Appendix B: Rotorua District Council Abatement Notice

Appendix B, presents an abatement notice issued by Rotorua District Council to Sykes and Three Bros Ltd for a good example for the "reasons for the notice" and "action required", but note the comments.

Comments on the abatement notice

The Rotorua District Council issued an abatement notice to Michael Sykes and his company Three Bros Ltd in January 1992. Sykes and his company appealed the notice. The Planning Tribunal cancelled the abatement notice because the notice was defective.

The Council issued another abatement notice to Sykes and his company in May 1992. Sykes and his company appealed the notice. The Tribunal dismissed the appeal and confirmed the abatement notice.

A copy of the second abatement notice is on the following pages (refer also to Points to Watch, Relevant sections of the Act). The notice is a good precedent. However, take note of the following comments by Malcolm Hunt, a noise consultant.

The second abatement notice issued to Sykes and Three Bros Ltd refers to the 1977 standards. The 1977 standards are no longer current and have been replaced with 1999 versions of NZS6801 and NZS6802.
Noise-level measurements should refer to their being “measured in accordance with the provisions of NZS6801:1999” rather than the note at the end of clause 2.
The comments attached to the listing of noise-level measurements should not refer to the word “excessive”, and should be aligned with the assessment procedures outlined in NZS6802:1999 (particularly whether the sound contained “special audible characteristics”).
Clause 5 (Further Conditions) refers to some outdated standards. The words “corrected noise level” are only relevant to NZS6802:1977 and are no longer used.

Since this abatement notice was issued there have been changes that mean some parts of the notice would now be inaccurate. Form 27 has now been replaced by form 48. An appeal is required to be lodged within 15, not 7, working days and the lodging of an appeal against an abatement notice under section 322(i)(c) will not act as a stay. The Planning Tribunal is now the Environment Court.

Rotorua District Council
Abatement Notice under Section 322 of the Resource Management Act

To: Michael Gerald Peter Sykes, and to Three Brothers Ltd
Both of Towers Nite Club. 12-14 Eruera Street, Rotorua

1. Location in respect of which abatement notice applies:

Towers Nite Club, 12-14 Eruera Street, Rotorua, being the land described as part of Section 6, Block XLVI, Rotorua Town.

2. The reasons for this notice are:

That 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.

Those grounds include but are not limited to:

The following brief resume of complaints received, and other specific activity related to the emission of noise from the premises:

