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What this section is about:

This section is about why and how environmental noise issues are controlled by regulatory law. It sets out information and guidance on the regulatory law noise ‘tool box’ and teaches how those ‘tools’ can be properly used.


Issues that noise can create.

Common noise issues

  • Personal discomfort, sleep disruption and stress: noise has the potential to affect people’s sense of well being and health. Sometimes the impact of noise can be severe.
  • Subjective appreciation: noise is experienced by people in different ways – some people are more sensitive to noise than others. This is a difficult issue to manage in relation to putting a numerical control value on noise generating activities.
  • Property values: Noise levels can have an impact on property values.

How environmental noise is controlled – the law

There are two ways environmental noise (noise heard from outside) is addressed in New Zealand’s legal framework:

  • By statute. The main statute controlling environmental noise in NZ is the Resource Management Act 1991 (RMA) with lesser support from the Health Act 1956.
  • By the common law, particularly actions involving private nuisance.

By statute….

The Resource Management Act:

  • District Plan Rules:
    Under the RMA local authorities are required to put in place district plans to manage the effects of land use activities. District plans set in place rules to determine what land use activities can take place in certain areas and also how those activities must operate. Ideally, district plans will manage land use activities so that noisy land use activities do not clash with adjacent residential or other noise sensitive land use activities.
    If a new noisy activity is requested in a quiet zoned area, or if a new residential activity is requested in a noise zoned area, district plan rules may require application for resource consent to be made. Noise is likely to be assessed as a potential adverse effect.
  • Resource consent conditions and condition examples:
    A local authority may grant resource consent for a noise generating activity, – for example a windfarm, child care centre or rifle range. The conditions of consent will need to address noise as a potential adverse effect. These conditions may impose restrictions on the hours of operation, the need for noise insulation etc.
    Example condition… Noise from rifle range shooting activities must not exceed Lmax 40dBA at any residential boundary.A local authority may also grant resource consent for a noise sensitive activity, for example a residential activity in a commercial zoned area.The conditions of consent will need to address noise as a potential ‘reverse sensitivity’ adverse effect. These conditions may require that residential buildings in noise zoned areas be soundproofed.
    Example condition… The residential building must be constructed and maintained so that road noise from the adjacent highway is no noisier than L10 18hr 35dBA in the buildings ‘habitable areas’ – at the highways 10 year design target traffic loadings. At the same time, the residential building’s habitable spaces must be constructed and maintained to comply with Section G4 (Ventilation) of the NZ Building Code.
  • Section 16 duty to avoid unreasonable noise:
    This section of the RMA makes it explicit that noise is a potential adverse effect. In recognition of the seriousness of this impact, the RMA imposes an additional obligation (additional and separate to any condition requirements) on occupiers of land or premises (including those operating on a water body or in the coastal marine area) – to keep noise emission levels to a reasonable level, by using the best practicable option available.
  • Enforcement action:
    Local authorities (local councils) are required to ensure that the rules of the District Plan and resource consent conditions are complied with. Councils must also investigate complaints regarding noise. If the complaint is well founded, the Council has a range of options it can use to address the situation – such as excessive noise directions, abatement notices, enforcement orders and prosecution.

The Health Act 1956:
The Health Act regime sits alongside the RMA regime and may be used as an alternative enforcement tool. For instance when there is compliance with District Plan noise limits but an ongoing noise complaint that affects a significant number of people.


By the common law…..

  • Common law and private nuisance:
    Common law is a field of law which has origins from the Courts of the United Kingdom and is the result of hundreds of years of judicial Court rulings which have established a body of case law. In common law, judges apply existing principles of law to new situations as and when they arise. Private nuisance is part of the body of the common law and this area of law is called a ‘tort’ (latin for wrong). It is a way to address noise problems, particularly when the noise is affecting people’s well-being.

