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Noise management in mixed-use urban environments

Abstract

Noise is an environmental effect that has the potential to cause annoyance and affect health. It is often identified as a nuisance in the local environment and is a frequent cause of complaints, often related to reverse sensitivity.

This guidance note contains advice on noise management in mixed-use urban areas. It particularly emphasises the balance that needs to be achieved between providing for legitimate commercial activity while controlling potential adverse noise effects to reasonable levels.

This guidance note provides:

an explanation of noise effects in the environment, and information on how noise is quantified and assessed
an overview of the legislation related to noise and the management of environmental effects
an overview of the techniques that local authorities might use in managing noise in mixed- use environments
examples of case law and planning best practice.

Guidance note

Effects of noise in mixed-use environments
How does noise affect people?
Managing noise in mixed-use urban environments
Control of noise

Effects of noise in mixed-use environments

Noise management in mixed-use urban environments: the context

‘Mixed-use’ urban environments often contain commercial premises (entertainment, retail, office, hospitality or light manufacturing) sited close to residential uses such as apartments.

As with many countries overseas, urban population densities are increasing. At the same time many commercial activities now want to operate both during the day and at night. Commercial operations may enhance the vitality and culture of urban areas, but they can also create noise problems. These can include sounds from fixed plant and equipment, mobile vehicles and machinery, or worn out (or poorly maintained) equipment such as fans and pumps. Outdoor activities and noise from car parks can also have significant adverse effects on those living nearby. In some cases the applicable district plan noise limits are not being met by existing activities.

The key players in the management of noise in such situations are:

those who activities or property generate the noise
those who are or may be affected by noise
local authorities.

This guidance note focuses on the obligations to control noise emissions at or near the source, as well as the need for local authorities to adopt sound land use planning practices to monitor and manage noise in mixed-use urban environments. While not addressed in this note, there are also wider planning matters relating to compatible land use planning.

How does noise affect people?

Noise can be thought of as unwanted sound and can vary greatly in volume (see what is noise?). Noise as defined in the RMA includes vibration, which in most cases is associated with high levels of noise. In environmental assessments it is usually the noise effects that are of most concern. However, specific vibration effects can arise from some types of commercial activities and these may require specialist investigation outside the scope of this guidance note. The effects of environmental noise are usually expressed in terms of:

annoyance
speech interference – high levels of noise can make normal speech difficult to hear
performance – some noises can make concentration difficult and interfere with tasks such as learning, checking fine details (such as any job with a large mathematical component or where the meaning of words is critical) or work where small, precise, movements or intense concentration is required
mental health (including noise-induced stress-related effects)
sleep disturbance – in addition to fatigue and mental health effects, disrupted sleep patterns can leave people irritable, change their behaviour, and reduce their ability to work or perform tasks.

For further descriptions of the health effects that may be attributable to noise see Noise Effects Handbook: A desk reference to health and welfare effects of noise published by the United States Environmental Protection Agency.

Managing noise in mixed-use urban environments

Under s.31 of the RMA, territorial authorities have the primary responsibility for managing the effects of land uses and noise (including the mitigation of noise). Territorial authorities also have responsibility under the RMA to achieve integrated management of the effects of the use, development, or protection of land associated with natural and physical resources. This includes effects on amenity values that may be affected by noise.

As noise is a specific adverse effect identified in the Act, district plans must include policies, objectives and (generally) rules to manage the effects of noise within their district.

Regional councils have responsibility for the control of noise within the coastal marine area. Noise may be addressed by controls in regional coastal plans.

Factors affecting receipt of noise

Noise from commercial premises can be a dominant source for nearby residential and other noise-sensitive activities, especially at night. Natural sounds, traffic sounds, and other non-target sounds are also present in the urban environment. Methods for measuring and assessing the impact of specific nuisance sounds within the context of an urban ambient noise environment are covered by the New Zealand Standards NZS 6801 and NZS 6802. (For a list of other noise standards see related documents at the back of this guidance note). These are available from the Standards New Zealand.

Difficulties often arise where noise-sensitive land uses (such as residential activities) move into or close to established commercial areas or major infrastructural assets such as ports or airports. This is often referred to as ‘reverse sensitivity’ for an explanation of reverse sensitivity and relevant case law).

