By: Lucy de Latour
The litigation regarding noise associated with New Zealand Windfarms Limited's Te Rere Hau wind farm continues, with leave granted by the High Court for Palmerston North City Council to appeal to the Court of Appeal (Palmerston North City Council v New Zealand Windfarms Limited [2013] NZHC 2654, 11 October 2013 Williams J.).

The decision to be appealed is the recent High Court decision, New Zealand Windfarms Limited v Palmerston North City Council [2013] NZHC 1504, 20 June 2013, Williams J.

The High Court decision was an appeal from an Environment Court decision (Palmerston North City Council v New Zealand Windfarms Limited (2012) 17 ELRNZ 10) on a declaration sought by Palmerston North City Council regarding conditions on a resource consent granted to New Zealand Windfarms Limited to construct a 97 turbine wind farm east of Palmerston North.

The wind farm was approximately one third constructed and in operation when, in May 2009, the Council started to receive complaints from nearby residents about noise from the wind farm. By October 2011, when the application for declarations was lodged in the Environment Court, over 500 complaints had been received by the Council.  By the time of the High Court appeal hearing, that number was over 800.

The case before the Environment Court revolved around acknowledged inaccuracies in the Assessment of Environmental Effects ("AEE").  In particular, the noise assessment undertaken in preparation for the application underestimated the presence of special audible characteristics (a type of tonality of noise) and also the sound power level that would be generated by the wind turbines.  This resulted in the AEE predictions underestimating the number of affected residences and also under predicting the actual noise levels measured at the affected residences.

The conditions of consent included a general condition, requiring the wind farm to be constructed and operated "generally in accordance with all the information, site plans and drawings accompanying the application" (condition 1).  The resource consent also contained specific detailed noise conditions (conditions 4 and 5). Condition 4 set the noise limit, measured at the notional boundary of any receiving boundary, that noise generated be less than 40dBA L95 or 5 dBA above background noise, whichever is higher. Condition 5 was a noise monitoring condition.  Monitoring was being undertaken to ascertain whether the limits in condition 4 were being met and the decision revolved around the enforceability of condition 1.

In the Environment Court, the Court found that condition 1 did have the measure of certainty required to be a valid condition. The Court issued a declaration that:
"Condition 1 of the resource consent is being and has been breached by the respondent in that Te Rere Hau (TRH) wind farm has been operated in such a way that the noise effects at local residential locations are considerably greater than those predicted in the application."

The declaration was made on the basis that there was no conflict between the general condition 1 and the specific conditions 4 and 5.  This is because the noise assessment relates to noise generated at source, whereas conditions 4 and 5 address the noise received at neighbouring properties.  The Court also found that the AEE was "the bedrock upon which resource consent applications were founded", the need for accuracy and integrity are self-evident.  Thirdly the Court (by majority) found that the wind farm would be operated in such a way to compensate for the increased sound power level of the turbines to achieve the level of sound received by local residential properties as predicted in the application.  The Environment Court made a second declaration regarding the ability of the Council to conduct a review of the noise conditions under section 128(1)(c) of the RMA.  The Court found that the three requirements for a section 128 review (namely that the information made available to the consent authority must contain inaccuracies; that those inaccuracies materially influenced the decision; and that the effects of the exercise of the consent were such that it is necessary to apply more appropriate monitoring conditions) had been made out.

New Zealand Windfarms Limited appealed the Environment Court decision to the High Court. In the High Court, the key issue was expressed to be "whether the appellant [New Zealand Windfarms Limited] is bound by both its own predictions about the sound levels generated by its turbines and the specific noise standards contained in consent conditions or whether it is bound only by the specific standards."

Williams J disagreed with the Environment Court and set aside the declaration made in the lower court about condition 1.  The High Court found that there was no conflict between the general condition (condition 1) and the specific noise conditions (conditions 4 and 5).  In reaching this conclusion the Court asked two questions, firstly, what was the intended acoustic scope of the application, and second what was the intended limit(s) on noise in the consent decision.  The High Court held that the predictions in the noise assessment regarding special audible characteristics and sound power level did not go to the scope of the application.  Rather, these predictions were not a parameter in their own right, but instead fed into the equation used to calculate noise levels at any given distance from source (i.e. at the neighbouring residential properties).

The outer limits for noise emissions generated from the wind farm had been in line with the limits under the relevant noise standard (NZS6808 cl 4.4.2.).  The noise assessment predictions (in relation to special audible characteristics and sound power levels) did not go to scope.  The predictions related to how the predicted noise levels would be achieved, not what the levels should be. Conditions 1 and 4 could be read together, and properly interpreted both say that the wind farm must be operated so as to produce noise effects at the notional boundaries of local residents at no greater than 40dBA L95 or 5 dBA above background noise, whichever is higher.

The Court acknowledged that New Zealand Windfarms Limited had made an error which was a "grave one" from the point of view of the acoustic amenity enjoyed by surrounding neighbours.  The Court also commented that review of conditions of consent under section 128(1)(c) was designed specifically to deal with such issues, where information made available to the consent authority by the applicant contained inaccuracies which materially influence the decision made on the application such that it is necessary to apply more appropriate conditions. The process under section 128 is a public one and while the Council expressed concern that a section 128 review could not allow the Council to revisit the applicability of the noise standards, Williams J did not share such a concern, noting the whole question of noise levels and compliance is "back on the table for fresh debate."  Indeed the Council even has power to cancel a consent under section 132(3) if the adverse effects from exercising the consent are "significant".

Three questions were posed by the Council in its leave application:
  1. Does Condition 1 of the resource consent apply to either or both the noise generating characteristics and performance of the turbines and the noise effects at receiver locations?
  2. Was it lawful for the High Court, rather than the Environment Court, to determine if the windfarm was constructed, operated or maintained in compliance with Condition 1?
  3. Was Williams J right as to the scope of the application for the windfarm if the answer to a) was no, and b) was yes.
The High Court in the decision on the leave application was satisfied that the questions were seriously arguable questions of law and were of wider importance, particularly in the context of the interests of the local community in the receiving environment. Overall, the Court was satisfied that the effect of the windfarm on the acoustic amenity of its surrounding community was of genuine importance to that community and as such leave to appeal to the Court of Appeal was granted.

Regardless of the Court of Appeal's decision, the on-going litigation provides a reminder of the need to ensure assumptions and assessments made in AEEs are sound and correct so as to avoid litigation of this kind.  We will report further on the Court of Appeal's decision once the appeal has been heard.
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