requires a building permit has been taken without permission, the municipal committee responsible for deciding on building permits shall ensure that such a construction is removed or otherwise rectified, unless a building permit is granted retrospectively. Before an application for a building permit is decided upon, all known parties as well as known affected cooperative owners, tenants and residents, shall be informed and given the opportunity to state their opinions on the application (Chapter 8, section 22 of the Act). Also, decisions concerning building permits may be appealed against to the competent county administrative board (Chapter 13, section 2) and subsequently to the administrative courts (Chapter 13, section 4). As concerns the Code, Chapter 1, Article 1 states, inter alia, that its purpose is to promote sustainable development which will ensure a healthy and sound environment for present and future generations. It shall ensure that human health and the environment are protected against damage and inconvenience, whether caused by pollutants or other sources, and that the use of land, water and the physical environment in general is such as to secure long-term good management in ecological, social, cultural and economic terms. It shall also encourage reuse and recycling as well as other management of materials, raw materials and energy with a view to establishing and maintaining natural cycles. According to Chapter 2, Article 3 of the Code, those who pursue an activity or take a measure shall implement protective measures, comply with restrictions and take other precautions that are necessary in order to prevent, hinder or combat damage or detriment to human health or the environment as a result of the activity or measure. They are also obliged to plan and monitor the activity continuously in order to combat or prevent such effects (Chapter 26, Article 19). To ensure that these regulations are adhered to, the Environmental Protection Agency (Naturvårdsverket) and the county administrative boards exercise general supervision and a committee appointed by the municipal council is responsible for local supervision (Chapter 26, Article 3). Appeals against decisions by municipal committees concerning the Code, including decisions to refuse a request for noise abatement measures or a noise investigation, may be lodged with the competent county administrative board unless otherwise provided (Chapter 19, Article 1), and further appeal lies to the Environmental Court and the Environmental Court of Appeal (Chapter 20, Article 2, and Chapter 23, Article 1). Anyone who is adversely affected by a judgment or decision may appeal against it, provided that it is appealable (Chapter 16, Article12). Thus, in a case from the Environmental Court of Appeal (MÖD 2004:31, judgment of 15 June 2004), the court set aside a judgment of the lower court and the County Administrative Board’s decision and referred the case back to the Board for a new examination because the municipal committee had turned down a request, put forward by some people living close to a wind power station, that the committee should, inter alia, make arrangements for a noise investigation of the wind power station, whereupon the Board had dismissed their appeal. Chapter 32 of the Code contains provisions concerning compensation for certain kinds of environmental damage, inter alia, from noise. Hence, in accordance with Article 1, it is possible to get compensation for pecuniary loss that is not caused by a criminal offence, where the loss is of some importance and even if it is not caused deliberately or through negligence. However, the disturbance that causes the damage must not be tolerable in view of local conditions or with regard to the extent to which such disturbance normally occurs in similar conditions. Among those liable to pay compensation are, inter alia, those who pursue a harmful activity or who cause it to be pursued in their capacity as property owners or land leaseholders, including those who use the property for business or public activities (Article 6). Anyone who wishes to claim compensation in accordance with Chapter 32 of the Code shall institute proceedings before an environmental court (Chapter 20, Article 2, paragraph 6 and Chapter 21, Article 2). Judgments and decisions by the Environmental Court may be appealed against to the Environmental Court of Appeal and further to the Supreme Court (Chapter 23, Articles 1 and 9). In one case, the Supreme Court granted some property owners compensation from the municipality for a decrease in the value of their properties caused by environmental disturbance from traffic noise and “aesthetic nuisance” from a newly built road (NJA 1999 p. 385, judgment of 14 June 1999). In Sweden there are no binding rules regarding maximum noise levels in respect of wind turbines. However, according to the NBHBP’s general recommendations 1995:1 (“The Establishment of Wind Power Stations on Land” (Boverkets allmänna råd 1995:1, Etablering av vindkraft på land, 1995), the recommended levels set by the Environmental Protection Agency are applicable to wind turbines on land. Thus, the recommended levels that should normally not be exceeded when the turbine is in operation are, at night, 40 dB for housing areas and 35 dB for areas planned for recreational houses and active outdoor life. In one case concerning the establishment of a wind power plant (MÖD 