One technique for dealing with the issue of reverse sensitivity is to ensure people are fully informed of the environment which they are proposing to move into. Overseas, the City of Sydney provides suggestions to residents thinking of moving into the inner-city on what to expect and how they can judge for themselves whether they will be able to cope with issues like noise before they take up residence (see Noise and Inner City Living).

A similar publication is available from the Ministry for the Environment website (see Living in the inner city).

Assessing noise effects in mixed-use urban areas

Different factors are considered when assessing noise from commercial or trade premises in mixed-use zones. These include:

Time of day: There is less tolerance of noise by residents when it occurs at night. Therefore district plan noise limits are typically lower for night.
Level of sound: Sound levels can range from loud (exceeding the normally occurring or existing background sound level by 10 dBA or more) through to relatively low level with bass or beat components. District plan provisions should allow for some noise to be emitted, but only up to allowable limits measured at the residential location (often around 45-55 dBA).
Type of sound: Some sounds have a special audible character that can cause additional annoyance. For example, some music sounds contain both tonal and beat (impulsive) qualities, both of which attract an assessment penalty under noise assessment procedures set out in the relevant New Zealand Standards. Tones, screeches, and hums are examples of sounds from commercial premises that often require special consideration during the assessment process.
Location of premises: Commercial and industrial areas located close to residential sites will often have more noise issues than those occupying sites well within commercial or industrial zones (further from residential sites). District plan noise provisions usually allow higher levels of noise (day and night) within commercial and industrial zones. Distance, and the placement of barriers between the source of the noise and those receiving, are mitigating factors but the ability to use these can be limited in mixed-use environments. Where residential activities locate in established commercial or industrial areas it is more practical for the new residential use to insulate itself from noise than it is for existing commercial uses to comply with acceptable residential noise levels.
Body corporate and private undertakings: Complaints can arise where noise-sensitive residences are located in the same premises as a noise-making commercial activity. Clauses within leases or body corporate constraints covering noise nuisance often place such complaints beyond the scope of territorial authority action. However, many territorial authorities successfully deal with these matters in the same way as if the parties were located within separate buildings.

Managing noise at source

Generally, the overriding requirement is for control of noise ‘at source’. As well as the wider duty under s.17 of the RMA to avoid, remedy or mitigate adverse effects, noise makers need to recognise the general duty to avoid unreasonable noise (s.16) by containing as much of the sound as possible. Usually this means considering:

the building’s location, orientation and design
the specification, selection, and operation of equipment (machinery such as air conditioning units and waste disposal systems) that emit low levels of noise
managing operations on site so noise activities may be located as far as possible away from boundaries with noise sensitive neighbours, and/or choosing times of the day to operate noise generating equipment when noise is less likely to be an issue
barriers to control or reduce noise (insulation, bunding and double glazing for example).

Distance as a mitigation measure

For new noise generating activities, control can be achieved by incorporating appropriate buffer distances. New noise generating activities need to consider the distance to the nearest neighbours, traffic routes and other relevant factors when determining the layout, design and operation of their activities. However, as buffer distances are often not practical in inner-city areas where differing land uses tend to be located in close proximity, measures such as the use of noise barriers or insulation may present a more realistic management method.

Noise barriers

Barriers may include such features as:

solid walls or fences to stop or deflect sound
bunds
other non-noise sensitive structures
topography (locating activities in depressions or behind hills for example).

Barriers to control noise emission or to reduce noise received can be effective, but the effects of reflected sound need to be considered within the design and orientation of barriers (see Hill Park Residents Association Inc v Manukau City Council A30/2003). Factors such as orientation and materials used in the construction of barriers should be considered. Acoustic consultants can provide detailed guidance to match the specifics of individual sites.

Vegetation is not considered a good sound barrier as it will not block noise emissions unless plantations are very dense. Within inner-city mixed-use environments there are few opportunities to provide planting capable of mitigating noise.

Building design and construction

Commercial activities may attempt to reduce sound emissions through building design and making sure the building is suitable for containing the levels of sound likely to be generated within it. Distance between the noise source and boundaries helps, so premises with larger land areas will be better placed to internalise the noise effects, keeping adverse effects within the site.

Noise control is most effectively achieved on smaller sites by paying particular attention to design before constructing any buildings. The layout of premises…the location and orientation of openings, loading bays, doors, windows, and car parks…and on-site vehicle circulation patterns are all important for good noise control.

