This section outlines matters relating to the use of land for agricultural aviation activities and the interface with the RMA including amenity and reverse sensitivity issues. It is focused on four main issues:

• Providing for the use of land for agricultural aviation activities:
  • Rural airstrips and helicopter landing areas.
  • Aircraft noise
  • Storage, loading and mixing.
• Reverse sensitivity.

Providing for rural airstrips and helicopter landing areas

Aircraft undertaking agricultural aviation operations need appropriate areas for landing and take-off – both at a base and on-farm. Fixed wing aircraft require an airstrip and helicopters require a flat landing area. Usually an operation will have a specific base for regular on-going use. Often such bases are located at airfields or aerodromes, while helicopter bases can be more flexible in location. On-farm fixed wing aircraft will use established farm airstrips while helicopters will land in an area suitable for the operation being undertaken, often located near roads or tracks for access by ground crew.

The nature and scale of the two different areas is significant given that the use of on-farm facilities is intermittent and directly linked to the rural activity that the aircraft is providing services to, as opposed to the regular use of a base for the aviation activity. Therefore the consideration of the two types of landing areas within a regulatory context needs to be cognisant of the type of activity being undertaken. It is reasonable that a council would want to control the use of land for regular landings and take-offs, such as from a heliport, depot or base. But given the intermittent nature of agricultural aviation on rural properties, there needs to be clarity as to whether a council seeks to control the use of land in such circumstances.

Management options for rural airstrips and helicopter landing areas under the RMA

The use of land is controlled by territorial authorities (city, district and unitary councils) under section 9 of the RMA. Section 9(5) limits council control in respect of overflying aircraft to where noise emission controls have been set for airports. Therefore the extent of the control is limited to the use of the land for the activity, including repairs and maintenance of aircraft and the construction of hangars, fuel storage facilities and other ancillary structures. In respect of overflying aircraft, control is limited to the noise associated with take-off and landing of the aircraft.

The RMA defines airport as:

‘Any defined area of land or water intended or designed to be used, whether wholly or partly, for the landing, departure, movement or servicing of aircraft’.

This definition of airport would include rural airstrips and landing areas used by aircraft for agricultural purposes on an intermittent basis.

There are a range of ways that district plans can provide for the use of land for rural airstrips and helicopter landing areas used intermittently. The style adopted in the drafting of rules will influence how that is done, but could include:

• No specific provisions for rural airstrips and helicopter landing areas. The presumption of s9 would apply so such activities are provided for as of right. However care would need to be taken to ensure that other plan provisions do not capture the activity by default, or such activities are not caught by a ‘catch all’ provision for activities not listed in the plan (e.g. any activities not covered under the plan provisions are discretionary or non-complying).
• Specifying rural airstrips and helicopter landing areas used intermittently as an activity ancillary to farming or rural production activities, and relying on provisions relating to ancillary activities. Any standards applying to the farming or rural production activity would need to be drafted having regard to the use of land for agricultural aviation activities, particularly the use of rural airstrips and helicopter landing areas.
• If the plan rules are activity based, provision could be made for the use of land for agricultural aviation activities as permitted activities or activities requiring consent, by:
  • including rules applying to all types of airports, but applying different standards for rural airstrips and helicopter land areas; or
  • including specific rules for rural airstrips and helicopter landing areas used intermittently.

For example, a controlled activity status could be applied to rural airstrips and helicopter landing areas where the rural aviation activities are undertaken on the same property as the landing and take-off site. Where a council considers a non-complying status more appropriate for aviation activities, consideration could be given to a discretionary status for rural airstrips and helicopter land areas where landing and take-off occurs on the same site as the rural aviation activities.

Where rules are included in a district plan, standards or conditions applying to rural airstrips and helicopter landing areas could specify the frequency of use or setback distances. For example, the frequency of use (or what constitutes an intermittent use) could be determined by specifying an annual allocation in a standard. Determining appropriate setback distances from neighbouring properties can assist in addressing amenity effects from rural airstrips and helicopter areas, and is an important consideration to ensure that permitted developments on adjoining properties are not subject to reverse sensitivity from newly established rural airstrips and helicopter landing areas.

There may also be the need to allow for the location of helicopter landing areas to move as the target area moves (as is often the case for VTAs). Non-compliance with one or more conditions could be considered as a restricted discretionary activity, with the council only assessing and considering the matter of non-compliance.

