E A Stacey Owens Transport Ltd v The Auckland Council

 
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[2011] NZEnvC 109

ENV-2010-AKL-000127,128

Court:

Principal Environment Judge C J Thompson

Environment Commissioner W R Howie

Environment Commissioner ACE Leijnen

CA849/2010

IN THE MATTER of appeals under s120 of the Resource Management Act 1991

Between
E A Stacey Owens Transport Limited
Appellants
and
The Auckland Council
Respondent
Counsel:

K R M Littlejohn for Owens Transport Ltd — applicant

R B Enright and H J O'Connell for E A Stacey and the s274 party

M McCullough for the Auckland Council

Appeal under s120 Resource Management Act 1991 (right to appeal) — appellant had existing use rights for movement and storage of freight on rear part of a property — use confined in hours of operation to daytime on weekdays and mornings at the weekend — discretionary resource consent granted in respect of whole property — appeal concerning freighting activities being a 24 hour a day operation — whether extended operations would comply with the District Plan noise limits.

At issue was whether the extended operations would comply with the District Plan (“DP”) noise limits.

Held: The term “effect” in s104(1)(a) RMA had a wide definition. The extended hours that Owens could operate would allow more efficient use of the site but would mean 228 extra truck movements a week with four per hour throughout the night. The movements would be limited to four an hour to comply with the DP night time noise level. The effects on the surrounding environment of the traffic noise had to be considered, though not controlled by the DP — EDNZ Ltd v Hastings, PH van den Brink (Karaka) Ltd v Franklin. The truck noise would inevitably come close to the maximum noise limit allowed by the DP. This would inevitably result in sleep disturbance, which was contrary to the DP objective of ensuring that any adverse environmental or amenity impact of business activity on the adjacent residential zone was prevented or reduced to an acceptable level. The actual, potential and cumulative adverse effects on the neighbouring residential environment during the night hours would be serious. The proposed control measures would not mitigate the effects to a reasonable or acceptable level and the generated noise effects associated with the activity were not reasonable or acceptable in terms of the DP objective's or strategy.

The positive effects from the proposal were more efficient use of Owens property and more fuel-efficient operations of trucks in off peak traffic conditions — s7(b) and s7(ba) RMA (other matters to have regard to). The amenity value and maintenance and enhancement of the quality of the environment would however inevitably be reduced — s7(c) and s7(f) RMA. The proposal as it stood meant that Owens would bear virtually none of the burden in the inherent compromise present in adjacent residential and industrial zones, and would be able to operate as if it were in a wholly industrial zone. Having regard to s5 RMA (purpose) the balance fell clearly on the side of declining the resource consent, insofar as the hours of operation were concerned.

Appeal allowed to the extent the hours of operation were not approved.

DECISION ON APPEAL

The appeal lodged by Ms E A Stacey is allowed to the extent noted at para [59 to [62]] Costs are reserved

Introduction
1

Owens Transport Ltd has existing use rights for the rear part (known as lot 2) of its property at 9 Felix Street, Onehunga, Broadly, the existing use is for the movement of freight to and from the site via rail and road; the use of existing buildings for freight activity and the warehousing of goods; the storage of containers on site, associated office activities, repair and maintenance of equipment; involving approximately 20 staff and 15 truck drivers. Importantly, that use is confined in its hours of operation and, in broad terms, it does not extend to night hours or to afternoons and evenings in the weekends. We were also advised by Mr James Hook, the consultant planner for Owens Transport, that the existing use accommodates some 160 container truck movements per day.

