Thursday, 1 June 2017

A "quiet" problem lurking all over New Zealand

How do we deal with situations where one person's activity on their property disadvantages a neighbour?

Dr Eric Crampton posted recently on the ability of one person to shut down the operations of the Barrytown Hall (close to Greymouth) after complaining about excessive noise:

I simply don't understand the mentality that leads people to move next door to music venues then push Council to shut them down. Even more baffling is why we have developed institutional arrangements that give every jerk a veto right.

I heartily endorse the sentiment but suggest that the veto right exists solely with the council: they both choose and enforce the veto themselves. And, as far as I can tell, the "jerk" has no standing after passing information  to the council and certainly has no legal veto right (even though in practice it feels a lot like it). 

We take notice of the Barrytown Hall because of its near legendary status within the national music community but what is going on there is hardly a one-off event. These kinds of reverse-sensitivity issues crop up all over the country. When you look at the law that governs how matters of "nuisance" are resolved it is probable that in most cases the person causing the nuisance will have to mitigate the nuisance or cease the activity altogether regardless of how long that person has been operating in exactly the same way and in the same place. What I think would come as a complete shock to most people is that most of what we think of as "existing use rights" are a fiction which are only waiting for the right trigger to be extinguished for good.

The three relevant strands of law that govern resolving issues of nuisance are:

1. English common law

2. Public health law (Health Act 1956)
3. Town planning law (Resource Management Act 1991)

There are also many other statutes such as the Fencing Act or the Dog Control Act that define how some other specific neighbourly disputes are resolved.

The right to sue

As a country we inherited a lot of law from Great Britain. There it has been possible for centuries to sue a neighbour who made excessive noise. And, in 1879, the English courts also found that someone who "came to the nuisance" still had the right to seek relief from that nuisance. It is bizarre but it is the law that you can buy property right next to some obvious, offensive activity and then seek to have it closed down. 

Although tort law is not directly relevant in this case it is interesting to note that the case law is not inconsistent with where we have ended up in the other legal streams. So, even if we didn't have the Health Act or the RMA, a suit taken by a neighbour of the hall is likely to have succeeded anyway.

Public health nuisances

Many nuisances don't just affect one property; a factory emitting odour will affect multiple properties. Many classes of nuisance also have the potential to not just interrupt the "quiet enjoyment" of one's property but to cause health problems in the public at large. Relying on neighbours suing each other as the means of achieving decent public health outcomes, besides being excessively cumbersome, is never going to work. So central and local government entities have been given the obligation and the necessary powers to take action unilaterally against any public health nuisance without waiting for complaint.

The Health Act 1956 directs local authorities "to cause inspection of its district to be regularly made for the purpose of ascertaining if any nuisances [...] exist in the district" and "if satisfied that any nuisance exists in the district to cause all proper steps to be taken to secure the abatement of the nuisance". Noise nuisance is defined there as "where any noise or vibration occurs in or is emitted from any building, premises, or land to a degree that is likely to be injurious to health". What is interesting is that noise has to cause a health and safety problem in this legislation rather than just be annoying for it to count.

But the main point about this approach to nuisance is how the dynamic changes. Now the council is the complainant. The "jerk" who came to the nuisance merely supplied information. What's more they did not even have to have been affected by the nuisance - in theory it could have been a passing German backpacker who contacted the council. That's because the council should have already been inspecting the hall's operation for nuisance without waiting for anyone to ask. After receiving information it is the council that investigates whether a nuisance exists and, as it morphs seamlessly from complainant to prosecutor to judge, it is the council that also decides what the remedy will be. (Yes it could go to court but, in practice, most people will cease, mitigate or pay the fine as directed).

The Resource Management Act

If prevention is better than cure then the promise of town planning is that judicious placement of buildings and activities will minimise the potential for nuisance to arise in the first place. While it is a no-brainer to force noxious or offensive activities into specific locations away from everyone else our planners have doubled down piling all sorts of rules into district plans to prevent any number of nuisances arising. Not all of which are required for them to comply with the Resource Management Act.

Remember that the purpose of the RMA is "to promote the sustainable management of natural and physical resources". I struggle to see how rules on, say, the minimum size of balconies on apartment blocks contribute to that purpose. Even zoning is not required by the RMA and contributes nothing to achieving the Act's purposes. But there is nothing stopping councils from loading district plans with these rules so they have.

Anyhow in the case of Barrytown the RMA does have 
built-in requirements to control noise (the RMA repealed the earlier Noise Control Act):
  1. Every occupier of land in NZ is required to "adopt the best practicable option to ensure that the emission of noise from that land or water does not exceed a reasonable level" (s16)
  2. If a council receives a complaint about noise then it must investigate and if the officer decides that the noise is excessive then they "may direct the occupier of the place from which the sound is being emitted [...] to immediately reduce the noise to a reasonable level" (s327(1)). Under this section the council has powers to confiscate equipment.
  3. Even if they don't receive a complaint a council can simply decide that noise from a property is excessive and issue an abatement notice (but without powers of confiscation) (s322).
So what is a "reasonable level" and what is "excessive noise"? In the absence of a National Environmental Standard "excessive noise" is whatever the council deems it to be. I am sure some national guidelines are floating around but they will be of the bureaucrat-to-bureaucrat variety and have less weight in court than statute or regulation. 

But the real point is that while we are focusing on a single complainant it could just as easily have been all the residents, any self-appointed busy-body from anywhere or the Grey District Council itself that triggered the abatement process. And that is because councils enforcing the rules in their district plans or in the RMA itself go by set standards, they don't need to prove actual harm.

And the other point to note is that if the Barrytown Hall is producing excessive noise today then it always has done since the RMA was passed in 1991. 

Grey District staffer, Ben Healey blames an increase in the number of functions at the hall for the need to start imposing limits on the Hall's activity. That may be so in a "common sense" way but Healey's quoted remarks leave an impression that the Council have just followed some rules and had no choice but to start the abatement and resource consenting process. I would disagree. If Grey District are going to take into account the impacts of function frequency and time of day of Hall functions on the local residents then they should have initiated a plan change. It is absolutely possible to embed the legitimacy of the Hall's traditional activity in the District Plan. Going through that process would allow all local residents to have a say as well as the residents of both the Grey and West Coast Districts who value the hall as a music venue. Grey District could have taken a totally balanced view that may or may not have over-ruled the original complainant but which would have been transparent and inclusive. No doubt enforcement is cheaper, easier and faster than a plan change but what is the point of local democracy if expediency is more important than making the right choice? 

Similar booby traps are littered throughout the district plans of every council in the country. Over many years we seen a steady stream of farmers, factories and other businesses discovering that decades of established practice count for nothing when their local council decides arbitrarily to enforce some rule. If the government really wants to reform the RMA then a review of how we manage nuisance and especially how much we want nuisance to be controlled via the RMA would be a good start.

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