Further background appendix:

District Plans (RMA)

  • Councils can set noise emission standards in District Plan rules. Normally District Plans will contain noise standards for permitted activities. If noise above those limits is emitted, then resource consent is required. Noise limits are set after professional input and public submission into the District Plan process. They represent current agreed community standards for reasonable noise levels.
  • As was stated in Coneburn Planning Ltd v Queenstown Lakes District Council [2014] NZEnvC 267, many District Plans control the adverse effects of noise by using zoning and rules. The RMA manages noise nuisance and protects a property owner’s right not to be exposed to serious noise in a more specific way than does the general action for tortious nuisance:

“[33] Section 9 [RMA] reserves (subject, in effect, to sections 15 and 16 as to externalities of pollution and noise) the property rights of land owners to carry out (generally) any activities they choose unless a rule in a plan manages a particular activity and/or its effects. Those property rights traditionally include the common law rights of exclusive possession, right to transfer (in whole or in part), of quiet possession and — and the important corollary which is often overlooked — the right not to be exposed to serious annoyance (i.e. a nuisance). The property right not to be exposed to a nuisance is often overlooked because the action for nuisance is labelled a “tortious” action but the highest authorities confirm it is essentially related to property in that it is serious and unreasonable interference to land — Hunter v Canary Wharf Ltd [1997] 2 All ER 426 (HL), which emanates from other land: Wu v Body Corporate 366611 [2014] NZSC 137 (SC); [1997] AC 655. The RMA complements that general and rather uncertain property right with others which manage annoyances — “nuisances” in a loose sense — in more specific ways.

[34] The principal management tool used around NZ to manage such effects is to zone land either by identifying activities, or by settling standards for the adverse effects of activities so as to manage externalities (including annoyances to neighbours). Many district plans control pollution (under s15 RMA) or noise (under s16 RMA) directly. They also control other adverse effects of land use of incompatible activities by making each potentially troublesome activity a discretionary or non-complying activity (in a rule) in combination with the differential zoning of different areas.”

Private Plan Changes

  • Private individuals or entities may seek to alter the District Plan planning framework to enable an activity that would otherwise have an unfavourable status under the operative District Plan and might not obtain resource consent. This may be achieved by requesting a private plan change.
  • A request must be made to the District Council in writing with a full explanation of the activity, a cost-benefit analysis that meets the requirements in section 32 RMA, and a full assessment of environmental effects. The Council may require further or additional information to be provided, or may commission reports on the request. Once the request is complete, the Council has four options:
    1. Adopt the request in whole or in part – this means it will be processed like a Council initiated plan change;
    2. Accept the request in whole or in part – this means it will be processed as a private plan change;
    3. Treat the request as an application for resource consent;
    4. Reject the request in whole or in part.
  • Anyone considering requesting a private plan change is well advised to seek professional advice and assistance.

Resource consent conditions (RMA)

A consent authority (a local authority that decides on resource consent application under the RMA) has the ability under section 108 to impose resource consent conditions in its decisions – to grant consent to an application. Typically, conditions address the potential adverse effects of a proposed activity – in order to avoid, remedy or mitigate any potential adverse effect such as noise emission levels. Often noise conditions for a proposed development impose standards in relation to hours of operation (and often in relation to hours of construction) and noise levels, which are not to be exceeded, either on property boundaries, or inside residential buildings.

We talk a little further about NZ noise consent conditions here.

Further guidance from the New Zealand Environment Court on resource consent conditions can be viewed in the Resource Management Law Association library: http://www.rmla.org.nz/upload/files/conditions_of_consent_docs
/conditions_of_consent_judge_lj_newhook_final.pdf

From further afield in the UK, the courts have offered guidance that conditions must be; necessary, relevant to planning, relevant to the development to be permitted, they must be enforceable, precise and reasonable.
For some pages covering UK planning condition tests that Bob Russell found to be very useful, click here.


Section 16 (RMA)

  • Section 16 creates a duty, which applies to all occupiers of land and users of the coastal marine area, to keep noise emissions to a reasonable level – by adopting the best practicable option to manage noise.
  • Even if noise emissions comply with noise limits set by rules in a District Plan or a condition of resource consent, or where there are no noise standards in the District Plan, the section 16 duty still applies.
  • Councils often use section 16 to address noise from an on-going, rather than temporary, activity. It requires the person responsible for the noise emission to identify and implement the best practicable option.
    “In a case involving a proposal for a dog kennel boarding facility, the Court found that dogs barking at 2 am might not necessarily offend district plan standards but could have a real effect on the amenity of those subjected to the noise and that such effects must be considered. The Court held that section 16 must be complied with and directed the parties to come up with conditions to manage noise. Once it was satisfied that the conditions would manage noise effects, the Court granted consent to the proposal (Gray Cuisine Ltd v Waikato District Council, [2010] NZEnvC.)”
  • The section 16 duty can be enforced by using one (or more) of the RMA enforcement tools identified below.

