Brooks v Western Bay of Plenty District Council

• Jurisdiction: New Zealand
• Judge: J A Smith,H A McConachy,A Leijnen
• Judgment Date: 13 July 2011
• Neutral Citation: [2011] NZEnvC 216
• Court: Environment Court
• Docket Number: ENV-2011-AKL-000043
• Date: 13 July 2011

In The Matter of an appeal under Section 120 of the Resource Management Act 1991 (the Act)

BETWEEN

D Brooks, G & J Cleveland and R & J Waterhouse (Env-2011-Akl-000043)

Appellants

Loadednz Limited

Applicant

and

Western Bay of Plenty District Council

Respondent

DecisionNo. [2011] NZEnvC 216

Court:

Environment Judge J A Smith

Environment Commissioner H A McConachy

Environment Commissioner A Leijnen

ENV-2011-AKL-000043

BEFORE THE ENVIRONMENT COURT

Appeal from a decision of the respondent which granted the applicant resource consent to operate a claybird shooting range — rural location with usual rural industry noise — whether mitigation proposed by applicant was sufficient to address noise impact on rural amenity — whether additional restrictions on hours of operation should be imposed — whether effects on possible future owners needed to be considered.

Appearances:

KM Barry Piceno for Brooks and ors (Residents)

ME Casey QC & AJ Davidson for Loaded NZ Ltd (“Loaded”)

MH Hill for Western Bay of Plenty District Council (“Council”)

DECISION OF THE ENVIRONMENT COURT

THE APPEAL

1 Loaded NZ Limited (Loaded) seeks to establish a claybird shooting range in the rural environs of Taumata. Loaded received consent from the Western Bays District Council (the Council). This decision has been appealed by neighbouring property owners Cleveland, Brooks, and Waterhouse (the residents). These parties were joined by two further neighbours Sutton and Wilson as Section 274 parties. Loaded also appealed the financial contribution condition, but this issue was resolved at mediation.

2 The development is a discretionary activity in the Western Bays Rural G Zone. The focus of this appeal was on noise and amenity effects.

THE PROPOSAL

3 The proposal is for a “sporting clay bird” shooting facility within a leased area of a working farm owned by Eynon Ltd. That lease has yet to be signed. The facility comprises three shooting fields, a viewing platform, clubhouse, toilet facilities, carpark and storage area. It is also intended that the facility will provide for team building and gun handling training. Other activities may include archery, petanque, mini-put golf, paint ball and darts. Food and non-alcoholic beverages will be available on site and it is likely the premises will hold a special liquor license for special events. The facility has been partially built and a map showing key facts is attached as A.

4 There is an existing subdivision granted on the site for 10 lots (7 additional). The layout of that subdivision falls across the subject leased site and either the proposed activity would need to be relocated (which would require a fresh application for resource consent), or the subdivision would need to be modified to accommodate the proposal. This being the case although the issue of compliance with any noise condition at any home built under this subdivision consent was raised in the course of the hearing, we have decided that the subdivision warrants no further assessment relative to the proposal. We note the draft lease agreement runs until 2014 which aligns with the subdivision consent termination.

5 It is proposed that the Loaded facility will operate on any 6 days of a week as follows:

• [a]Actual hours of operation are 8am to 10pm with the hours of shooting being 9am – 8pm (or half an hour after sunset whichever is the earliest);

• [b]A maximum of two paid staff will be employed at any one time;

• [c]Parking is limited to 5 vehicles plus 2 mini vans which are proposed to be used for larger or corporate patronage;

• [d]Access and presence on site is by invitation only;

• [e]A maximum of 15 shooters will participate at any one time;

• [f]Each participant will shoot 25 rounds on the three shooting fields.

6 Amongst other things, the conditions limit the hours of operation, number of shots fired in a day and week and the type of shot to be fired. A maximum of a further 35 additional attendees not engaged in shooting may be on the site participating in alternative activities. The proposed conditions are attached as B.

The site and locality

7 The subject site is located at 1026 Taumata Road. The property is just to the south of the intersection of Taumata Road and Pyes Pa Road which is a section of State Highway 36 (SH36). Taumata Road is classified as a local road and SH36 as a national road/regional arterial road in the District Plan and in the Proposed Plan a strategic route/primary arterial route.

