Managing noise through enforcement

Abstract

This guidance note is the fifth of seven guidance notes that form the RMA Enforcement Manual.

Noise is a word used to describe unwanted sound. But not all unwanted sound falls within the ambit of the RMA. This guidance note covers the RMA tools for managing noise, including:

context to managing noise through enforcement
which procedures? Pros and cons
the duty to adopt the best practicable option - s16
abatement notice for unreasonable noise
excessive noise, including the issuing of excessive noise directions
noise rules and consent conditions
imposing penalties - infringement notices and prosecution.

Guidance note

Context

The primary duty relating to noise under the RMA is contained in s16. Section 16 requires that noise is kept to a reasonable level by adopting the best practicable option. The duty applies to every person who occupies or carries out an activity within New Zealand 's territorial boundaries, including its coastal waters and the airspace above the land and water.

District plans (s31(1)(d)) and regional coastal plans (s30(1)(d)(vi)) may set out rules controlling noise, whether at source or receptor. An example of noise controlled at source is noise being emitted from a factory as measured at the site boundary. An example of noise controlled at receptor is emission controls that require acoustic design of living apartments in commercial centres, to reduce the level of noise to specific levels as received by occupants.

Noise emission controls relating to aircraft are limited to those prescribed by either a national environmental standard or set by a local authority in relation to the use of airports, not to overflying aircraft (see s9(5)).

Temporary noise issues can be dealt with efficiently under s326 and s327, which provide for intervention in the case of excessive noise.

This guidance note describes the different mechanisms of controlling noise, helps you understand their differences and describes when one mechanism may be more appropriate than another.

Duty to adopt best practicable option - s16

When does the s16 duty apply?

Section 16 of the RMA 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, defined in s2 of the RMA. Local authorities can set noise emission standards in plans and resource consents.

The s16 duty and any applicable rules are related: generally speaking, if the noise exceeds the standards set by the rules, it will be taken as unreasonable noise. However, the duty also sits alone: if a person complies with a national environmental standard, rule or applicable resource consent condition, the duty in s16 is not necessarily avoided. The occupier may still need to address what is unreasonable in the particular local conditions as shown in Ngataringa Bay 2000 Inc v AG & North Shore CC A16/94: "�even sophisticated district noise control rules cannot fully be responsive to local circumstances to ensure noise emissions do not exceed reasonable levels".

Enforcement of the s16 duty - general

There are three options for enforcement of the s16 duty:

application for an enforcement order
application for an interim enforcement order
issue of an abatement notice.

These options are not mutually exclusive and all may be used to enforce general duties under s16 (Groot v Tauranga District Council [1992] NP380/92).

(For more information about these mechanisms, see the Mandatory Directives Guidance Note).

The cases Hall and Stevens v Port Otago Ltd and Anor [1995] C36/95 and Skipworth v Queenstown Airport Corporation Ltd C73/98 demonstrate that enforcement orders can be used to enforce the s16 duty.

Abatement notice for unreasonable noise

Application and use of abatement notice

An abatement notice can be issued under s322(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 s16 to adopt the best practicable option to ensure noise emission from that land or water does not exceed a reasonable level.

The reasons for an abatement notice and the actions required must be stated with sufficient precision to provide a fair opportunity to the recipient to appeal the notice. This is because the recipient becomes liable for prosecution if failing to comply. The Planning Tribunal in Sykes and Three Bros Ltd v Rotorua District Council [1992] 1 NZRMA 233 made several points about the detail required in abatement notices for noise:

The Council had written to the recipient in January 1992, giving details of noise complaints. The Tribunal held that the reasons must be given in the notice, not in a letter.
The recipient was referred to Appendix 2 of the District Plan, but should have been referred to the particular part of Appendix 2 that was relevant.
The notice should state where and how the sound levels were measured.
The notice should take care to refer to the correct noise standards (the 1977 standards cited in the noticewere no longer current).
Precise details of the action to be taken to comply with the abatement notice must be given (only general options were provided in this case).

The importance of the abatement notice being accurate and specific was also demonstrated in Wilhelmsen v Dunedin City Council [1992] C059/92. Wilhemsen successfully appealed on grounds including:

The notice required the adoption of the best practicable option, but did not say what the best practicable option was.
An abatement notice must set out what the recipient is required to do (the notice used the words "may require you").
The notice referred to excessive notice (managed under s326 excessive noise directions, not an abatement notice).

Action in case of default against abatement notice

If the recipient of an abatement notice fails to comply with it, an enforcement officer may take reasonable steps to reduce the noise to a reasonable level. When accompanied by a constable, the enforcement officer may seize and impound the noise source (s323).

Where equipment is seized and impounded, the owner of the property or person from whom it was seized may apply to the local authority (or Police), at any time, to have the property returned (s336). The local authority or Police shall arrange for the return of the property if:

they are satisfied the return will not result in the emission of noise beyond a reasonable level; and
the applicant has paid all costs incurred by the local authority or Police in seizing, transporting and storing the property.

