Council takes action to reduce noise nuisance from aircraft testing facility

Local Government
Legislation:
Ombudsmen Act 1975
Related legislation:
Resource Management Act 1991
Legislation display text:
Ombudsmen Act 1975; Resource Management Act 1991
Agency:
Local Authority
Ombudsman:
Sir John Robertson
Case number(s):
C2152
Issue date:
Format:
HTML,
PDF,
Word
Language:
English

Noise nuisance-aircraft engine testing at night—responsibilities of local authority

The complaint concerned allegations that a Council was failing to enforce its own regulations and take steps to deal with the nuisance caused by the testing of aircraft engines at night at the local airport. It was obvious from the letters received by the Ombudsman that there was considerable annoyance and that it had persisted for some time with little or no apparent action from the Council in response to complaints. Investigations showed that the Council had found itself in a difficult position. Its powers to impose noise measures in these circumstances were far from clear, and the offending company was a major employer in the area. Officers had therefore sought to achieve a reduction in the noise nuisance by co-operative effort with the company, but progress was very slow.

The complainants contended that the Council had failed to enforce its own regulations regarding noise. The Ombudsman found, however, that the limitations imposed by the Council’s District Scheme were not adequate to control noise of the type that was the subject matter of the complaint. The limit was 45dBA Leq at the nearest residential zone boundary at night, night being defined as 10 pm to 7 am weekdays and 6 pm Saturday until 7 am the following Monday. The difficulty arose out of the very short duration of the high noise levels. The dBA Leq measurement is a measurement of noise averaged over a period of time. So long as the average level in any hour remained below that limit, there could be short bursts of noise that were much louder but there would be no breach of the District Scheme.

Similarly, the Council’s powers to act under the Health Act 1956 and the Noise Control Act 1982 were limited and of doubtful application in the circumstances.

During the course of the investigation, however, the Resource Management Act 1991 came into force, replacing earlier legislation and including new and stronger noise control powers. At this stage, the Ombudsman considered in particular the right of the complainant (under section 316 of the Act) to apply for an enforcement order against the company in respect of the noise. The Ombudsman had in mind the provisions of section 17(1)(a) of the Ombudsmen Act which provides a discretion to refuse to investigate a complaint further if it appears that under the law or existing administrative practice there is an adequate remedy to which it would be reasonable for the complainant to resort.

After consulting the complainants and giving the matter considerable thought, however, the Ombudsman concluded that, given the new responsibilities and powers of the Council in the noise control area, there was much it could do to seek reduction of unreasonable noise. Where a complainant makes a complaint that a Council is not carrying out its responsibilities under the Act to seek abatement of unreasonable noise or an enforcement order, the Ombudsman formed the view that he ought to accept a complaint and investigate in order to determine whether the Council is doing its duty or not. The Council, meantime, had made some progress with the company now that it was able to call on the powers it was given by the Resource Management Act. In fact it was threatening to serve an abatement notice under section 322 within a few weeks of the Act’s coming into force.

The Ombudsman was satisfied that the Council had already achieved a diminution of the noise and was continuing its efforts to reach a solution in co-operation with the company. Most of the complainants by this stage were of the opinion that while they were not necessarily satisfied with the current situation, they were pleased with the considerable improvements that had been achieved and with the more responsive attitude of the Council, This being the case, the Ombudsman’s investigation was discontinued.

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.

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