Acoustic weak points (loading bays, doors and windows for example) may be orientated to face away from noise sensitive areas, or provided with measures to reduce noise escaping (for example using two sets of doors with seals or double glazed windows or glass laminates that reduce noise).

The floor, walls and roof form a building envelope and need to be of a certain minimum mass (kilograms per square metre) to adequately contain high levels of sound. Many lightweight timber-framed structures are not suited to noisy commercial uses as they are capable of reducing noise by only modest amounts. Improved technology means better control of noise emission through lower sound output from modern mechanical sources (such as compressors, pumps, motors and fans). Improvements in materials and methods mean sound can be more effectively contained within buildings and purpose-built structures.

Noise and the Building Regulations 1992

The Building Regulations 1992 (which contain the New Zealand Building Code) require all structural and non-structural components of a building that are shared between owners or occupiers (such as walls), shall be constructed to prevent undue noise transmission to the habitable spaces of dwellings contained in the building. The Building Code specifies the following performance standards:

the Sound Transmission Class of walls, floors and ceilings, shall be no less than a rating of 55.
the Impact Insulation Class of floors shall be no less than a rating of 55.

Note that the Building Code is being reviewed and a move towards another standard is proposed (see the emerging issues section).

The Sound Transmission Class (STC) is a single number rating derived from measured values of transmission loss in accordance with classification “ASTM E413, Determination of Sound Transmission Class”. It provides an estimate of the performance of partitions (such as walls) in certain common sound insulation situations.

The Impact Insulation Class (IIC) is a single number rating derived from measured values of normalised sound pressure impact levels in accordance with “Method ASTM E492, Annex A1. Laboratory Measurement of Impact Sound Transmission Through Floor-Ceiling Assemblies Using the Tapping Machine”. It provides an estimate of the ‘impact sound’ insulating performance of floors and ceilings between levels in a building.

The Relationship between the Building Act and Resource Management Act

The Building Act and Resource Management Act have differing functions and neither has primacy over the other. Controls in district plans under the Resource Management Act relating to noise insulation or control do not override regulations made under the Building Act, but neither do regulations made under the Building Act restrain local authorities from providing stricter controls in their district plans provided those district plan controls are made for resource management reasons.

Noise management plans

A noise management plan usually contains:

the identification of the range of potential noise sources
specific steps that will be taken to ensure compliance with specified noise limits (these may be linked to a resource consent or district plan limit)
a written undertaking from the author (either an acoustic engineer or noise consultant) that the means given in the plan will be adequate to ensure compliance with the noise limits specified in the conditions
a programme of noise measurement to check that compliance has been achieved through monitoring and testing.

Noise management plans may be incorporated into a district plan through permitted activity standards associated with particular (usually known) land uses, or their formulation and compliance with them made a condition on a resource consent. Some district plans actually specify that a noise guidance plan must be prepared to comply with rules (see Palmerston North District Plan Airport noise management).

As with any reference to an external document that is incorporated into a plan by way of a rule, is important that the name of the document, year of publication and the publisher is included in the rule or resource consent (eg, ‘management of noise generating activities on the site shall be in accordance with the Cacophony Acoustic Consultants “Mammoth Mall On-site Noise Management Plan” (2004) version 3’). The Resource Management Amendment Act 2005 contains specific requirements as to how external documents are to be incorporated into plans and the availability of those documents for public inspection (see Schedule 1, Part 3, clauses 30-35).

Other RMA options, such as designations for airports, may also refer to noise management plans as a way managing noise.

It is good practice for key stakeholders, such as transport operators, adjoining residents and site users, to be consulted in the preparation of noise management plans to allow a wide range of options to be explored and help assess what is practicable.

Some examples of noise management plans for large-scale commercial activities are:

Pan Pac Forest Products Ltd (operates an integrated sawmill and pulp mill complex at Whirinaki near Napier)
Auckland International Airport Noise Management Plan (prepared in 2003 and includes information on how the airport company manages the airport to comply with the Manukau District Plan)
Port of Auckland Ltd (PDF 56 KB) (describes the noise mitigation work carried out to date and discusses noise management procedures to be carried out in the future).

Management of noise in the receiving environment

Many district plans now require specific precautions to be taken by the noise receiver to avoid adverse noise effects. Precautions include:

requiring buffer zones between new noise sensitive activities (such as dwellings) and commercial premises
placing restrictions on dwelling numbers and density in some areas
requiring acoustic insulation of new buildings, or retrofitting insulation into buildings being converted to residential use
specifying the types of sound absorbing materials new buildings may constructed from (see Schedule P from the Palmerston North City District Plan for an example of this form of management technique).

