Noise
This chapter addresses the mechanisms available to control excessive noise and unreasonable noise, and to enforce noise conditions in a resource consent or a plan.
Excessive noise
Excessive noise is dealt with in sections 326, 327 and 328 of the Act.
Section 326
Section 326 defines “excessive noise”.
326. Meaning of “excessive noise”—
(1) In this Act, the term “excessive noise” means any noise that is under human control and 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), but does not include any noise emitted by any—
(a) Aircraft being operated during, or immediately before or after, flight; or
(b) Vehicle being driven on a road (within the meaning of section 2(1) of the Land Transport Act 1998); or
(c) Train, other than when being tested (when stationary), maintained, loaded, or unloaded.
(2) Without limiting subsection (1), “excessive noise”
(a) Includes noise that exceeds a standard for noise prescribed by regulations made under section 43; and
(b) may include noise emitted by
(i) a musical instrument; or
(ii) a machine, however powered; or
(iv) a person or group of persons; or
(v) an explosion or vibration
Figure: Issue of excessive noise direction
See figure at full size, including text description
Section 327
An enforcement officer (Pursuant to s 38(2) of the Act) (or constable) may direct 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.
The direction may be written or oral. The direction prohibits emissions of excessive noise for a maximum period of 72 hours or such shorter period as the enforcement officer (constable) specifies. Section 327 powers are in addition to powers under sections 322 to 325 to issue abatement notices relating to unreasonable noise and to seek an enforcement order under s 316.
Section 328
The recipient of an excessive noise direction must immediately comply.
Everyone who knows, or ought to know, that a direction under s 327 has been given in respect of a particular place must comply with the direction as if he/she were the recipient, while on or in the vicinity of that place.
Section 328(3) provides that if the direction is not complied with, an enforcement officer accompanied by a constable (or a constable alone) may enter a property and take the following action:
If an excessive noise direction cannot be given because there is no-one occupying the place from which the sound is being emitted, or the occupier cannot be identified, and there is no other person who appears to be responsible, an enforcement officer accompanied by a constable may enter the premises and take the above action, but a written excessive noise direction must be left in a prominent position together 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, and the address of the office at which enquiries may be made in relation to the entry.
Any enforcement officer exercising any power under s 328 may use such assistance as is reasonably necessary.
Case example A
Bazley v Police
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 s 323 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 it 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 s 327(1) direction.
Justice Young in the decision referred to s 327. 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”.
We have spoken to staff at the Invercargill City Council about the case and they have confirmed 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 s 322(1)(c) and not sections 327 and 328. The police do not have authority to issue an abatement notice. An abatement notice can only be issued by an enforcement officer.
4/09/98, Young J, HC Invercargill AP14/98.
Case example B
Frost v Police
There were three appellants: Frost, O’Riley and Pearce. Frost appealed a conviction of obstruction of a constable acting in the execution of his duty, O’Riley appealed a conviction of assault of a constable acting in the execution of his duty, and Pearce appealed a conviction of wilful obstruction of a constable acting in the execution of his powers under the Misuse of Drugs Act 1975.
One of the grounds of appeal was that the police were not acting in the execution of their duty because they were not lawfully exercising powers under sections 327 and 328 of the RMA.
The appellants argued that the pre-condition of s 328 is that the direction in an “abatement notice” must have been immediately ignored before an enforcement officer (with or without a constable) might enter onto a property without further notice under s 328(3). The appellants submitted that, as the direction given by the enforcement officer at 10.30 pm was immediately complied with, and there was no “verified evidence of the substance of any subsequent alleged complaint”, nor any subsequent “abatement notice” served, the police were not exercising powers under the RMA lawfully when they entered the property at 1.30 am the next morning.
Goddard J noted that the appellants’ submission overlooked the fact that the enforcement officer gave evidence of receiving a further complaint.
(1996) 2 NZLR 716 (HC).
Prosecution
It is an offence to contravene or permit a contravention of an excessive noise direction (RMA section 338(2)(c)). The maximum fine is $10,000 and the maximum fine if the offence is a continuing one is $1,000 per day or part of a day (s 339(2)).
Case example C
Rodney District Council v Goffin
Goffin was directed by an enforcement officer (via written notice) to reduce the noise at a residential property to a reasonable level. The noise was turned down marginally but remained excessive.
The enforcement officer was then set upon by four or five of the occupants. The enforcement officer retreated, obtained police assistance and returned and found the noise had not been reduced to a reasonable level. The audio equipment was seized. Goffin did not appear in Court and the prosecution proceeded by formal proof. Goffin was convicted and fined $500.
18/09/95, Judge Sheppard, DC Auckland CRN 5044013469.
Case example D
Manukau City Council v F’eau and Longview Reception Lounge (1980) Ltd
Longview Reception Lounge operates a nightclub in Howick. 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.
10/09//96, Judge Treadwell, DC Auckland CRN 6048006284-6286
Case example E
Manukau City Council v Longview Reception Lounge (1980) Ltd and Pairama
Longview Reception Lounge and Pairama pleaded guilty at the conclusion of the prosecution case. The facts were that on 13 June 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.