RMA Enforcement Tools (RMA)

RMA enforcement tools include:

  • Excessive noise direction
  • Enforcement order
  • Interim enforcement order
  • Abatement notice
  • Infringement notice

Excessive Noise Directions

Temporary or short term noise issues can be addressed by the issue of excessive noise directions, which enable Councils to directly intervene in cases of excessive noise and immediately stop the noise or reduce it to a reasonable level (section 327 RMA).

Excessive noise is defined (in section 326 RMA) to mean any noise that is:
under human control (including noise emitted from a musical instrument, electrical appliance, machine, person or group of people, or an explosion or vibration) of such a nature as to unreasonably interfere with the peace, comfort, and convenience of any person (other than a person in or at the place from which the noise is being emitted).

Excessive noise does not include any noise emitted by any aircraft in flight (or immediately before or after flight), vehicles driven on roads, or trains (other than when being tested, maintained, loaded or unloaded).

Generally a noise will be excessive if it exceeds New Zealand Noise Standards.

An excessive noise direction:

  • May be issued by a Council enforcement officer after they investigate the noise and form an opinion that the noise is excessive.
  • May be written or oral.
  • Cannot be appealed.
  • Requires the occupier of the place from which the sound is being emitted, or any other person who appears to be responsible for causing the excessive noise, to immediately reduce the noise to a reasonable level.
  • Prohibits emissions of excessive noise for a maximum period of 72 hours or any shorter period specified by the officer.
  • Must immediately be complied with, otherwise the officer (with a constable or a constable alone) may enter the property and: seize and remove the item producing or contributing to the excessive noise; render the item inoperable by removing any part from it; lock or seal the item to make it unusable.
  • Can be issued even if nobody is present at the property where the noise is being emitted from or the occupier cannot be identified. An officer (accompanied by a constable) can enter and take any of the above actions, but must leave a written excessive noise direction in a prominent place along with a written notice stating: the date and time of entry; the name of the person in charge of the entry; the actions taken to ensure compliance with the excessive noise direction; the address of the Council office where enquiries can be made regarding the entry.

It is an offence under the RMA to contravene an excessive noise direction.

Seized items can be returned on request provided the Council is satisfied the return will not lead to a return of the excessive noise and any associated costs (for seizure, transportation, storage) have been paid. If the Council refuses to return an item an application can be made to the Environment Court within six months seeking its return. If items are not claimed within six months the Council can sell or dispose of them. On a sale the Council can recover its costs from the sale proceeds and any surplus will be paid, on request, to the person the item was seized from.

Enforcement Order

An enforcement order requires a person to do, or not to do, certain things. For instance, to comply with a condition of resource consent that sets noise limits or not to create offensive noise.

An enforcement order can be made by the Environment Court after an application is made to it (either by Council or any person). An enforcement order only takes effect once the Environment Court grants it and it has been served on the person(s) it relates to.

An enforcement order can require someone to:

  • Stop or not commence an action
  • Take a specified action
  • Remedy or mitigate an adverse effect
  • Pay for costs incurred, or likely to be incurred for avoiding, remedying or mitigating adverse effects.

An enforcement order can also change or cancel a resource consent if it was based on materially inaccurate information provided by the applicant. For instance, that noise levels could be met when in fact they could not.

It is an offence under the RMA not to comply with an enforcement order. If non-compliance occurs, anyone can apply to the Environment Court for permission to carry out the terms of the enforcement order and may recover the cost of doing, either by selling salvaged items (for instance noise emitting equipment that is removed) or as a debt due from the person against whom the order was made.

Interim Enforcement Order

Interim enforcement orders are usually sought where it is necessary to prevent an immediate risk of serious damage to the environment. An interim order can be made without the application first being served on people directly affected by it and without a hearing.