Date	Time	Source	Action
5 December 1991	00:54	Band	Verbal warning to M. Sykes. Keep fire doors closed.
6 December 1991	11:00	Band	Verbal warning to M. Sykes.
6 December 1991	23:46	Band	Verbal warning to M. Sykes.
7 December 1991	00:36	Band	Verbal warning to M. Sykes.
7 December 1991	01:30	Band	Noise level measured at 52dBA. Excessive notice 77 issued to M. Sykes. Noise reduced to 40dBA
12 December 1991	10:30	Band	Complaint from Rotorua Youth Hostel Manager - guests could not sleep until 3.00am.
12 December 1991	22:15	Band	Noise level 50dBA. Verbal warning to M. Sykes.
12 December 1991	23:59	Band	Noise level 46dBA. Manager reduced noise to 41dBA.
13 December 1991	23:56	Band	Noise level 55dBA. Verbal warning, noise reduced.
13 December 1991	01:12	Band	Complaint from Youth Hostel. M. Sykes sighted Enforcement Officer. Noise reduced to 40dBA.
16 December 1991	A written warning letter was sent to the Three Bros. Ltd requiring that they comply with Section 16 of the Resource Management Act and adopt the best practicable option to reduce the noise emission from the Towers Nite Club to those levels specified in Table A of Appendix 7 of the Rotorua District Scheme
19 December 1991	22:38	Band	Noise level considered excessive. Council Officer attempted to serve excessive notice on M. Sykes. He refused to accept it but he turned the band down.
20 December 1991	Application for Special License by Three Bros. Ltd. to Rotorua District Licensing Agency for New Year's Eve. Objections from Managers of Amber Lodge and Youth Hostel. The applicants stated that a polystyrene wall had been erected at rear of premises. Acoustic tiles to night club ceiling. That the fire doors would not be left open. The special licence was approved subject to reasonable levels of noise. There were no noise complaints on New Year's Eve.
20 December 1991	01:29	Band	Noise not unreasonable.
21 December 1991	00:05	Band	No noise on arrival at 00:14
22 December 1991	19:45	Band	No noise. Complaint from Youth Hostel.
22 December 1991	22:47	Band	Noise 55dBA. Verbal warning. Reduced to 50dBA
	01:00	Disco	Band finished. Disco measured at 42dBA.
26 December 1991	23:30	Disco	Noise 42dBA.
29 December 1991	23:15	Band (Dance exponents)	Noise level 55-57dBA. Peaks of 70dBA. Verbal warning M. Sykes advised he was cancelling bands.
4 January 1992	00:50	Band	Noise level 55dBA. Peaks of 60dBA. Excessive Notice 79. Issued to M. Sykes. Noise level reduced to reasonable level.
17 January 1992	15:00	An abatement notice issued under Section 16 of the Act was served on Michael Sykes and Three Bros Ltd at the Towers Nite Club by D.A. Gray, Enforcement Officer and witnessed by J.G. Morgan, Enforcement Officer. M. Sykes was advised of his appeal rights. He became agitated and obstructed the two Enforcement Officers from leaving the premises and threatened D.A. Gray. His wife intervened and quietened him down.
17 January 1992	23:30	Band	50-53dBA. Verbal warning.
20 January 1992	Letter from Motel Association advising that Mr & Mrs Cook, the operators of Amber Lodge had been verbally abused by Towers Nite Club staff
22 January 1992	A notice of appeal against the issue of an abatement notice was received from M. Sykes and Three Bros. Ltd.
25 January 1992	00:50	Band	Noise level 45dBA. Discussed with M. Sykes. Noise reduced to 40dBA.
25 January 1992	01:32	Band	Noise level reasonable.
30 January 1991	23:45	Band	Noise level 45-50dBA
31 January 1992	01:42	Band	46-50 dBA.
1 February 1991	Letter received from Manager of Rotorua Youth Hostel complaining that throughout December 1991 and January 1992 the management of the Towers Nite Club had been leaving the front doors of the nite club open facing the Youth Hostel preventing guests from sleeping those bedroom units facing the nite club.
1 February 1992	02:00	Band	Noise reasonable
2 February 1992	00:00	Band	Noise level 50dBA. Verbal warning to M. Sykes.
6 February 1992	23:55	Band	Noise level 64dBA. Excessive notice 82 served on M. Sykes. Band stopped. Disco turned on - noise level reasonable.
13 February 1992	22:45	Band	Noise level 45dBA. Excessive notice 83 served on M. Sykes.
15 February 1992	23:50	Disco	Noise level 43 dBA.
21 February 1992	00:00	Band	Complaint from Manager of Kingsgate Hotel. Noise excessive. Excessive notice 84 served on M. Sykes.
19 March 1992	23:20	Disco	Noise reasonable.
25 March 1992	15:53	Complaint from Manager of Youth Hostel. The Exponents Band were practising
25 March 1992	16:00	Visited Towers with Police Sargeant, served a warning letter on M. Sykes
25 March 1992	22:05	Band	Noise level 55dBA. Band finished.
25 March 1992	22:50	Band	Noise level 55dBA. Exponents band. Officer requested police assistance. Excessive notice 87 served on M. Sykes and Band at 23:45.
26 March 1992	00:25	00:25	50dBA. Rear fire doors open.
26 March 1992	01:30		Visited police station. No police available for seizure. Revisited Towers, had door closed.
1 April 1992	23:30	Band	Front doors open. Verbal warning - doors closed.
2 April 1992	00:20	Band	Verbal warning. Noise turned down.
15 April 1992	23:23	Disco	Noise reasonable.
6 May 1992	23:22		Not excessive on arrival.
16 May 1992	02:30		Noise excessive up to 50dBA and subjectively loud. Excessive Noise Notice no. 88 served M. Sykes etc at 2:38am. Mr Sykes abusive to officers.
17 May 1992	00:05		Not excessive on arrival

Note:
Noise readings referred to in this section have been taken at or near affected residential boundaries using sound level meters meeting the standard for Type 2 specifications of IEC 651 or IEC 804 International Standards.

3. The action required to be taken under section 322(1)(C)

You are required to adopt the best practicable option of ensuring that the emission of noise from the Towers Nite Club premises does not exceed a reasonable level. Without limiting the meaning of "best practicable option" it may include:

a) Limiting noise levels produced by bands or equipment within the building; or

b) Controlling emission of noise from the building via doors, windows, ventilation systems, and similar acoustic openings; or

c) Modifying the building walls, ceilings, roof or similar components to minimise sounds transmission; or

d) Installing sound absorbing and suppressing material within the building so as to adequately reduce or contain any noise; or

e) Any combination of the above and may include other noise control methods.

4. The date on or before which that action must be taken or must cease is:

From 8 June 1992

The date cannot be less than seven days after the date on which the notice is served.

5. The further conditions imposed by this notice are:

a) A reasonable level will be achieved when noise emitted from the premises does not exceed the following levels for any period of time, or aggregated periods of time, greater than 6 minutes in any period of one hour.

Corrected noise level at the boundary of the nearest affected residential properties

Monday - Sunday inclusive.

