Council determination of noise nuisance not unreasonable
Noise Nuisance—permitting a rifle range to operate on property adjoining complainant’s-taking no action to alleviate noise nuisance created by rifle range
The complainants purchased a property in a rural area in early 1989 then discovered that their property adjoined a farm on which there was a private rifle range. Both the complainant and his wife had undergone major surgery and the noise from the rifle range caused them considerable distress.
The complainant had two complaints against the Council. The first was that the Council had acted unreasonably by permitting a rifle range to operate on the property next to theirs in the first place and secondly that the Council had acted unreasonably by taking no action to alleviate the noise nuisance emanating from the rifle range.
With respect to the first complaint, the Ombudsman’s investigation disclosed that the rifle range had been constructed approximately nine years earlier and created after the current District Scheme had come into existence. The District Scheme set out a number of predominant uses which people living in the area could carry on as of right. The District Scheme also set out a number of conditional uses for the area including ‘gun clubs’ which could be carried on providing a conditional use application was made and consented to by the Council. It was clear that the complainants’ neighbour had not obtained a conditional use from the Council before setting up his rifle range. The Council advised during the course of the investigation that the reason no conditional use application had been required was because the neighbour did not intend to undertake any commercial activities in respect of the rifle range or to have any regular organised gun club activities. The Council did not consider that the neighbour was intending to create a gun club as that term was used in the District Scheme and further, believed that the neighbour did not use his property any differently from a number of other properties within the rural zone. The Ombudsman concluded that there appeared to be no good reasons why the neighbour should have been required to make a conditional use application in respect of the rifle range.
With respect to the second complaint concerning the Council’s failure to alleviate the noise nuisance created by the rifle range, the Ombudsman investigated the actions the Council had taken at the time the complainant complained to the Council about the noise problem. On receipt of the complaint, an expert noise consultant was requested to prepare a report. The consultant reported that there was no New Zealand Standard which currently deals with impulse noise such as gun shots. However, there was a New Zealand Standard (not adopted by the Council) which assessed noise in the environment and suggested that a single event noise at night should not exceed 75 dBA fast response or the background noise level plus 30 dBA, whichever is the lower. The consultant carried out tests using a .243 rifle to establish the noise level on the boundary between complainants and their neighbours. The noise level was found to be approximately 64 dBA. That noise level was within the requirements of NZS6802:1977.
The consultant reported that he believed that by applying controls to the shooting, any nuisance could be reduced. He made a number of recommendations which were accepted by the neighbour.
Unfortunately the complainant was still dissatisfied with the noise level on the boundary of his property. The consultant advised the Council that approximately 25 percent of the community are almost immune to any level of noise and another 10 percent of the population will be disturbed by any noise not of their own making. He indicated that noise consultants do not design for either of those extreme groups and that to date, the Planning Tribunal had supported that design approach.
The Ombudsman’s opinion at the end of this investigation was that the Council had not acted unreasonably in respect of either of the complaints. In fact, the Council appeared to have gone to some considerable trouble to satisfy the complainant’s concerns about the noise nuisance.
This case illustrates one of the difficulties in dealing with noise nuisance complaints which is that what constitutes a nuisance for one person may not necessarily have any adverse effect on another.
This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.