The RMA Quality Planning Resource

Wilhelmsen v Dunedin City Council [1992] C059/92

The Dunedin City Council issued an abatement notice to Wilhelmsen on the grounds that the noise created from the use of an angle grinder to restore a concrete mixer was unreasonable in a residential area, the noise from a locomotive generator was likely to be objectionable to such an extent that it had an adverse effect on the environment, and the excessive noise from other machinery was not acceptable where it was creating a nuisance to other residents.

The notice required adoption of the best practicable option to ensure that noise did not exceed a reasonable level. The Planning Tribunal allowed the appeal for a number of reasons, including the following:

1. The notice required Wilhelmsen to adopt the best practicable option, but did not specify, the best practicable option. The Court held that it is not sufficient to say that the recipient is to adopt the best practicable option without being more specific.

2. An abatement notice has to set out what the recipient is required to do, not what the recipient may be required to do, or may have to do. The abatement notice stated that "This may require you to relocate …"

3. The notice referred to excessive noise. Excessive noise is provided for in sections 326 to 328 of the Act, and an abatement notice is not the correct enforcement mechanism.

The Court also held that there were no reasonable grounds to issue the notice because the enforcement officer did not make adequate enquiries.

Wilhelmsen applied for costs against the council, and $500 were awarded (Decision on costs C085/92). The Tribunal was not prepared to make a higher award of costs because the council had consented to various waivers and to an amendment to the appeal, which enabled Wilhelmsen to succeed; and in part the abatement notice was justified on the facts that existed at the time it was issued.

Empire Entertainment Ltd v Auckland City Council [2010] NZRMA 525 (HC)

The appellant sought resource consent for a proposal to expand the use of the building on the site to cater for video gaming, watching televised sports matches or movies, video conferencing and karaoke. A food and beverage service would be available on site to cater for the various meeting rooms but there would not be a general bar area. The chief concern of those opposing the proposal was what was described generally as a fear of “anti-social behaviour”.

The High Court found that the Environment Court in Vicki Vuleta Trust v Auckland City Council [2010] NZEnvC 119, [2010] NZRMA 463, had erred by invoking the best practicable option test at the resource consent application stage and by effectively requiring the applicant to demonstrate that no better alternatives existed, noting that this is not the purpose of s16.

In considering the proposal Brewer J stated that:

“Section 16 sits in Part 3 (“Duties and restrictions under this Act”) of the Act. It imposes a general duty on all occupiers of land to control the emission of noise from that land. It sets out the supervening policy of the Act in relation to noise and could be called upon notwithstanding that noise emissions comply with the noise control limits of a District Plan. ...Whether the section focuses on the duty to adopt the best practicable option or not, the clear intent of the section is to limit emissions of noise from land to reasonable levels.”

The Court agreed with the appellant’s submission that by invoking the best practicable option test at the resource consent application stage in the way that it did, the Environment Court was effectively requiring the appellant to demonstrate that no better alternatives existed. That is not what s16 is for. The duty imposed by s16 applies to occupiers of land as they are, not what they might be. 

The Court also held that the Environment Court had erred in finding that “…noise emissions from patrons in the immediate vicinity, for instance people temporarily outside to smoke, are emissions from that land, and the duties of the s16 arise”. Noise is emitted from land only if generated on the land. The noise made by patrons outside the land is emitted from outside the land

Bazley v Police [1998] AP14/98

Bazley and Fowler were convicted in the District Court on charges of assault and resisting constables in the execution of their duty. The police were assaulted while attempting to remove a stereo from a property in accordance with s323 of the RMA.

The appellants appealed to the High Court. The ground of appeal was that the constables were not acting in the execution of their duty.

An enforcement officer of the Invercargill City Council asked the police to respond to a complaint of excessive noise at a party in Bluff. Constable Sutton was asked to handle the complaint. Constable Sutton spoke to a Securitas employee, who faxed to the constable a draft abatement notice. Constable Sutton went to the address at which the party was being held and served a noise abatement notice on Fowler.

Fowler told the constable that the noise would be reduced but if the constable stepped onto the property he would not leave him standing. Constable Sutton returned to his car and waited. The noise increased. He called for assistance. Accompanied by other constables, he served another abatement notice and made it clear that the police wished to remove the stereo.

Fowler and Bazley were very obstructive. The appellants argued that it is incumbent on the enforcement officer to first receive the complaint and then to investigate the complaint. It is only when that has occurred and the enforcement officer has formed the opinion the noise is excessive, that it is open to the enforcement officer to call on the assistance of the police.

The High Court held that:

The reason why the legislation makes provision for the police to be involved is clear enough. Noisy parties which can only be resolved by the removal of a stereo or some other robust action of that sort, are not easy for local government employees to deal with. The authority and perhaps the physical force which the police can bring to bear are obviously seen by the legislator as being, in some cases, desirable.

… a constable who is acting on the request of an enforcement officer may receive a complaint, investigate the complaint, and if of the opinion that the noise is excessive, give a s327(1) direction.

Justice Young in the decision referred to s327. However, according to the facts as recorded in the decision:

a. Constable Sutton received a draft 'abatement notice' from Securitas

b. Constable Sutton issued two 'abatement notices'.

Invercargill City Council confirmed that the notice issued was an excessive noise direction, not an abatement notice. If the notice issued had been an abatement notice, the relevant section is s322(1)(c) and not ss327 and 328. The police do not have authority to issue an abatement notice. An abatement notice can only be issued by an enforcement officer.

Manukau City Council v F'eau and Longview Reception Lounge (1980) Ltd [1996] CRN 6048006284-6286

Longview Reception Lounge operates a nightclub in Howick, Auckland. F'eau was the duty manager on the night of the incident. The security firm employed by the council responded to a complaint at the nightclub and found that the noise was excessive.

A written notice was issued to F'eau. F'eau gave evidence that he turned the noise down. The three enforcement officers ' evidence was that the sound was not reduced to a reasonable level.

The Court held that the charges against F'eau were proven because he knew a direction had been given and did not comply immediately. F'eau was convicted and fined $500.

The Court dismissed the charges against the company and held that the company had put into place mechanisms to keep the noise to a reasonable level. The company had told its managers they had to strictly comply with sound-level requirements and with any directions issued by noise enforcement officers or the Police. There was also evidence that in the past the company and its staff had co-operated with the Council in relation to noise emission.

Manukau City Council v Longview Reception Lounge (1980) Ltd and Pairama [1998] CRN 10480044067-068

Longview Reception Lounge and Pairama pleaded guilty at the conclusion of the prosecution case. The facts were that on 13 June 1997 the Council's enforcement officer issued an excessive noise direction to Pairama, Longview's manager. The notice was to remain effective for 72 hours. In the early hours of the following day the enforcement officer found that the noise emitted from the premises was again excessive.

Each defendant was convicted and fined $1,500 and ordered to pay $750 towards the costs of prosecution. Judge Bollard at page 5 of the decision said:

I trust this case is taken as something of a warning to establishments like this. It is important that noisy activities impacting on surrounding residential environments, in the early hours of morning through the week, are duly penalised as a reminder of the fact that the Act does not contemplate that unduly adverse noise effects will be tolerated by the residential environment. The time has come where people carrying on potentially noisy commercial operations remind themselves of their duties and the need not to be intolerant towards others trying to obtain their sleep at night.

Often excessive noise cases that come before this Court, and before the Environment Court, concern the effects of base drum thumping sounds.