7.00am - 8.00pm	50 dBA
8.00pm - 10.00pm	45 dBA
10.00pm - 7.00am	40 dba

b) A reasonable level will further be met when in addition to (a) above, the maximum noise level observed at any time measured at the boundaries of the nearest affected residential property and measured as "L max" does not exceed the following levels:

Monday - Sunday inclusive.

7.00am - 8.00pm	60 dBA
8.00pm - 10.00pm	50 dBA
10.00pm - 7.00am	45 dba

c) Measurements in all cases to be made at or near the nearest boundaries of the affected properties facing the noise source, in accordance with standard rules of practice as generally described in NZS 6801:1977.

d) Measurements shall be made by either manual or automatic methods using a sound level meter which meets or exceeds the requirement of the type 2 specifications of either 1EC 651 or 1EC 804 International Standards.

e) All meter readings shall be "corrected" where necessary in accordance with NZS 6802:1977 before being considered in respect of levels set in paragraph (a) above.

f) In measuring noise levels, only readings made in the absence of specific identifiable noise peaks from sources other than the Towers Nite Club premises, and which in the judgement of the enforcement officer are of noise predominantly attributable to those premises shall be considered or aggregated.

6. Failure to comply with this notice made under Section 322(1)(c) may lead to further enforcement in terms of Section 323(2) which allows an Enforcement Officer to enter the place (with a constable if the place is a dwelling house) and:

a) Take all such reasonable steps as the Enforcement Officer considers necessary to cause the noise to be reduced to a reasonable level; and

b) When accompanied by a constable, seize and impound the noise source.

Any property seized under Section 323 may be returned to the occupier in accordance with Section 336.

You have the right to appeal to the Planning Tribunal against the whole or any part of this notice.

Any appeal must be lodged with the Planning Tribunal and served on the Rotorua District Council within seven days of this abatement notice being served on you.

The last day on which you may lodge the appeal and serve the copy is 4 June 1992.

The lodging of a notice of appeal will act as a stay of this notice until the appeal is heard.

Note: Further details regarding appeals are in the first schedule attached hereto.

8. The full name of the enforcement officer serving this notice is:

Donald Alfred Gray.

9.

I am acting under the authority of my appointment by the Rotorua District Council as an Enforcement Officer pursuant to Section 38(1) and the functions and powers set out in the warrant of appointment, issued pursuant to Section 38(5) of the Resource Management Act 1991.

10 The name and address of the local authority is:

Rotorua District Council, Hinemaru Street, Private Bag RO3029 Rotorua Ph (07) 348 4199 Fax (07) 346 3143.

11 Note:

If you do not comply with this notice and have not lodged a notice of appeal with the Planning Tribunal in accordance with Clause 7 above, you may be liable to prosecution under Section 338 of the Resource Management Act 1991. (Fines on conviction may be up to $10,000, and if the offence is a continuing one, to a further fine of up to $1,000 for every day the offence continues).

D.A. Gray
28 May 1992

1st schedule

Attaching to and forming part of the abatement notice

Issued to: Michael Gerald Peter Sykes, and to Three Bros. Ltd.

And dated: 28 May 1992.

Further information relating to appeals

(a) Section 325 of the Resource Management Act 1991

"325.Appeals-

1) Any person on whom an abatement notice is served may appeal to the Planning Tribunal in accordance with subsection (2) against the whole or any part of the notice.

2) Notice of an appeal under subsection (1) shall be in the prescribed form and shall -

(a) State the reasons for the appeal and the relief sought; and

(b) State any matters required by regulations; and

(c) Be lodged with the Planning Tribunal and served on the local authority or consent authority whose decision is appealed within 7 days of service of the abatement notice on the apellant.

3) Lodgement of a notice of appeal under subsection (2) acts as a stay of the abatement notice pending the Tribunal's decision of the appeal.

4) Section 289 (reply to appeal) does not apply in respect of any appeal lodged under this section."

b) The prescribed form referred to in Section 325(2) is set out as follows.

Form 27

Notice of Appeal

Name and address of appellant:
Name of respondent:
Nature of decision appealed against:
Date of notification of decision or issue of abatement notice:
Reasons for appeal:
Relief sought:

[Signature of appellant
or person authorised
to sign on behalf of appellant]

[Date]

Address for service of appellant:
Telephone No:
Fax No:

Annexures:

(a) Copy of abatement notice (if applicable)

(b) Names and addresses of persons to be served with a copy of this notice of appeal.

The Registrar, Planning Tribunal, 5th Floor, District Court Building, 49 Ballance Street, PO Box 5027, Lambton Quay, Wellington.
Ph (04) 4721 709 Fax (04) 4711 263

(d) The address of the Rotorua District Council for service of any notice of appeal is:

Rotorua District Council, Hinemaru Street, Private Bag RO3029 Rotorua

PH (07) 348 4199 Fax (07) 346 3143.

(e) Your attention is drawn to the last date for lodging an appeal set out in clause 7 of the notice.