If the local authority or Police refuses to return the property, then the owner or person from whom is was seized, may apply to the Environment Court to order the return of the property. The Court may grant or refuse any such applications. (See also Duty to comply with direction/action in case of default - s328).

Excessive noise

Definition

Excessive noise is dealt with in ss326, 327 and 328 of the RMA. Section 326 defines excessive noise. Key features of the definition are:

It applies only to noise under human control (including that from a musical instrument, electrical appliance, machine, or explosion or vibration)
It can apply to noise from a person or group or persons (for example people in the outdoor courtyard of a bar).
The noise has to be of such a nature as to unreasonably interfere with the peace, comfort and convenience of any person (other than the person responsible of it),
It does not include noise form aircraft in flight (or immediately before or after), vehicles driven on roads, or trains (other than when being tested, maintained, loaded / unloaded).

Excessive noise direction - s327

An enforcement officer (or constable) may issue an excessive noise direction on receipt of a complaint, having investigated this and formed an opinion the noise is excessive. An excessive noise direction directs 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. This period of compliance applies from the time the direction is given.

Section 327 powers are in addition to powers under ss322 to 325, to issue abatement notices relating to unreasonable noise and to seek an enforcement order under s316.

Duty to comply with direction/action in case of default - s328

The recipient of an excessive noise direction must immediately comply.

In addition, everyone who knows, or ought to know, that a direction under s327 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 any of the following action:

seize and remove from the place
render inoperable by the removal of any part from
lock or seal so as to make unusable any instrument, appliance, vehicle, aircraft, train or machine that is producing or contributing to the excessive noise.

In addition to the above enforcement options for when an excessive noise direction is not complied with, s343C allows an enforcement officer to serve an infringement notice. Infringement notices carry a fine of $500 for offences concerning the contravention of an excessive noise direction (see Schedule 1 of the Resource Management (Infringement Offences) Regulations 1999).

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. 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
the address of the office at which enquiries may be made in relation to the entry.

Any enforcement officer exercising any power under s328 may use such assistance as is reasonably necessary.

The steps for complaint received by enforement officer or constable

Bazley v Police [1998] AP14/98 points to the benefits of having a constable present when equipment needs to be seized (due to Bazley and Fowler being convicted of assault). Importantly, relation to process and powers of the Police, this Court noted:

A constable who is acting on the request of an enforcement officer may receive a complaint; investigate the complaint; and if, of the opinion the noise is excessive, issue an excessive noise direction.
A constable cannot issue an abatement notice. (In this case excessive noise directions were issued, but had been incorrectly recorded in the statement of facts as abatement notices.)

Frost v Police [1996] 2 NZLR 716 has similarities to Bazley, though here the appellants argued that the abatement notice which had been served had been complied with immediately; as no subsequent abatement notice had been served, the Police were acting beyond their powers under s327. Judge Goddard noted that the appellants ' submission overlooked the fact that police were acting on a further complaint (referred to in evidence give by the local authority enforcement officer).

Which procedures? Pros and cons

The difference between the powers and procedures available under the RMA for noise should be understood in terms of the outcomes sought, rather than the type or amount of noise.

Noise can be exactly the same in the way of emission, reception, and measurement. Yet it is best dealt with as noise that exceeds a reasonable level in terms of s16, or as excessive noise in terms of an excessive noise direction under s327.

Nature of noise	Outcome sought	Tool
Noise from an ongoing activity	Having operators consider methods that will best ensure reasonable levels are achieved over the long term.	Section 16 - Best practicable option (requires the person responsible to consider alternatives, but also allows the local authority to educate the offender and negotiate the best possible outcomes).
Short-term noise	Immediate cessation or reduction of the noise to a reasonable level.	Section 327 - Excessive noise direction This will last 72 hours. If the noise does not stop, the enforcement officer, accompanied by a constable, can physically intervene to stop the noise.

When the best practicable option is being applied under s16, the interaction between the operator and the local authority may produce an unopposed abatement notice or enforcement order: that will provide a level of assurance for the public, and a practical and effective solution for the operator.

An abatement notice issued under s322(1)(c) is usually the most effective and efficient enforcement procedure for contravention of s16. In practice, however, a local authority should be aware that enforcing the s16 duty (and associated directives) may be quite time-consuming.

The 'best practicable option ' may take months to implement because of the requirements of design, sourcing new equipment and skills, testing the solution, and building it. Alternatively, relocating the activity to an environment where the noise will have less impact may also take a while.

If the operator is slow to cooperate, the local authority may feel compelled to seek an enforcement order. But a hearing may take several months to convene, unless the matter is urgent and justifies an interim application (see Application for interim enforcement order).

Section 327 is, at best, a stop-gap measure in a situation of ongoing activity producing unreasonable noise, but it is ideally suited to temporary noise issues. It has been used effectively to secure immediate relief to people seriously affected by noise (for example, hotel residents disturbed by rock-breakers used in demolition on an adjoining site), while negotiating alternative methodologies for reducing unreasonable noise for the duration of the works.