Where new noise sensitive activities are locating in mixed-use environments, buffer zones or restricting the location of dwellings may not always be desirable or practicable. Insulation or the use of noise deflecting or absorbing barriers (or a combination of both) between activities may be the best option. Requirements for such insulation or barriers could form either standards for permitted activities or conditions on a resource consent.

Providing indoor living spaces in mixed-use areas with a reasonable standard of acoustic protection is emerging as an effective method of addressing reverse sensitivity.
Specifying the standard required for acoustic insulation (for example the materials to be used, or the level of sound reduction to be achieved).

It can be difficult to keep a list of specified materials up-to-date with what is available in the market. Product brand names should be avoided, and plan provisions written in such a way as to allow for the use of other materials with the same insulation performance (or else the provisions should be periodically reviewed to keep them up-to-date).

Dunedin City Plan Change 2: Inner City Noise (PDF 76KB) , introduces provisions into the Dunedin City District Plan that require new residential and commercial residential activities in the inner-city central activity and large scale retail zones to be insulated from external noise. The amendments include a formula for specifying the level of noise reduction insulation is to achieve. The plan change also considers the issues of ventilation (open windows and mechanical ventilation).

Ventilation is an important consideration. Indoor sound targets will not be achieved in rooms with open windows whether they are acoustically insulated or not. The Wellington City Council plan change (see permitted and discretionary activities) specifically requires that acoustic protection be provided when openable windows are used as the main ventilation method. This does not replace any mandatory requirement for ventilation under the Building Code, but ensures an alternative source of air is provided for bedrooms with openable windows. The Building Code requires mechanical ventilation for habitable rooms without openable windows. The Wellington City Council approach provides a useful balance between allowing for activities which create noise and allowing noise-sensitive activities within a noisy receiving environment.

Setting noise limits in district plans and consent conditions

District plan provisions

Generally, there are two types of noise rules that can be included in plans:

noise emission rules, which apply noise limits at the site from which the noise is being emitted
noise immission rules, which apply (lower) noise limits at sensitive receiving positions.

The specific level of noise control in district plans is usually set out in detail in noise rules. These are usually included in the plan’s performance standards for each zone or class of land use. In some cases district-wide noise rules may apply. The definitions section of the plan is often used to clarify the types of noise to which rules apply, and the relevant technical standards and procedures that apply when assessing noise under district plan criteria.

NZS 6802:1999 gives a range of noise levels as a guideline for the reasonable protection of health and amenity for land used for residential purposes. The recommended range of noise limits for residentially zoned sites is:

Day

45–55 dBA Leq

Night

35–45 dBA Leq

70–75 dBA Lmax.

In inner-city areas, night-time noise limits are usually set at 55 to 60 dBA. This exceeds normally acceptable noise limits for residential areas. Planning restrictions for inner-city areas recognise the need to provide for a wide range of activities. Councils often see this as contributing to a vibrant and culturally diverse city centre, while at the same time ensuring a business-friendly environment. Higher permissible noise limits in city centres is a key reason why new residential premises need to be acoustically insulated. See for example the Dunedin City Council Section 32 Report on inner-city noise management (PDF 635KB).

Setting noise limits at the site boundary is often the best way to minimise adverse noise effects on sensitive land use activities. However, it may not be sustainable to set the actual level above residential limits if residential uses are also permitted within the zone.

Setting district plan noise limits higher than the guidelines for areas that are primarily used for residential purposes needs to be accompanied by a parallel requirement for acoustic insulation of all new buildings housing noise-sensitive activities. In the longer term this will lead to a more balanced outcome whereby both noise generators and receivers share the mitigation measures required to allow them to locate in mixed-use areas.

Indoor sound level targets (eg, World Health Organization (WHO) sleep protection measures) should be considered when setting both noise limits and acoustic insulation standards. Indoor sound level guideline values set by WHO for bedrooms are 30 dBA Leq for continuous noise and 45 dBA Lmax for single sound events. Standards to reduce noise inside residential dwellings in mixed-use environments could use these as a target.