Once an interim order is served on the person to whom it applies, it applies immediately on an interim basis until a substantive hearing can be held and the Court decides whether or not a permanent enforcement order is required.

The recipient can apply to have an interim order changed or cancelled.

Abatement Notice

Enforcement officers can issue an abatement notice to require a person (or someone acting on behalf of another person) to:

  • stop or not commence a noise activity that contravenes, or is likely to contravene, the RMA, a District Plan rule or a condition in resource consent, or that is likely to be noxious, dangerous, offensive or objectionable to the extent that it has, or is likely to have, an adverse effect on the environment.
  • undertake an activity where that is necessary to ensure compliance with the RMA, a District Plan rule or a condition in resource consent and is required to avoid, remedy or mitigate actual or likely environmental effects (for example, to install a noise attenuating device to reduce noise to a reasonable or permitted level).

Abatement notices may contain reasonable conditions that must be complied with. Abatement notices have immediate effect unless they are appealed to the Environment Court and a stay of the terms of the notice is sought. It is an offence under the RMA not to comply with an abatement notice.

The issue of an abatement notice does not always result in a ‘quick fix’.
Case example:
Findlay v Davidson 18 December 1997, Environment Court, Christchurch, C130/97, Skelton J.
This was an appeal against an abatement notice issued by a Council. Noise was emitted by barking dogs from boarding kennels in a residential area. The court accepted that “a noise that disturbs peoples’ sleep, particularly during normal sleeping hours at night, and also disturbs the reasonable use and enjoyment of their property during the day, can be characterised as unreasonable unless there is some basis for saying the recipients of that noise are themselves hypersensitive.” Various options for dealing with noisy dogs were mooted (housing dogs in a soundproofed building, limiting times when dogs are delivered/collected, limiting number of dogs accommodated in buildings closest to neighbours, using water to discourage barking). The court referred the matter to alternative dispute resolution because “regardless of the outcome of the proceeding, [the neighbours] will have to continue living alongside one another unless one or other of them decides to move.” Some years later, and following a number of mediations, the matter was finally resolved by agreement.

Infringement Notice

Infringement notices are effectively a ‘lower level’ enforcement response. They are generally used to respond to minor offending or issued as a warning before more serious enforcement action is pursued. For example:

  • If an excessive noise direction is not complied with an enforcement officer can issue an infringement notice with an instant $500 fine.
  • If there is a breach of district plan rules in relation to noise (breach of section 9 of the RMA is an offence under s338(1) and an infringement offence) an enforcement officer can issue an infringement notice with an instant $300 fine.
  • If there is a breach of an abatement notice for unreasonable noise an enforcement officer can issue an infringement notice with an instant $750 fine.

Prosecution

Prosecution may be used where there has been a breach of noise rules in the RMA and/or a District Plan, an abatement notice or an enforcement order, or an excessive noise direction. Prosecutions are conducted in the District Court. Any charge must be filed in Court within six months of the breach/offence becoming known to the Council, or from when it ought to have become known. A prosecution filed out of time can be challenged and must fail.

On conviction, the maximum penalty for a breach of noise rules (section 9) or breach of an enforcement order relating to noise is:

  • two years imprisonment or a $300,000 fine for a natural person.
  • a maximum penalty of a $600,000 fine for other persons (i.e. corporate or unincorporated bodies, Trusts, companies and suchlike).

On conviction, the maximum penalty for breach of an excessive noise direction (section 327) or an abatement notice for unreasonable noise (section 322(1)(c)) is $10,000, and if the offence is a continuing one, a maximum fine of $1,000 for every day or part of a day during which the offence continues.


Common law and private nuisance

The term ‘private nuisance’ covers a wide range of harms (encroachment on land, physical injury to land), – but for noise issues, it relates to nuisance by interference with a neighbour’s quiet enjoyment of his or her land. The harm that this legal remedy addresses is the personal discomfort created by the noise. The tort of private nuisance attempts to protect property rights and achieve a balance between competing land uses.