8 The facility is within a property of three Certificates of Title having a combined area of approximately 115 hectares. The proposed activity will take place within Pt Taumata 2B. However access to the site is via Section 18 Bile XV Otanewainulcu SD. Both Certificates of Title are therefore included in the application. The access road is an extension of a formed road to an existing quarry which is currently utilised at a level of approximately 6 trucks per month. The 750m road is to remain unsealed.

9 The facility sits within a secluded pastoral bowl with minimal views out and as £ consequence it is not visible from outside the farm property. The buildings and parking area sit on a small valley floor with the surrounding hill slopes rising some 20m above the shooting fields. The area is in pasture with some native bush remnants that are proposed to be retained. Eynons Limited runs cattle sheep and horses.

10 The surrounding land exhibits the same undulating topography. Native bush is a feature on neighbouring properties which are used for pastoral farming, forestry and rural lifestyle purposes. There are a number of houses located within the potential audible range of the facility. These form an almost concentric half circle from the north to the south east generally on elevated ridges. Across Taumata Road to the north at 785m distance lies the Waterhouses' home. Across SH36 is the Cleveland property at 870m distance who have been identified by the parties as being the most elevated neighbouring site and the most exposed to the noise effects from the proposal. The Cleveland property has only a non-residential hut on it at present. The Brooks own the property next to Clevelands and have building consent for a house at 952m distance. Their property boundary is 667 metres from the subject site. The Suttons are the closest of the appellants at 497m distance. They have two houses across the south-east boundary of the Eynon farm accessed from Pyes Pa Road. The Williams property has a boundary with the Eynon farm to the northwest. A state forest adjoins the property on the east to south east border. There are 5 other houses which have given written consent and on whom any effects must be disregarded under Section 104(3) of the Act.

11 Within the wider environs at around 2 kilometers distance is a 1642 hectare site which is currently being developed as an all terrain outdoor recreation park (ATP)(Consented 2004). It has been located to serve both the Tauranga and Rotorua community specifically to include those sports that are noisy. The ATP property has been used previously for exotic forestry but has some areas of indigenous vegetation. The ATP is of mixed contour and is surrounded by other exotic forestry operations and Department of Conservation forested estate.

The Parties Positions

12 This hearing was to proceed on a limited basis. Parties at the time of hearing had defined their positions as:

• [a] Loaded. Opposed any further limitation on the days and hours of opening and on the duration of events. It opposed the Council's suggestion of a LAmax50dB control. It supported the Council decision but agreed to the mitigation proposals recommended in paragraph [4.5] of the joint witness statement of the parties' noise experts;

• [b] Brooks & Ors (the appellants). If the consent was to be upheld however, the appellants sought the following changes to the conditions:

  • [i]Restricting the days on which shooting activities might occur and in particular excluding most Sundays and public holidays;

  • [ii]Reducing the hours of operation, particularly in the evenings; and/or

  • [iii]Limiting the duration of shooting events;

  • [iv]A LAmax50dB limit to apply to the consent, not a CNR measurement.

• [c] Western Bay of Plenty Council (the respondent) supported the grant of consent, but contrary to the commissioner's decision,'proposed a limit of LAmax50dB as well as the CNR measurement, as an enforcement control in respect of future permitted dwellings yet to be established. This position was modified at the hearing to a proposal which would impose an initial “trigger” standard based on a LAmax50dB, but with an option to show compliance with the standard of CNR80 if the trigger standard is exceeded.

KEY ISSUES

9 The following were the key issues proposed to the Court:

• [a]Whether the mitigation proposed by the acoustic experts and agreed to by the applicant are sufficient to address the effects of noise on the rural amenities of the appellants;

• [b]Whether any additional restrictions on the days, hours and duration of operation should be imposed to achieve better rural amenity;

• [c]Whether a numerical (as opposed to operational) noise control ought to be imposed and, if so, what measure;

10 In addition the following legal matters were considered to be at issue:

• [a]Whether the Council may call evidence in support of different and more stringent conditions than imposed in its own decision, without leave of the Court;

• [b]Whether effects on possible future owners of dwellings yet to be established can be considered.

RELEVANT PLANNING DOCUMENTS Western Bays District Plan

11 Both the Western Bay of Plenty Operative and Proposed District Plans are considered to be relevant for the purposes of considering the resource consent.

12 The provisions of the Proposed District Plan most relevant to this application are, Section 4C Amenity, and Section 16 Rural. These...