Some buildings have internal noise limits that apply through conditions on the building lease. District plans and resource consents may sometimes also include noise limits that apply to indoor areas. Setting indoor noise limits is usually a measure of last resort and is typically to protect against sleep disturbance. For rooms other than bedrooms, noise limits may be set to protect against annoyance and speech interference. These levels will typically be higher than for bedrooms.

The critical indoor design criteria will depend on the needs for each individual environment. For example, dwellings, schools and hospitals all have differing indoor design criteria. The advice of a qualified acoustic engineer or noise consultant should be obtained when setting these.

Consent conditions

Consent conditions relating to noise should contain clear information about:

why the noise condition is being imposed
what types of activities to which the limits apply
how noise is to be measured and assessed (eg, reference to New Zealand Standards) and any numerical limits and the correct metric standards used.
where noise is to be measured from
when the noise limits are applicable.

Example noise condition[Reveal/Hide]

(Adapted from a Hamilton City Council condition) Activities at the Residential Centre shall not exceed the following noise levels when measured at any point at or within the boundary of any site in the Residential Zone:

Monday to Saturday

0600hr-0700hr 45dBA - L10
0700hr-2000hr 50dBA - L10
2000hr-2300hr 45dBA - L10
2300hr-0600hr 40dBA L10 75dBA Lmax

Sunday and public holidays
0700hr-2300hr 45dBA - L10
2300-0700hr 40dBA L10 75dBA Lmax

Noise measurements shall be measured in accordance with NZS 6801: 1991 “Measurement of Sound” and assessed in accordance with NZS 6802: 1991 “Assessment of Environmental Sound”.

Reason: The increased number of persons and density of occupancy proposed in the application for the residential centre will be likely to cause adverse effects on the amenity values of the local established neighbourhood which has already been subject to change, and could lead to further effects on amenity values. This condition is designed to ensure activities at the residential centre do not further compromise the amenity of the neighborhood in respect to noise by setting limits that are consistent with those levels already found there.

The monitoring and assessment procedures in the appropriate New Zealand Standards can be used to ensure compliance. Compliance with the rule does not automatically mean the level of noise is reasonable, but is likely to be the best available guide to acceptable levels.

Control of noise

Environmental noise in New Zealand is controlled under the Resource Management Act 1991 (RMA) and the Health Act 1956. The Health Act contains nuisance provisions, in particular, ss.29-34 dealing with nuisances including:

‘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’.

Under the Health Act, nuisances such as noise are the responsibility of local authorities. This provides a potential alternative mandate and enforcement mechanism for the control of noise. Enforcement can extend to prosecution through the district court.

However, most territorial authorities have adopted the RMA as the main method for controlling environmental noise. Noise within the workplace is dealt with by the Occupational Safety and Health (OSH) Service of the Department of Labour.

Best practicable option for avoiding noise emission

s.16 of the RMA requires all noise makers to adopt the best practicable option to avoid the emission of unreasonable noise. The duty to adopt the best practicable option is in addition to the duty to comply with district plan noise limits. This duty applies to every person, company, legal entity, and the Crown, and includes persons undertaking activities on designated sites. There are no exceptions.

Enforcement tools

The enforcement tools available within the RMA to control adverse noise effects in the environment are:

abatement notices issued by territorial local authorities subject to s.322(1)(c)
enforcement orders to avoid unreasonable noise or enforce plan rules under ss.314-321
excessive noise direction notices issued by or on behalf of a territorial authority subject to s.327.

More information on enforcement mechanisms that may be used in regard to the effects of noise can be found in Chapter 4 of the Resource Management Enforcement Manual 2005.

Best practice examples

Auckland City Council – district plan ‘noise in the central city area’ and ‘acoustic privacy’ provisions (PDF 245KB)

The City of Auckland District Plan (Central Area Section) contains a chapter aimed at managing noise in the inner-city. Noise standards are tighter in noise sensitive areas such as the ‘residential’ and ‘educational’ precincts.

City of Auckland District Plan (Isthmus Section) (PDF 25KB)

The City of Auckland District Plan (Isthmus Section) contains specific controls in the high-density Residential 8 Zone that seek to minimise the transmission of unacceptable noise between sites and between dwellings within the same development. Controls set external and internal noise standards, and limit commercial vehicle operations.

New Plymouth District Council District Plan – separation of activities (PDF 440 KB)

The New Plymouth District Plan includes objectives, policies and rules that look at methods to resolve reverse sensitivity issues and encourage separation of noisy activities from noise-sensitive ones.