2003:106, judgment of 7 November 2003), the Environmental Court of Appeal found in its judgment that the recommended maximum level of 40 dB for housing areas should apply both during the daytime and at night. In another case (MÖD 2006:8, judgment of 3 February 2006), the Environmental Court of Appeal held that the fact that an area was used for recreational houses did not suffice to characterise it as an area with “special qualities” and that, therefore, a maximum noise level of 40 dB was sufficiently far-reaching and there was no need to lower it to 35 dB as the complainants had requested. The general recommendations of the NBHBP further state that noise calculations should be performed in connection with an examination under the Act. Such a noise test should be carried out according to a set method where the calculations should relate to a wind speed of eight metres per second, with a following wind, and at a height of ten metres from the ground. The levels of noise calculated should be drawn on a map of the area and marking the distances where the noise level is at 35, 40, 45 and 50 dB. A new handbook “Planning and Processing of Permits for Wind Power Stations” (Planering och prövning av vindkraftsanläggningar) was published in 2003 by the NBHBP and replaced the recommendations from 1995. However, the recommendations concerning noise from wind turbines have not been altered. In June 2006 the Swedish Parliament adopted the first Government Bill relating to wind power (Government Bill 2005/06:143, Miljövänlig el med vindkraft – åtgärder för ett livskraftigt vindbruk (“Environmentally friendly electricity using wind power – measures for a viable use of wind”)) in which it was stated that wind power should be given greater priority and various specific measures should be taken to promote and increase the use of wind power. It was further stressed that energy production in a sustainable society should have the smallest possible impact on the environment and the climate. Most environmental noises can be approximately described by one of several simple measures. The sound pressure level is a measure of the air vibrations that make up sound and it indicates how much greater the measured sound is than the threshold of hearing. Because the human ear can detect a wide range of sound pressure levels, they are measured on a logarithmic scale with units of decibels (dB). If the instantaneous noise pressure level is measured this is called “A-weighting” (abbreviated dBA) whereas, if the noise pressure level is measured over a certain time span, this is called the “equivalent continuous sound pressure level” (abbreviated LAeq). Such average levels are usually based on integration of A-weighted levels. A simple LAeq type measure will indicate reasonably well the expected effects of specific noise. The World Health Organization (WHO) has published “Guidelines for Community Noise” (1999) and “Fact Sheet No. 258, on Occupational and Community Noise” (revised February 2001) which give guideline values for various environments and situations. These guideline values are set at the level of the lowest adverse health effect, meaning any temporary or long-term deterioration in physical, psychological or social functioning that is associated with noise exposure, and represent the sound pressure level which affects the most exposed receiver in a given environment. The guideline levels for annoyance have been set at 50 or 55 dB LAeq (measured for a period of sixteen hours in the daytime and eight hours at night), representing daytime levels below which a majority of the adult population will be protected from becoming moderately or seriously annoyed. It can be noted here that, according to the guidelines, a casual voice level in both men and women at a distance of one metre corresponds on average to 50 dB. Moreover, for most people, a lifetime’s continuous exposure to an average environmental noise of 70 dB will not cause hearing impairment, whereas exposure for more than eight hours a day to sound in excess of 85 dB is potentially hazardous. Thus, in relation to noise levels in homes, the guidelines state that to protect the majority of people from being seriously annoyed during the daytime, the sound pressure level on balconies, terraces and in outdoor living areas should not exceed 55 dB LAeq for steady continuous noise and should not exceed 50 dB LAeq to protect people from being moderately annoyed. These values are based on annoyance studies but most European countries have adopted a 40 dB LAeq as the maximum allowable for new developments. At night, sound pressure levels at the outside façades of living spaces should not exceed 45 dB LAeq, so that people may sleep with bedroom windows open. This value has been obtained by assuming that the noise reduction from outside to inside with the window partly open is 15 dB and, where noise is continuous, the equivalent sound pressure level should not exceed 30 dB indoors, if negative effects on sleep, such as a reduction in the proportion of REM sleep, are to be avoided. According to the American Speech-Language-Hearing Association, noise levels above 80 dB are potentially hazardous. To illustrate various noise levels, it gives the following examples: 80 dB = alarm clock, busy street, 70 dB = busy traffic, vacuum cleaner, 60 dB = conversation, dishwasher, 50 dB = moderate rainfall, 40 dB = quiet room, 30 dB = whisper, quiet library.