Duty to avoid, remedy or mitigate adverse effects on the environment

The RMA states that every person has a duty to avoid, remedy, or mitigate any adverse effect on the environment arising from an activity carried on by or on behalf of the person. Although this duty is not of itself directly enforceable, ⁴⁶⁶⁹ an enforcement order or abatement notice may be made or served under the Act. In deciding whether or not to grant an enforcement order the Court will assess:

• Whether in the opinion of the Court, it is or is likely to be noxious, dangerous, offensive or objectionable; ⁴⁶⁷⁰
• If so, whether it is of such extent that it is likely to have an adverse effect on the environment; and
• Whether in all the circumstances the Court’s discretion should be exercised and an enforcement order made.

Duty to avoid unreasonable noise and vibration

Under the RMA every occupier of land is required to adopt the best practicable option to ensure that the emission of noise (including vibration) from that land does not exceed a reasonable level. ⁴⁶⁷¹

“Best practicable option” means the best methods for preventing or minimising adverse effects on the environment having regard to: ⁴⁶⁷²

1. The nature of the noise and the sensitivity of the receiving environment;
2. The financial implications, and the effects on the environment, of that option; and
3. The current state of technical knowledge and the likelihood that the option can be successfully applied. 

The duty to avoid unreasonable noise and vibration is not necessarily avoided by complying with a district plan rule on noise and vibration control. ⁴⁶⁷³  What amounts to a reasonable level depends on the context and the character of the noise. ⁴⁶⁷⁴  The Environment Court has noted that rural residents are entitled to a quieter lifestyle than those who live elsewhere. ⁴⁶⁷⁵  In a case involving noise generated from the testing of racing cars the Court stated that the noise had an intrusive pitch that was particularly destructive of amenity and the annoyance was exacerbated because it stopped and started without warning.

Nelson City Council v Harvey ⁴⁶⁷⁶  concerned noise complaints against a firing range. It was estimated that relocation of the activity would cost $35,000. The Court found that despite the fact that the activity was longstanding at the site and that the firing range was a permitted activity this was substantially outweighed by the finding in respect of the “FIDOL factors” (frequency, intensity, duration, offensiveness/character, and location) which the court used as the means of determining the reasonableness of the noise. The Court concluded that the noise from the rifle range exceeded a reasonable level. The change in the environment from agricultural to rural-residential was particularly significant.

Thompson v Davidson concerned noise from a kennel and cattery. The Court stated that noise that disturbs people's sleep, particularly during normal sleeping hours at night, and which also disturbs the reasonable use and enjoyment of their property during the day can be characterised as unreasonable unless there is some basis for saying the recipients of that noise are themselves hypersensitive. The Court determined that there had been times when the noise was at an unreasonable level. The outcome of the proceedings was an adjournment to allow parties to attempt to reach agreement on measures to be taken to ensure the noise is reasonable.

Is the noise or vibration offensive or objectionable?

“Offensive” and “objectionable” refer to an activity whose effect on an ordinary reasonable person would necessarily be considered offensive and objectionable. ⁴⁶⁷⁷ In undertaking this assessment the Court acts as the representative of the community at large.

The “environment” is a complex entity which includes people (and the social, economic, aesthetic, and cultural conditions which affect people) and amenity values (which means those natural or physical qualities and characteristics of an area that contribute to people's appreciation of its pleasantness, aesthetic coherence, and cultural and recreational attributes). 

In Thompson v Davidson ⁴⁶⁷⁸ the Court considered whether the noise was having an adverse effect on the environment. It determined that “environment” does not need to be defined so widely as a whole town, but may be as narrow as the immediate neighbourhood. The Court had reservations as to whether the local neighbourhood was adversely affected in this case, as distinct from the noise having an adverse effect on the Thompson’s personally. The Court also had difficultly characterising the noise of barking dogs as offensive or objectionable.

In Nelson City Council v Harvey ⁴⁶⁷⁹ the Court also considered whether the noise was offensive or objectionable. The Court also utilised the FIDOL factors (frequency, intensity, duration, offensiveness/character, and location) for this assessment. The Court concluded that the noise from the rifle range was offensive or objectionable.

Reverse sensitivity 

Conflicts may arise where new land users object to existing activities in a given location e.g. airports, train stations, quarries. The vulnerability of the existing user to the legal objections of the new noise sensitive users is described as reverse sensitivity. ⁴⁶⁸⁰ This is seen more frequently with the development of rezoned rural land where new residential activities may be incompatible with existing rural activities, and also with the establishment of noise-sensitive activities in zones that allow for much higher noise levels i.e. childcare centres in mixed-use or business zones. To protect existing activities district and regional plans may include specific rules preventing incompatible new activities establishing in close proximity. These usually protect activities which are considered to be of significant importance to the wider community such as airports, major roading, ports and other infrastructure. An example of a reverse sensitive rule in relation to noise is provided below.

 No complaints covenants 

No complaints covenants are sometimes used as a method of avoiding the potential effects of reverse sensitivity and are common for residential developments sited near infrastructure such as quarries, ports and airports. As part of consenting requirements a covenant is registered on the certificate of title to a piece of land that restricts the owner and future owners from complaining about the lawful noise emitted from a neighbouring property.