Wellington City Council – insulation in mixed-use environments

An example of best practice to address reverse sensitivity is the Wellington City Council Central Area provisions that were included in the Wellington District Plan via Plan Change 23 (approved February 2004). The change introduces new rules requiring acoustic insulation of buildings accommodating noise-sensitive activities in the inner-city.

Queenstown Lakes District Council – acoustic insulation in town centres plan change (PDF 19KB)

Queenstown Lakes District Council also recently prepared a plan change covering noise insulation in mixed use environments and buildings in the Arrowtown, Queenstown and Wanaka town centres.

Dunedin City Council – Proposed Plan Change Number 2: Inner-City Noise [2004/2005] (PDF 635KB)

A Plan Change notified in December 2004 dealing with the generation of noise and effects on inner-city residential areas in and around the blocks surrounding the Octagon in central Dunedin. The Section 32 report contains an analysis of the existing situation and the costs of benefits of noise limits and noise insulation.

RMA provisions

The sections of the RMA that are particularly relevant to managing the effects of environmental noise are:

s.2 Interpretation
s.5 Purpose
s.7(c) Protecting amenity
s.16 General duty to avoid unreasonable noise
s.17 Duty to avoid, remedy, or mitigate adverse effects
s.31 Functions of territorial authorities under this Act
s.326 Excessive noise
s.327 Issue and effect of excessive noise direction
s.328 Compliance with excessive noise direction.

Case law

Air conditioning

Waitakere City Council -v- All Seasons Property A40/96: An enforcement order was issued requiring the respondent to cease permitting noise to be emitted from the land at levels which contravened the noise controls in the transitional and proposed district plans. The enforcement order also restricted the hours of operation of an air conditioning unit.

Amenity

Shell Oil New Zealand Ltd -v- New Plymouth District Council W 20/96

Turner A and R -v- Grey District Council W 89/94

Mobil Oil New Zealand Ltd -v- Taupo District Council A 149/98

Cox -v- Kapiti Coast District Council W 05/94

Best practicable option

Cox -v- Kapiti District Council W05/94 3 NZPTD 195: s.16 may affect activities (even though they may be permitted) if they are not adopting the best practicable option. ‘This section will make it extremely difficult to import potentially noisy activities into a quiet residential environment’ … and … ‘might even enable termination of a permitted use if the best practicable option is not adopted’. Specialist evidence is sometimes needed when dealing with noise cases. Where a person potentially affected by an activity has reasonable cause to fear amenity detraction from noise, then an applicant is under an obligation to call acoustical evidence.

Ngataringa Bay 2000 Inc -v- The Attorney General & North Shore City Council A010/94 3 NZPTD 420: The duty in s.16 is not necessarily avoided by compliance with a district rule on noise control, nor by an assessment that a particular noise emission is not deemed a danger to health nor by reference to general standards.

Hall & Stevens -v- Port Otago Ltd & Owens Services Ltd C036/95 4 NZPTD 390: Respondents under s.16 are entitled to know which option the applicants consider to be the best practicable option and why.

Auckland Kart Club Inc. -v- Auckland City Council A124/92 The definition of best practicable option has too many matters of interpretation and discretion built into it to allow it to be used as a basis for strict liability. The phrase ‘other things’ does not limit the regard to be given to just the three provisions (a), (b) and (c), of the definition; nor does it mean that one provision should prevail over another. The question of weight accorded each provision depends on the particular case. The conjunctive use of ‘and’ at the end of each provision means that an evaluation of the best method should take account of all factors mentioned in the provisions. However, one or two of the provisions may, at any one time, be exclusive of others. What is reasonable if a question of fact and degree. ‘Reasonable’ is a question of fact and degree, it is necessary to consider the technical options and the financial implications separately. The best possible option is the optimum combination of all methods to limit noise to the greatest extent achievable.

Buffer zones

Winstone Aggregates Ltd; Auckland Regional Council -v- Papakura District Council A096/98: The Court considered whether a reverse sensitivity buffer zone was appropriate. The primary responsibility on the owners and occupiers of a site is to internalise the effects of an activity as much as possible. Only where it is unreasonable (having regard to all the circumstances of each particular case) to internalise should other methods of controlling effects be considered. The Court held that a measurement should be imposed on the Quarry Zone boundary defining the reasonable noise constraints imposed on the quarry operator. Those levels are site specific and will depend on factors such as technology, cost, geography and the geological structure of the site and its surrounds. When the control at the interface is set, it can then be determined whether a buffer zone is necessary and the extent of any such zone.