Separate definitions are required where rules apply to different types of airports, such as commercial airports, informal airports, rural or on-farm airstrips, or landings for non-commercial purposes.

Changes of land use in proximity to an existing rural airstrip, such as subdivision, can affect the operation of the airstrip. While there is the potential for reverse sensitivity effects (see ‘reverse sensitivity’’), there is also the potential to affect flight safety where new dwellings are located near the flight path. Airstrips are required to be designed and maintained in a way that makes them ‘fit for purpose’ for heavily loaded agricultural aircraft. To be ‘fit for purpose’ CAA Rule 137 requires that the defined area following the departure point must be free from obstacles and third parties. Therefore new activities within the defined area could affect the integrity of a rural airstrip and render it inoperable as the CAA Rule could not be met. Therefore the location of existing rural airstrips should be a matter considered at the point of subdivision.

Aircraft noise

Noise is generated by aircraft taking off and landing – it cannot be avoided. However the potential adverse effects of the noise will vary depending on the location, nature and scale of the airport activity, ranging from international airports through to rarely used rural airstrips. The mechanisms used to manage the effects of noise should relate to the location, nature and scale of the activity.

In terms of agricultural aviation the location, nature and scale are such that the activity is undertaken in rural areas on an intermittent basis, and is essential to rural production systems. The nature of the activity means that the operator may need to fly the aircraft continuously at a low level to achieve predictable positioning of the products being discharged. This requirement creates an issue in that the potential noise nuisance from low flying aircraft is greater than aircraft flying more than 1,000 feet above ground level.

As a result, the activity can give rise to complaints about aircraft noise, particularly when aircraft operate at low levels near sensitive activities.

Management options for aircraft noise under the RMA

Section 16 of the RMA requires an operator to avoid unreasonable noise by adopting best practicable options to ensure that the level of noise does not exceed a reasonable level. However, there are no directly relevant standards[1] or case law[2] that assists councils to establish provisions to manage noise effects from infrequently used airports or landing areas during take-off and landing. Councils’ enforcement controls in relation to excessive noise specifically excludes noise from aircraft being operated during or immediately before or after flight (s326).

Territorial authorities can manage the potential adverse effects of aircraft noise by ensuring the district plan recognises the activity as a legitimate part of the farming or rural production activity in the rural area and having an appropriate policy framework to address such effects. However, council control is limited to managing aircraft noise at take-off and landing, not noise that is generated in-flight. In an agricultural aviation context that means controlling the noise levels at take-off and landing from the rural airstrip or helicopter landing area. Setting such provisions can be problematic in that defining take-off and landing is subject to multiple variables, including the point at which an aircraft is in controlled flight as opposed to ‘take-off or landing’. Noise contours are often used for commercial airports but such an approach would be costly and difficult to implement for rural airstrips and would not reflect the nature and scale of the activity.

The aviation sector is conscious of the limited cover of legislation and has developed best practice standards and guidelines that seek to reduce adverse effects from aircraft noise. The Fly Neighbourly guideline produced by Helicopter Association International is applied by operators in New Zealand and NZAAA has developed a Code of Practice for Noise Abatement, which forms part of the AIRCARE™ programme. These are used alongside other noise abatement practices as measures for an operator to reduce the effects of noise.

A risk management approach can be applied to the management of noise from agricultural aviation aircraft as set out below.

The potential adverse effects from noise are:

• Noise nuisance or offensive/excessive noise for persons living in the vicinity of aircraft operations (including rural homesteads, rural-residential activities, or urban development).
• Noise nuisance or offensive/excessive noise for persons undertaking recreational activities within riverbeds, adjacent to water bodies, on Crown or other publicly owned land, or in private land (including golf courses, and areas used for hunting).
• Disturbance of stock.

The risks arising from aircraft noise are:

• Depending on the intensity of the noise, people may need to modify the manner in which they undertake activities, or cease altogether while aircraft are operating.
• Stock and domesticated animals may take fright and become injured.
• Complaints from people and subsequent investigation by councils.
• Limits may be placed on the activities of aircraft operators.