Key things to note about private nuisance:

  • This legal remedy does not involve the local authority and is between the person claiming the nuisance (plaintiff) and the person (or company or other legal entity) creating the noise (defendant).
  • A plaintiff must have a proprietary interest in land (be a land owner or leaseholder), – as private nuisance operates to protect such interests.
  • A plaintiff must bring a claim to Court setting out the grounds for private nuisance. Generally, the defendant will respond by filing a notice of defence.
  • A Judge will determine whether there is a case to be made out and will determine whether the noise generating activity must stop (called an injunction) and whether compensation (damages) is to be paid to the plaintiff.

Noise which is ongoing and interferes with someone’s use or enjoyment of land may be amount to a ‘private nuisance’. Relevant factors in determining whether there is a nuisance are as follows:

  • What is reasonable:
    Whether private nuisance will provide a remedy to the plaintiff for the level of interference experienced by noise will depend on the scales of reasonableness. In other words, the level of annoyance and discomfort must be beyond the normal give and take expected of neighbours.
  • The character of the area:
    This is a relevant factor to determine reasonableness. A noise which might be considered a common law noise nuisance in suburban residential Remuera at 1100pm at night (because of Remuera’s residential bedroom environment character) might not be considered a common law noise nuisance in down town city Queen St at 1100pm at night (because of Queens Street’s inner city metropolitan character).

Factors that are not relevant include the exercise of due care, the utility (public benefit) of the activity which is generating the noise, whether the plaintiff ‘came to the nuisance’ (i.e. the generating activity was there first), compliance with the district plan rules or resource consent.

In New Zealand there have been very limited private nuisance cases involving noise. Generally, regulation by local authority through the RMA is likely to ensure that private nuisance situation does not arise in the first place. Noise related private nuisance cases that pre-date the introduction of the RMA in 1991 include:

  • McKelvey v Invercargill Milk-Supply Co Ltd [1928] NZLR 223 (SC): unsuccessful private nuisance claim regarding noise from a dairy factory;
  • McCarthy v Hanson & Co Ltd [1933] GLR 353: noise and vibration from nail making factory held to be a nuisance and an injunction was granted;
  • Mayfair Ltd v New Zealand Properties Ltd [1940] NZLR 190 (SC): “serious disturbance” at night from printing works was held to constitute a nuisance and the Court granted an injunction to the plaintiff.
  • Bloodworth v Cormack [1949] NZLR 1058 (SC): this case concerned noise from motor-cycle racing speedway that affected residents in Remuera. The Court held that plaintiff’s claim had been made out and granted an injunction.
  • Jerram v Hood [1954] NZLR 909 (SC): this case concerned noise from a rifle range and the Court held that the noise amounted to a nuisance and issued an injunction.

The following noise nuisance cases were decided after the introduction of the RMA:

  • Hsu v Weddings Etc Ltd HC Auckland CIV-2009-404-1077, 5 August 2009: In this unusual case, the District Court issued an injunction against the neighbour of property (Hsu) – who disrupted weddings held at his neighbour’s property, by deliberately mowing his lawn and shouting at times aimed to disrupt the wedding and/or cause discomfort. The wedding venue operator held a resource consent to use the property for functions and was operating within the terms of its consent. Hsu appealed the District Court decision and his appeal to the High Court was dismissed. The injunction which prevented Hsu from disrupting weddings was kept in place indefinitely.
  • Harbourcity Developments Ltd v Owen HC Auckland CIV-2006-404-1400, 30 March 2007: This case concerned traffic noise. The plaintiff unsuccessfully argued that traffic noise associated with the subdivision of neighbouring land amounted to an actionable nuisance. The claim failed because the Court held that road and traffic noise not unreasonable and because there was no link between the activities on the adjacent land and the plaintiff.

HEALTH ACT 1956

The Health Act regime sits alongside the RMA regime and may be used as an alternative enforcement tool. For instance when there is compliance with District Plan noise limits but an ongoing noise complaint that affects a significant number of people. A Council may take action under the Health Act if there is a noise that is likely to be injurious to public health.

Under section 23 of the Health Act, councils can address noise that is considered to be a ‘statutory nuisance’. That is, a nuisance that has public health significance. Section 29 contains various nuisance provisions including:-

“(ka) Where any noise or vibration occurs in or is emitted from any building, premises or land to a degree that is likely to be injurious to health.”