Building Act

Christchurch City International Airport C113/94 Sheppard, Skelton: The Building Act and Resource Management Act have differing functions, neither has primacy over the other and the requirements of each need to be met. The Building Act does not prevent rules in District Plans regulating similar matters for different objectives.

Building Industry Authority; Christchurch City Council; Christchurch International Airport, AP78/96 (Christchurch City International Airport) Building Act: Relationship between Building Act and Resource Management Act. Where a condition (noise attenuation) is required to control activities in terms of the Resource Management Act then it is not contrary to s.7(2) of the Building Act. Bill of Rights Act – “Any condition which a consent authority may otherwise lawfully, fairly and reasonably impose on a resource consent pursuant to s.108 of The Resource Management Act does not breach s.14 of the NZ Bill of Rights Act 1990.”

Entertainment noise

Hamilton City Council; Le Grand Hotel Ltd -v- PG Bryant Ltd A01/96 (across a road): The Council and Le Grande Hotel sought enforcement orders that the respondents adopt the best practicable option to ensure that emission of noise did not exceed a reasonable level in compliance with s.16. The Tribunal held that the first respondent was under a duty by virtue of s.16(1) of the RMA to adopt the best practicable option to ensure that, between the hours of 11pm and 6am, the emission of noise from the bar did not exceed 50 dBA (L10) (allowing for special audible characteristics), when measured 1m from the outside of the wall of the hotel facing Collingwood Street. The bar could be modified by creating a sound barrier between the inner part of the bar and its open balcony by providing an entrance lobby at either end of the balcony. The likely cost was likely to be in the order of $52,000 to $65,000 and included allowance for alteration to ventilation and air extraction. However, the respondents were afforded the opportunity of arranging for a final design to be undertaken by an acoustic consultant. Subject to approval of the design, modification of the bar along the lines described represented the best practical option.

Hamilton City Council; Le Grand Hotel Ltd -v- PG Bryant Ltd A064/96 (55 dBA L10) This order follows from A001/96. An enforcement order was made in respect of the “Freemans Cocktail Bar”, within The Commercial Establishment at 287 Victoria Street, Hamilton, requiring the respondents to adopt the best practicable option to ensure that noise emitted from the premises did not exceed specified noise limits. The best practicable option specified was: control of the noise source where possible including control over levels of noise produced by musical instruments and amplified sound reproduction; and/or acoustic insulation of the premises.

Shepherd -v- Far North District Council A095/98: An appeal against refusal of resource consent to establish licensed tourist house premises at 18 King's Road, Paihia. The site occupied by the “Pipi Patch” is a transitional or mixed-use area. There are a high proportion of commercial properties, many servicing various sections of the tourist market. Residential uses continue to be important in the area. The Court held that the proposed conditions were sufficient to allow the proposal to be approved. Conditions were imposed that limited the area to which the license would apply; the number of patrons; compliance with noise limits; monitoring of noise; and landscaping. The Environment Court said had no jurisdiction in regard to guests travelling on public roads.

Berhampore Residents Association -v- Wellington City Council W054/92: The Tribunal concluded that the needs of, or benefits to, concert goers did not override the considerations of the residents and their amenity values. Residents should not be expected to tolerate the environmental disruption outlined for the purpose of enabling non-residents to enjoy excessively noisy and potentially environmentally destructive musical performances. An enforcement order was made prohibiting the Wellington Rugby Union (Inc.) from commencing or continuing any musical concert making use of amplified music upon the [Athletic] park after 6.30pm and before 11pm if such a concert was likely to produce sound which may exceed 68 dBA Leq measured at any residential or hospital boundary in the vicinity. Amplified music was totally prohibited between 11pm and 9am.

Excessive noise and enforcement

Wilhemsen, GR -v- Dunedin City Council C 059/92: The standard of proof required to support an abatement notice is the civil standard based on the balance of probabilities having regard to the gravity of the matter. Abatement notices should not refer to excessive noise as excessive noise is specifically dealt with in s.326 and s.328 of the Act. An abatement notice has to set out what the recipient is required to do, not what he/she may be required to do, or may have to do. While the abatement notice was cancelled it was made clear that the appellant was not absolved from the responsibility that every occupier of land/person carrying out activities has under s.16(1) is to adopt the best practicable option to ensure that any noise he/she creates does not exceed a reasonable level. It is no answer to say that one is simply carrying on normal residential usage such as developing one's residential property.