2

In a decision dated 12 March 2010 the Auckland City Council granted the company a discretionary resource consent in respect of the whole property (Lots 1 and 2, DP79610). Essentially, the activities to be carried on under the resource consent are of the same nature as before. The decision notes this, under the heading The Proposal:

The application is to extend the operating hours of an existing transport depot. Current hours have been confirmed by existing use rights covering lot 2 only (being Gain to 7pm Monday to Thursday, Gam to 12am Friday and 8am — 2pm Saturdays, Sundays and public holidays. The proposal would allow night time activities including (and limited to) 4 vehicle movements per hour. We note that the truck movements do not distinguish between light and heavy truck movements. The intensity of the activity is dictated by the noise levels especially at night. The applicant sought to manage intensity of activities through the number of onsite movements of a variety of vehicles. This could further be managed through the erection of an acoustic wall along an internal boundary between the two lots that form the subject site.

As things have turned out, the acoustic wall along the internal boundary is not in issue — Owens Transport appealed against the Council's decision to not allow that to be formed of stacked shipping containers, but that has now been resolved in their favour by agreement. No decision on that appeal is required from the Court.

3

What is now in issue in the appeal lodged by Ms Stacey, supported by The Te Papapa Residents for Stopping Heavy Industry Effects Society Inc which has joined the appeal as a s274 party, is the movement of trucks in and out of the site, and along Felix Street, including the hours now sought. The relief originally sought in that appeal — to decline the resource consent altogether — is no longer pursued.

General site and area description
4

The site is some 2.6ha in area, on the eastern side of Felix Street. Its eastern end, furthest from the street, abuts the Onehunga branch railway line. This line was disused for some years, but has been reopened for commuter train use and is, so we were informed, now also available for freight use again. It is Owens Transport's intention to take advantage of this rail connection as part of the overall proposal. The site generally slopes quite gently away from the Felix Street frontage, and can be thought of as three activity areas. The first is within Lot 1 which runs along the street frontage. It is grassed, and contains some trees, two of which are scheduled in the District Plan. This area softens the site's appearance from the street and provides a landscape buffer to an open area immediately behind, on the same lot. This area makes up the second and central part of the site and is split-levelled thi'ough the centre. It is a hard-stand area, sealed and metalled in parts, presently used for container and equipment storage and the parking of vehicles. Behind that again is the third activity area entirely contained within Lot 2 and separated by a planted embankment from the second activity area. This third area contains a substantial warehouse and ancillary buildings, together with parking, manoeuvring and loading areas. The railway line runs past the rear of this portion, with an old spur line running off it and into the site. Of note at this stage is that Owens Transport's existing use rights relate only to Lot 2, which is described here as the third activity area.

5

Felix Street is about 400m long and runs between Mays Road to the south, and Mt Smart Road to the north. Its eastern side is all commercial and industrial properties of various sizes and kinds. Immediately adjoining the site on its northern boundary is a very large Winstones wallboard manufacturing facility. Other, smaller, industrial and commercial properties occupy the northern end of that side of the street.

6

It is the western side of Felix Street which presents the challenge however. That is entirely residential. The properties range from medium density single-unit dwellings of mixed age towards its southern end, to multi-unit Housing New Zealand properties towards the north. Felix Street itself has a relatively narrow carriageway, with a footpath upon its western side, so the buffer or separation between the two disparate uses is minimal.

The proposal
7

What is proposed for the site now, and what is the remaining focus of the opposition from the neighbours, is as mentioned in para [2]: —essentially that the freighting activities on the site should continue 24 hours per day, seven days per week. In detail, the proposal is that between 7am and 10pm, Monday to Saturday and between 9am and 6pm on Sundays and public' holidays there may be up to 48 truck movements (ie an entry to or exit from the site) per hour.

8

Outside those hours: — ie on Monday to Friday between 10pm and 7am the following day; between 10pm on Saturday and 9am on Sunday; and between 6pm on Sunday and 7am on Monday, it is proposed that there may be up to 4 truck movements per hour. As will become apparent later, those after hours restrictions are designed to mesh with the District Plan's noise limits, with the 4 truck movements per hour in particular designed to meet the dBA L to measurements.

The parties' positions
9

Owens Transport's position is that it wishes to be able to operate through 24/7 primarily to coordinate with the 24 hour operations of the Port of Auckland. It points...

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