18/05/98, Judge Bollard, DC Auckland CRN 10480044067 and 068
Unreasonable noise
Section 16 of the Act imposes a duty on occupiers of land and users of the coastal marine area to ensure that noise levels are kept at a reasonable level by adopting the best practicable option. Local authorities can set noise emission standards in plans and resource consents.
Enforcement of s 16 duty
There are three options for enforcement of the s 16 duty:
An application for an enforcement order and/or an interim enforcement order can be made to enforce the s 16 duty(refer chapters 5 and 6 for information on application for interim enforcement and enforcement orders). The cases Hall and Stevens v Port Otago Ltd and Anor C36/95 and Skipworth v Queenstown Airport Corporation Ltd C73/98 are authority that show an enforcement order procedure is available to enforce the s 16 duty.
Abatement notice
An abatement notice can be issued under s 322(1)(c) requiring 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 s 16 to adopt the best practicable option to ensure noise emission from that land or water does not exceed a reasonable level.
If the recipient fails to comply, an enforcement officer may take reasonable steps to reduce the noise to a reasonable level and, when accompanied by a constable, to seize and impound the noise source.
Figure: Abatement notice process for unreasonable noise
See figure at full size, including text description
Points to watch
Sykes and Three Bros Ltd v Rotorua District Council
The Rotorua District Council issued an abatement notice to Michael Sykes and to Three Bros Ltd in January 1992. Sykes and Three Bros Ltd appealed the abatement notice. The Planning Tribunal found that there were a number of defects in the notice and the abatement notice was cancelled. Clauses of the notice are set out below together with the findings of the Planning Tribunal.
2. THE REASONS FOR THIS NOTICE ARE: I have reasonable grounds to believe that you are failing to comply with section 16 of the Act by not taking the best practical option to ensure that the emission of noise from the above location does not exceed a reasonable level. |
The notice should state where the sound levels were measured and how the sound levels were measured. The notice did not specify with any particularity the grounds on which it was made. This is very important because its recipient may be liable for prosecution if they fail to comply. 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. |
3. THE ACTION REQUIRED TO BE TAKEN UNDER SECTION 322(1)(C): Is to reduce the emission of noise to a reasonable level at all times. |
The details in clause 3 are not precise. Precise details of the action to be taken must be given. |
5. THE FURTHER CONDITIONS imposed by this notice are: A “reasonable level” will be achieved when noise emissions do not exceed the level set out in Appendix 2 of the Rotorua District Plan, a copy of which is enclosed. |
The recipient was referred to Appendix 2 of the District Plan and should have been referred to the particular part of Appendix 2 that is relevant. |
The Rotorua District Council issued another abatement notice to Sykes and Three Bros Ltd in May 1992. A copy of the abatement notice issued is given in Appendix 5B. Sykes and Three Bros Ltd appealed the abatement notice. The appeal was dismissed and the abatement notice confirmed (A163/92 – though the tribunal amended the notice so that it took effect seven days after the date of the tribunal decision).
(1992) 1 NZRMA 233.
Points to watch
Wilhelmsen v Dunedin City Council
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.
- 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 held that the enforcement officer did not have reasonable grounds to issue the notice because she did not make adequate enquiries.
Wilhelmsen applied for costs against the Council. Costs of $500 were awarded (Decision on costs C085/92.). The Planning 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.
C059/92.
Which mechanism?
An enforcement officer should give careful consideration to the individual circumstances of the case and the desirable outcome when deciding on which mechanism to use. Comments from Malcolm Hunt of Malcolm Hunt Associates (an experienced noise consultant)are as follows:
Good practice tips
- While it is usually appropriate to use the abatement notice or enforcement order approach for ongoing industrial or commercial activities, there may be unusual circumstances where the excessive noise direction notice would result in the best outcome. These circumstances would be where there was an unusual and extremely noisy event (such as a burglar alarm or malfunctioning equipment) that was causing a problem and required immediate attention (eg, via the powers to enter a premises if no person is present).
Enforcement of a rule in a plan, or a condition in a resource consent
Abatement notices, applications for enforcement orders or interim enforcement orders can be used to enforce noise rules in a district plan or resource consent conditions. It is important to check that the rules / consent conditions are enforceable. While some district plan rules / consent conditions are clear and concise (and can be enforced at law), some rules/conditions have minor omissions or wording difficulties that can lead to difficulties.
Note that the duty in s 16 is not necessarily avoided by compliance with a district rule / resource consent condition on noise control.In Ngataringa Bay 2000 Inc v The Attorney-General & North Shore City Council A16/94: the court said “...even sophisticated district noise control rules cannot fully be responsive to local circumstances to ensure noise emissions do not exceed reasonable levels”.
Appendices
Appendix A: Abatement Notices: Precedent
Precedent for abatement notice under s 322(1)(c) of the RMA
Abatement notice (Word document 30KB)
Appendix B: Rotorua District Council Abatement Notice
