Excessive Noise

Definition

Excessive noise is dealt with in sections 326, 327 and 328 of the RMA. Section 326 defines excessive noise. Key features of the definition in s326 of the RMA 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 (such as 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 for it).
  • It does not include noise form aircraft in flight (or immediately before or after flight), vehicles driven on roads, or trains (other than when being tested, maintained, loaded/unloaded).

Excessive noise direction - s327 of the RMA

An enforcement officer (or constable) may issue an excessive noise direction on receipt of a complaint after investigating the noise and forming 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 sections 322 to 325 of the RMA, 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 of the RMA has been given in respect of a particular place, must comply with the direction as if he/she were the recipient, while in, or in the vicinity of, that place.

Section 328(3) of the RMA 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 actions in relation to any instrument, appliance, vehicle, aircraft, train or machine that is producing or contributing to the excessive noise:

  • seize it and remove from the place
  • render it inoperable by the removal of any part from
  • lock it or seal it so as to make unusable.

Once seized, the offender can apply for the return of property (refer section 336 RMA).

In addition to the above enforcement options for when an excessive noise direction is not complied with, s343C of the RMA 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 one of the above actions to stop the excessive noise. 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 of the RMA may use such assistance as is reasonably necessary. These steps and options for controlling and enforcing excessive noise are illustrated in the diagram below.

managing noise

 

The benefits of having a constable present when equipment needs to be seized were highlighted in Bazley v Police [1998] AP14/98 (due to Bazley and Fowler being convicted of assault). Importantly in this case in 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 they are the opinion the noise is excessive may then issue an excessive noise direction.

  • A constable cannot issue an abatement notice.