Pilot management options to minimise the effects of noise include:

• Identify sensitive areas and avoid these where possible or manage the timing of the operation.
• Advise potentially affected people prior to operations, with details of likely timing and duration.
• Operate quiet aircraft types if available.
• Adopt noise minimisation techniques to operate aircraft as quietly as possible.
• Discuss operations with staff at councils for a mutual understanding of the activity, its effects and rules required to be complied with.

Options for plan provisions to address potential adverse effects of noise:

• Include objectives and policies for "reverse sensitivity" that recognise the importance and effect of agricultural aviation operations.
• Require resource consents (land use and subdivision) to identify activities in the vicinity that could give rise to reverse sensitivity effects, and where these are present the means by which such effects will be avoided.
• Provide for agricultural aviation operations as a permitted activity, either:
  1. as part of farming or primary production activities; or
  2. as a separate activity with appropriate standards or conditions.
• Provide for a list of permitted activities in the vicinity of the site to be included on LIMS and PIMS. If agricultural aviation activities are included as a permitted activity in the district plan (as per above bullet point), information such as rural airstrips would be available to the landowner in their LIM and PIM.

Refer to the Quality Planning guidance note on Noise management in mixed-use urban environments for more information.

Storage, loading and mixing sites

As part of and prior to the aerial application of fertilisers, agrichemicals and VTAs there is generally a need to store these substances, mix them as required and then load them onto the aircraft. These activities have the potential to cause adverse effects if not appropriately managed and contained.

There are a number of HSNO controls that apply to the storage and handling of hazardous substances. These controls are based on the hazard classifications and quantity to be stored, including requirements for approved handlers, location test certificates, fire extinguishers, signage, and emergency response plans and secondary containment.

New Zealand Standard NZS 8409:2004 Management of Agrichemicals includes requirements for agrichemical storage which are best practice and consistent with the HSNO Act. If storage complies with these requirements additional controls should not be necessary through a district plan. This could be reflected through a permitted activity rule.

Management options under the RMA for storage, loading and mixing sites

Storage of hazardous substances is a land use issue that can be managed by regional councils and territorial authorities under the RMA. This creates the potential for duplication with controls under the HSNO Act. As previously noted it is particularly important that regional councils and territorial authorities do not duplicate hazardous substances controls in their regional and district plans. Controls should only be contained in regional or district plans where they add a higher degree of environmental protection that is appropriate to the local context.

The Quality Planning guidance on Managing Hazardous Substances – interface between the HSNO Act and the RMA provides examples of areas where councils may wish to consider RMA controls. These include:

• Storing hazardous substances within or adjacent to sensitive land uses and environments.
• Storing hazardous substances in areas prone to natural hazards.
• For sites or operations that store or use particularly large volumes of hazardous substances.

Some councils have taken a prescriptive approach of specifying thresholds over which storage of a substance would require resource consent. Where storage is temporary this is unnecessary and NZS8409 (Appendix L3.4) should be referred to. Some district plans address temporary storage in their hazardous substances section by providing rules to exempt this situation, subject to standards to avoid areas of potential inundation, to ensure the substances will not be windblown, and it is not located near property boundaries or waterways. Under the HSNO Act users must be given a Safety Data Sheet (SDS) when an agrichemical or VTA is purchased. HSNO controls specify what must be in the SDS. All the information on the hazards of substances and how they should be safely used, stored, transported and disposed of should be contained in the SDS for that substance. The SDS also describes emergency procedures, such as what to do in the event of a spill or fire.

Users can source a Product Safety Card (PSC) at the time of purchase. A PSC is a one-page document designed to collect all the relevant data on the hazard characteristics for specific agrichemicals. A Haznote™ is an example of a Product Safety Card (PSC see NZS 8409:2004). However, it should be noted that the SDS contains more information and detail than a PSC.

Reverse sensitivity

Reverse sensitivity is the term used to describe the sensitivity of some activities to other lawfully established activities in the vicinity. It is relevant to both regional and district plan matters. Regional plan matters may include odour, dust and spray drift, and district plan matters may include noise.