Penalties can also be imposed in relation to noise, by way of environmental infringement notice or summary proceedings (prosecution). For more guidance on use of penalties for noise, see below.

Noise rules and consent conditions

Abatement notices, applications for enforcement orders, interim enforcement orders and infringement notices can be used to enforce noise emission controls within a national environmental standard , a plan and in resource consent conditions. It is important to check the controls, rules or consent conditions are enforceable. While national environmental standard controls plan rules and consent conditions are often clear and concise (and can be enforced by law), some controls/rules/conditions have minor omissions or wording problems that can lead to difficulties.

Noise levels are typically determined by taking samples and arranging the results in order from loudest to quietest. The number that is 10% below the loudest measured level becomes the L10, often called the average maximum. Similarly, the L95, often called background level, is 95% below the loudest measured level (ie, nearly the quietest).

Sound energy is measured in decibels (dB) with most measurements being undertaken on the A-weighted (dBA) scale as this most closely matches the human ear. The scale is logarithmic rather than linear so noise increases tenfold for every additional one decibel unit recorded.

Guidance on noise management, the preparation of plan rules for controlling noise, and the setting of conditions can be found in the guidance notes on:

For general guidance on the drafting of resource consent conditions, see the Conditions of a Resource Consent guidance note.

Imposing penalties - infringement notices and prosecution

Infringement notices can be issued for one or more breaches of district or regional plan rules in relation to noise (breach of s9 is an offence under s338(1) and an infringement offence). They can also be issued for contravening an excessive noise direction under s327, and for breach of an abatement notice for unreasonable noise under s322(1)(c). As prescribed under the Resource Management (Infringement Offences) Regulations 1999, the penalties are:

$300 - for contravening s9 offences
$500 - contravening an excessive noise direction
$750 - contravening an abatement notice.

The amounts charged are relatively small and may not be a sufficient deterrent for some offenders. For more information on the use of infringement notices see the Imposing Penalties guidance note.

On prosecution, in the case of a natural person the maximum penalty of two years imprisonment or $300,000 fine and in the case of a person other than a natural person the maximum penalty of a $600,000 fine applies to breach of noise rules (s9) or breach of an enforcement order relating to noise. By comparison, the maximum penalty for breach of an excessive noise direction under s327 or an abatement notice for unreasonable noise under s322(1)(c) is $10,000. Enforcement officers should consider this significant difference in penalties, in deciding whether for example to apply for an enforcement order for more serious and ongoing emissions of noise, including actions by a potential defendant that are deliberate, reckless or negligent. Where an offence has been committed that involves a breach of a resource consent, the Court may, instead of or in addition to the maximum penalties above, make an order that requires a consent authority to review a resource consent under s128(2).

In Manukau City Council v F'eau and Longview Reception Lounge [1996] CRN 6048006284-6286, the Court fined F'eau$500 for not complying immediately with a noise abatement notice. The Court dismissed charges against the company (Longview Reception Lounge) on the basis that it had put into place mechanisms to keep noise to a reasonable level, and had told managers to strictly comply with directions issued by enforcement officer or police constable.

In Manukau City Council v Longview Reception Lounge and Pairama [1998] CRN 10480044067-068, failure to comply with an excessive noise direction for the full 72 hours required saw each defendant fined $1,500 and ordered to pay $750 towards the cost of prosecution.

Best practice examples

Scenarios

Scenario 1: Noise from a nightclub

The council receives a number of complaints between 11 pm and midnight about noise from the Shady Night Club. Enforcement officer Harry investigates together with a colleague . The view of both enforcement officers is that the noise is excessive.

Q1: What is the appropriate enforcement mechanism?

A1: An excessive noise direction should be issued. This should be given to the person in charge of the Shady Night Club. If the recipient fails to comply immediately, Harry should arrange for a police constable to accompany both enforcement officers onto the nightclub premises. Pursuant to s328(3) of the RMA, they can seize and remove from the nightclub, or render inoperable by the removal of any part from, or lock or seal so as to make unusable, any instrument or machine that is producing or contributing to the excessive noise.

Best practice examples of abatement notices

For examples of abatement notices in relation to the s16 duty, see Best practice examples - Abatement Notice Forms in the Mandatory Directives guidance note.

Relevant case law

Relevant case law has been referred to throughout this guidance note, with links to fuller summaries when appropriate.

Related guidance notes

Current challenges

Determining the Best Practicable Option under s16

This is usually a matter of common sense. For example, carrying out major road-works during the night on a suburban road would not be the Best Practicable Option (BPO), but doing the works during normal working hours would certainly be a big step towards achieving it. Similarly, establishing a nightclub abutting residential dwellings in an unlined, corrugated iron-clad building would not be the BPO. Acoustically treating the building might help in approaching the BPO, but choosing an alternative location away from sensitive areas where the local authority has specifically allowed for such activities, would probably be the way to go. If you have an in-house noise specialist, you should consult that person. If not, and you are in some doubt, you may wish to contact an external noise consultant.

Acknowledgments

Quality Planning would like to make the following acknowledgments.

Published October 2009.

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