3 July 2007

Bells, traditions, and the Resource Management Act

> ThePress: "Complaint silences bell" > St Christophers > CCC: City Plan, Part 11, Rule 1.3.3 I'm a bit puzzled by this one. I'm not convinced the Church was acting unlawfully when it ran its bell in the morning. While the explanation for the City's action is somewhat scant, there seems to be repeated reference to the bell breaching the 75 dB limit for daytime noise. This reference seems to a reference to the daytime noise standard in Part 11, Rule 1.3.3 of the City Plan. It sets a development standard for the Living Zone 1 of 75 dB Lmax and a critical standard of 85 dB Lmax. In short, this means that noise up to 75 dB is a permitted activty and can be does as of right, without a resource consent. Noise over that level requires a resource consent. The reference to 85dB sets another threshold changing the type of resource consent one needs to apply for, effectively making it more difficult to get a resource consent if the noise exceeds 85 dB. Now, on its face, the Church is breaching the limit and needs to apply for resource consent (which they may well get). However - and this is my main point - if the bell has been rung for 50 years as they say, then the church does not need to comply with this rule. Section 10 of the Resource Management Act 1991 provides:
s10 Certain existing uses in relation to land protected (1) Land may be used in a manner that contravenes a rule in a district plan or proposed district plan if— (a) Either— (i) The use was lawfully established before the rule became operative or the proposed plan was notified; and (ii) The effects of the use are the same or similar in character, intensity, and scale to those which existed before the rule became operative or the proposed plan was notified: ...
This recognises that the activities which have been established before the rules were adopted (which looks to be the case here) are lawful and need not comply with the more recent standards. The activity is treated as having "existing use rights" and can be undertaken lawfully as of right, without needing to obtain a resource. That's not to say the noise issues cannot be addressed elsewhere. Other standards relating to noise are provided in the RMA: - There is a general duty to avoid unreasonable noise (s 16: "Every occupier of land ... shall adopt the best practicable option to ensure that the emission of noise from that land or water does not exceed a reasonable level.") - There is a general duty to avoid remedy and mitigate adverse effects, regardless of whether the activity complies with the rules or a resource consent, but this duty is only enforceable if the effects are "noxious, dangerous, offensive, or objectionable" (s17: "Every person has a duty to avoid, remedy, or mitigate any adverse effect on the environment arising from an activity carried on by or on behalf of that person, whether or not the activity is in accordance with a rule in a plan, a resource consent, a designation, section 10, section 10A, or section 20A"). - There is a special regime for "excessive noise" ("any noise that is under human control and of such a nature as to unreasonably interfere with the peace, comfort, and convenience of any person"), where people can be issued an excessive noise direction (this is the "noise control" regime which you may have encountered at noisy parties!). Notably, these other provisions are more nuanced, requiring a contextual assessment of the nature and quality of the noise in the light of the particular neighbourhood. I suspect the bell noise is unlikely to be illegal under these provisions. But, in any event, the City does not appear to be addressing the bell under these provisions. UPDATE (6/7/2007): As a result of my blog post, the City has conceded the bells have existing use rights and will be allowed to ring on Sunday mornings: > ThePress: "Christchurch vicar wins ding-dong over church bell"

1 comment:

Anonymous said...

But was the ringing orignally "lawfully" established? DRC

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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