The Environment Court[3] has provided the following interpretation of reverse sensitivity:

Some lawfully existing activities may produce adverse effects on their surrounding environments, or at least they are perceived to do so. Reactions to those effects, or perceived effects, by way of complaints or actions in nuisance can stifle their growth or, in extreme cases, drive them elsewhere. That stifling, or that loss, may be locally, regionally or even nationally significant. If an activity likely to emit adverse effects seeks to come into a sensitive environment, the problem should be manageable by designing appropriate standards and conditions, or by refusing consent altogether. It is when sensitive activities (usually, but not always, residential activities) seek to establish within range of a lawfully established but effect-emitting activity that management may become difficult. This is the concept of reverse sensitivity…

Reverse sensitivity is the legal vulnerability of an established activity to complaint from a new land use. It arises when an established use is causing adverse environmental impact to nearby land, and a new, benign activity is proposed for the land. The "sensitivity" is this: if the new use is permitted, the established use may be required to restrict its operations or mitigate its effects so as not to adversely affect the new activity.

It is well settled law now that reverse sensitivity is an adverse effect, and is therefore to be avoided, remedied or mitigated.

In terms of agricultural aviation activities people may be sensitive to noise, dust and spray effects that are generated by aerial operations. Such sensitivity can lead to complaints and attempts to restrict or curtail the operation, even in established rural areas. Often complaints are directed at the aerial operator as the name or number of the aircraft can be determined, rather than to the landowner who has engaged the aerial operator.

As noted in the industry regulations and best practice section, there are a range of industry best practice and standards that operators use to ensure that the adverse effects of their application are minimised. However, this may not be sufficient for everyone, particularly those residents new to rural areas who see the operations as an imposition on their lifestyle. In addressing such complaints, it is important to recognise that the aerial operations are generally intermittent and short term in nature and only occurring on a limited number of days in any year.

It is also important for landowners who wish to establish a new rural airstrip or helicopter landing area to consider the potential that this new activity may create reverse sensitivity effects on adjacent properties where permitted activities currently operate from.

Management options under the RMA for reverse sensitivity

Many regional and district plans include provisions relating to reverse sensitivity, especially in the rural area. Noise, including aircraft noise, and the setbacks required for the safe operation of a rural airstrip can be explicitly included in such provisions.

It is important that any definition of reverse sensitivity is clear about where the sensitivity lies and the effect that it can have on lawfully established activities and that the plan adequately provides for agricultural aviation activities.

A policy framework that establishes that rural production activities, including aerial airstrips and operations, are part of normal rural production activities in the area enables the activity and any complaints to be assessed in that context. For example, some plans include a description of rural character to establish what activities and effects can be anticipated in the rural area.

Councils can also use non-regulatory methods such as providing information to landowners and including notices on Land Information Memorandums to draw a landowner’s attention to activities that can reasonably be expected in rural areas.

It is also important to consider the potential for reverse sensitivity from the establishment of new rural airstrips and helicopter landing areas. This can be addressed in district plans through the use of appropriate setback distances on the land that the airstrip/landing area is to be located on. It can also be addressed by including an encumbrance on a title for the adjoining land to create a no-build area.

 

Glossary

Agrichemical	Refer to section on ‘definition of agrichemical'
Buffer Zone	The distance between an identified sensitive area and the downwind edge of where an application is occurring
Bunded	An area which has a raised perimeter to prevent the escape of any spills
Controlled swath width	Defined distance across the spray pattern from a single pass
Fertiliser	Refer to section on ‘fertiliser definitions’
GROWSAFE®	Registered trade name of the NZ Agrichemicals Education Trust and name of the training course associated with NZS8409:2004 Management of Agrichemicals
Notification	Advising an affected party that an application or operation is to occur
NZS8409	New Zealand Standard 8409:2004 Management of Agrichemicals
Off target drift	The movement of airborne substances as droplets, vapour, solid particles or dust away from the target area
Operator	The organisation undertaking an operation. The operator may be a sole operator/ pilot or a larger organisation with a number of pilots.
PPE	Personal Protective Equipment (e.g. gloves, respirator)
Reverse sensitivity	Reverse sensitivity is when occupants of an activity complain about the effects of an existing lawfully established activity. This can have the effect of imposing economic burdens or operational limitations on the existing activity thereby reducing their viability.
Risk factor	The possible reasons why an adverse effect could occur
Sensitive areas	Sensitive areas (as defined in NZS 8409) are areas that have an identified risk profile near an agrichemical application site. The following are examples of sensitive areas (except where the area involved is the intended spray target). Check with the regional council however as there may be sensitive areas specified in the regional plan. -   Residential buildings; -   School buildings; -   Public places and amenity areas where people congregate; -   Public water supply catchments and intakes; -   Water bodies and associated riparian vegetation; -   Sensitive crops or faming systems (e.g., organic farms, greenhouses); -   Wetlands, indigenous vegetation habitat areas and reserves; -   Public roads.
Spray quality	The spray droplet size dependent on the nozzle used. Nozzle manufacturers will provide information on spray quality while the technical specifications are set out in Spray Nozzle Classification by Droplet spectra ANSI/ASAE S572.1 March 2009
Spray plan	Spray plan means: a Spray plan prepared consistent with NZS8409: 2004 Management of Agrichemicals Section 5.3 and Appendix M4. A template can be found on the GROWSAFE website www.growsafe.co.nz
Swath	The width of deposition from a single pass of an aircraft
Vertebrate Toxic Agents (VTAs)	ACVM Standard for VTAs definition - a toxic substance used to kill or reduce the viability of vertebrate animals. It does not include attractant or repellent substances that are not toxic.
Water body	RMA definition – means fresh water or geothermal water in a river, lake, stream, pond wetland or aquifer or any part thereof that is not located within the coastal marine area