Groot -v- Tauranga District Council NP30/92: Powers under the sections concerning excessive noise orders are in addition to the powers under ss.322 to 325 to issue abatement notices relating to unreasonable noise and to seek an enforcement order under s.316. This was illustrated in the case where it was stated that ‘All may be employed to enforce the general duty under s.16 to ensure the avoidance of unreasonable noise’.

Insulation of dwellings

Matamata Piako District Council -v- Matamata Piako District Council A 41/96: A successful appeal to the extent that a new condition was substituted in regard to a roading designation. Before the construction of a proposed heavy traffic bypass a noise assessment is to be made within all existing dwellings directly adjacent to the road. Within six months of the bypass becoming operational a further noise assessment is to be made within the existing dwellings. In the event that the second noise assessment shows that the stipulated noise levels are not met the designating authority is to take measures to ensure that the stipulated noise levels will be achieved. Such measures may be either fencing or insulation of the dwelling(s).

Unreasonable noise

Ngataringa Bay 2000 Inc -v- Attorney-General A 16/94 (duty to adopt best practicable option, s. 17 duty, district rule): s.16 does not impose an undefined noise level standard, rather a duty to adopt the best practicable option to ensure that emission of noise does not exceed a reasonable level. The duty in s.16 is not necessarily avoided by compliance with a district rule on noise control, nor by an assessment that a particular noise emission is not deemed a danger to health nor by reference to general standards. The duty under s.17 only arises if there is an adverse effect on the environment from the activity.

Ventilation

Ports of Auckland Ltd -v- Auckland City Council Cp 306/98: Reverse sensitivity – the operation of the Port is likely to cause a noise nuisance to those living adjacent which means future owners of proposed residential apartments in vicinity may in future object – the Port clearly an affected party in regard to development of Railway Station Apartments. Council has the ability to require minimum noise standards in apartments and adequate closed window ventilation.

Emerging issues and work in progress

New Zealand Building Code: building insulation

The New Zealand Building Code is being updated in line with the Building Act 2004. Under proposed clause G6, acoustic insulation methods are specified for protecting habitable spaces in buildings from environmental noise arising from beyond the building.

The ‘trigger’ for requiring acoustic insulation against external noise in new buildings housing noise-sensitive activities rests with territorial authorities and the Environment Court. Acoustic insulation may be specified as being necessary at the time of making decisions on resource consents, designations or district plan provisions, or appeals on these RMA mechanisms. If this change is implemented, councils may need to consider whether to change their plans to allow for acoustic noise controls to be imposed under the Building Code.

Within the draft clause G6 there are moves away from traditional methods for quantifying levels for building acoustic isolation. This should improve the implementation of acoustic insulation. The familiar method of specifying a maximum indoor sound level for determining insulation requirements has been replaced with a method termed Standardised Level Difference or DnT,w (AS/NZS 1276.1:1999 Acoustics – Rating of sound insulation in buildings and of building elements: Airborne sound insulation). The DnT,w approach for specifying the acoustic performance of the building envelope avoids these difficulties and provides certainty. This approach is used in both the Wellington and Dunedin District Plans.

No complaint clauses

The use of caveats and ‘no complaints’ notations on land titles is being used more frequently as a means of limiting noise complaints from future landowners. A caveat can take the form of a notice attached to a certificate of title alerting owners to the presence of aircraft noise. This also has the effect of preventing occupiers from complaining about aircraft noise. A High Court decision (AP 78/96) has indicated that such caveats would not breach existing statutes (particularly the Bill of Rights Act), but it specifically did not consider whether such a caveat would be a reasonable method for controlling adverse effects.

Acknowledgements

This guidance note was prepared by the Ministry for the Environment based on the work of Malcolm Hunt of Malcolm Hunt and Associates. The Ministry for the Environment would also like to thank the following people and organisations for their input during the preparation this guidance note:

Jan Crawford, Planning Consultants Ltd,
Robert Schofield, Boffa Miskell Ltd.
Helen Atkins, Phillips Fox
Peter Frawley, Greater Bendigo City Council (formerly at Palmerston North City Council)
Nigel Lloyd, Acousafe,

Date of posting: December 2005

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