Application and use of abatement notice
An abatement notice can be issued under s322(1)(c) of the RMA to require an occupier of any land or a person carrying out any activity in, on, under, or over a water body or the water within the coastal marine area, who is contravening s16 of the RMA to adopt the best practicable option to ensure noise emission from that land or water does not exceed a reasonable level.
The reasons for an abatement notice, and the actions required, must be stated with sufficient precision to enable the recipient to appeal it. This is because the recipient becomes liable for prosecution if they fail to comply. For example, the Planning Tribunal in Sykes and Three Bros Ltd v Rotorua District Council [1992] 1 NZRMA 233 made several points about the detail required in abatement notices for noise. These include:
- The Council had written to the recipient in January 1992, giving details of noise complaints. The Tribunal held that the reasons must be given in the notice, not in a letter.
- The recipient was referred to Appendix 2 of the District Plan, but should have been referred to the particular part of Appendix 2 that was relevant.
- The notice should state where and how the sound levels were measured.
- The notice should take care to refer to the correct noise standards (the 1977 standards cited in the notice were no longer current).
- Precise details of the action to be taken to comply with the abatement notice must be given (only general options were provided in this case).
The importance of the abatement notice being accurate and specific was also demonstrated in Wilhelmsen v Dunedin City Council [1992] C059/92. Wilhemsen successfully appealed on grounds including:
- The notice required the adoption of the best practicable option, but did not say what the best practicable option was.
- An abatement notice must set out what the recipient is required to do (the notice used the words "may require you").
- The notice referred to excessive notice (managed under s326 excessive noise directions, not an abatement notice).
Action in case of default against abatement notice
If the recipient of an abatement notice fails to comply with it, an enforcement officer may take reasonable steps to reduce the noise to a reasonable level. When accompanied by a constable, the enforcement officer may seize and impound the noise source (refer s323 of the RMA).
Where equipment is seized and impounded, the owner of the property or person from whom it was seized may apply to the local authority (or Police), at any time, to have the property returned (refer s336 of the RMA). The local authority or Police shall arrange for the return of the property if:
- they are satisfied the return will not result in the emission of noise beyond a reasonable level; and
- the applicant has paid all costs incurred by the local authority or Police in seizing, transporting and storing the property.
If the local authority or Police refuses to return the property, then the owner or person from whom is was seized, may apply to the Environment Court within 6 months of the date of the seizure to order the return of the property (s325 RMA). The Court may grant or refuse any such applications.
Property may be disposed of by the authorities if not claimed within 6 months of seizure, or if an application to the Court is not made within 6 months of seizure.