 

 

Appendix: Summary of the AIRCARE™ programme

AIRCARE™ is an integrated accreditation programme for all of an aviation business and brings flight safety and environmental management together in one safety assurance programme. There are three parts to the AIRCARE™ programme:

• Pilot competency: Certification is evidence of competency – in this context pilots must hold a current Agricultural Rating which demonstrates the pilot’s competency to manage flight operations associated with applying all agricultural products. Under CAA Rule Part 61, a pilot must also have a Pilot Chemical Rating to apply agrichemicals and VTAs.

• Safety management system (SMS): The organisation (business) is required to run a safety management system. Accreditation is given to organisations able to demonstrate that the organisation has competent people – pilots and ground crew, and that they are operating using a robust and active safety management system. It is the organisation that is accredited, not the pilots.

• Third Party audit: An aerial organisation can attain AIRCARE™ accreditation only by satisfying an independent third party audit of the SMS and compliance with the relevant Codes of Practice for their operation.

Figure 1 represents the key compliance requirements for aerial operators under AIRCARE™. The left hand side sets out aviation flight safety and is mandatory under the Civil Aviation Authority Act 1990 for continued certification and licence to operate. The right hand side sets out the voluntary codes of practice covering environmental management. The four Codes of Practice (COP) that currently make up environmental management are:

• NZS8409:2004 Management of Agrichemicals COP (GROWSAFE^®);
• SPREADMARK™ (Aerial) COP for the Placement of Fertiliser in NZ;
• AIRCARE™ Environmental COP for Aircraft Operations - Aerial Application of Vertebrate Toxic Agents; and
• AIRCARE™ Environmental COP for Aircraft Operations - Noise Abatement.

 

Figure 1: AIRCARE™

 

The Safety Management System (SMS) is the management system operators utilise to manage their compliance with both the CAA Rules and the AIRCARE™ codes of practice. SMS is the way in which the entire organisation is run but in this context the focus is on those activities that have a direct bearing on environmental effects. The SMS audit has four main requirements:

• A quality assurance process.
• A procedure to identify hazards.
• A procedure to place controls on the hazards.

A procedure to measure the effectiveness of those controls (i.e. quality assurance and risk management).

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[1] Two standards refer to aircraft noise, however neither is intended to apply to infrequently used airports or landing areas and is therefore not designed to be applied to operations such as agricultural aviation:

• NZS6807:1994 Noise management and land use planning for helicopter landing areas
• NZS6805:1992 Airport noise management and land use planning

[2] In Dome Valley District Residents Society Inc. v Rodney District Council, the Environment Court considered options to manage noise emissions from helicopters taking-off or landing at a base. The Environment Court referred to the CAA requirement that aircraft operate above 500 feet and based the assessment on that requirement. However CAA’s Rule Part 137 provides an exemption to the general requirement relating to operational height for agricultural aircraft, so applying the 500 feet as a benchmark to agricultural aviation operations is not relevant or appropriate.

[3] Ngatarawa Development Trust Limited v The Hastings District Council W017/2008 [2008] NZEnvC 100 (14 April 2008)