Whether or not noise nuisance is ‘likely to be injurious to health’ is a matter of informed professional judgment on a case by case basis. Sometimes noise can be intrusive at a level that could be considered ‘injurious to health’ by virtue of its location, duration, frequency, nature or timing. There are recognised adverse effects of noise on health, ranging from general annoyance and inconvenience to heightened stress levels, sleep disturbance and decreased efficiency of the immune system. Individuals will be affected differently – some may tolerate noise that others are susceptible to.

Case law indicates that a threat to health must go beyond the occupier of the premises on which the nuisance arose, and should involve a significant proportion or number of the public: Roberts v Hall 5/3/86, Thorp J, High Court Gisborne M41/85.


Supplementary information:

How noise limits are chosen:

Statutory noise limits are sometimes chosen initially, as the result of social surveys of the general population. Alternatively, groups of experts might be surveyed.

Setting an arbitrary noise limit does not guarantee that some people will not genuinely be adversely affected at that noise limit level.

District plans and resource consent conditions should always document how noise level limits were chosen.

Single noise number (dBA) regulation problems for awareness

There can be inherent problems in using a single number value (dBA) to attempt to describe all types of sound. A heavy truck at noise level 60dBA (with the heavy truck sound made up mostly of low frequency sound) will generate sound that will physically travel much further into a house, – than sound from a cricket at 60dBA (with the cricket sound made up mostly of high frequency sound) will physically travel into a house.

How different people can hear noise differently

Different people can also be annoyed in different ways by low frequency noises. For example, a very small group of people, (tentatively classed in the UK as low frequency noise sufferers and the subject of a recent University of Salford study), – seem to hear low frequency noise as being either on or off, with no ability to hear or differentiate a low frequency sound as being either quieter or louder. If low frequency sound is there, they appear to simply hear it as being there at full volume. Chosen statutory noise levels must attempt to satisfy the needs of a statistical number (not all) of people.

Typical property boundary regulatory noise parameters.

Lmax = the maximum noise level allowed over a property boundary. It is usually measured in dBA (A weighted decibels).
L10 = the legal noise limit allowed over a property boundary for 90% of the time. Effectively, specifying a noise limit in terms of L10 means that a boundary noise limit is uncontrolled for the loudest 10% of the time.
L95 = the legal noise limit allowed over a property boundary for 5% of the time. Effectively, specifying a noise limit in terms of L95 means that a boundary noise limit is uncontrolled for the loudest 95% of the time. (When L95’s were originally developed, they were never intended as boundary statutory noise limits).
Leq = the (logarithmic) average legal noise limit allowed over a property boundary.

Noise management plans.

A noise management plan is a plan of how a noise problem could be managed. A draft management plan should first lay out the different options that are available to control a noise problem, including engineering options, hours of operation options, and staff management options.
For example, a night club bar causing problems with a neighbour would have the general engineering options of physically soundproofing the bar and/or fitting a noise level limiter to any electronic equipment. It would have the hours of operation options of closing at 1000pm. It would have the management options of the bar operator self monitoring noise levels at the property boundary and taking appropriate management actions to control noise levels at the property boundary.

Once a draft noise management plan has been provided by a qualified person, advocates and decision makers can consider the draft plan’s identified options and possibly develop a final noise management plan for trial implementation.

Council, and separately common law resources, can always monitor the effectiveness of the implementation of any trialled noise management plan. If necessary, further enforcement grade evidence can again be placed in front of decision makers.


 

 


About the authors

Antoinette

 

 

 

 

 

 

Antoinette Besier is the Director of Tasman Law Limited and is a barrister and solicitor as well as a qualified planner. Antoinette specialises in resource management and local government law and works for a number of local authorities as well as private clients. Further information can be found at www.tasmanlaw.co.nz

 

 

 

 

 

 

Bob Russell held a specialist acoustics warrant with Auckland Council from 2004 – 2016, – as an external neutral party consultant. Bob was also one of 39 students worldwide to successfully undertake the UK Institute of Acoustics Regulatory Noise study paper in 2012. Bob can be found part time at http://www.acousticscertificates.co.nz