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Luke Pickering v. Christchurch City Council  

Author:  | Law, New Zealand, Noise

[1] In an Interim Decision dated 1 December 2016 the court granted consent to Windflow Technology Limited for a wind turbine at Gebbies Pass, Banks Peninsula, subject to conditions which would be confirmed in a final decision.

[2] This decision finalises the conditions of consent and, subject to any issues as to costs, resolves this appeal.

[3] By way of background this is an appeal against a decision to re-consent an existing wind turbine at Gebbies Pass, Banks Peninsula. The turbine was made operational in 2004 and, as we recorded in the Interim Decision, the residents in the neighbouring McQueen’s Valley have experienced noise from the turbine which has intruded upon their general enjoyment of their properties and for some, disturbed and disrupted their sleep.

[4] During the tenure of the original consent, Windflow did not undertake compliance monitoring within McQueen’s Valley to confirm whether the turbine was operating within the conditions imposed on its consent. Instead it relied on predicted noise levels in the valley based on measurements undertaken at the turbine site. We were greatly troubled by this and by the reliance on the turbine’s attainment of the noise limits in the New Zealand Standard 6808:201 O as this proved inimical to an enquiry into the experience of noise within McQueen’s Valley which, in contrast to the turbine site, has a very low sound environment.

[5] Disengaged with the persons living within the receiving environment, Windflow has been met with strong opposition to this application. To its credit, at the conclusion of the hearing Windflow proposed restrictions on the hours of operation of the turbine in response to the parties’ concerns, although it maintained these measures were not mandated by the evidence.

[6] The court reached a different view on the evidence. Noise from the turbine, including amplitude modulation, was a particular feature of this case because of its adverse effect on the amenity of the residents in the low background sound environment of McQueen’s Valley. Overall, we concluded the restrictions on the hours of operation and ceasing operation of the turbine if verification measurements identified penalisable levels of amplitude modulation or tonality were an appropriate response given Windflow’s duty under s 16 of the Resources Management Act 1991 to avoid unreasonable noise. …

APPROVED CONDITIONS

3. Hours of Operation:

i. The turbine shall not be operated on any day of the week between the hours of 1900 and 2200 except when the wind speed measured at the hub height of the turbine exceeds 10 metres per second [22 mph] …

6. Verification measurements

In terms of the verification measurements required by this condition: …

v. If the verification measurements indicate the sound power level at the reference position at hub height wind speed of 8 m/s is 65 dB or greater, or contains tonality or amplitude modulation which would be penalisable under NZS 6808:2010, the requirements of Condition 7 shall apply …

7. Restricted operations

i. Should the criterion of Condition 6(v) apply, operation of the wind turbine between 1700 and 0500 hours shall immediately cease …

8. Compliance monitoring

In conjunction with the verification measurements required under condition 6:

i. The consent holder shall undertake compliance monitoring and confirm that the wind turbine is operating within the noise limits [LA90(10min)] set out in the following table when assessed at the measuring points defined in condition 8(ii) below.

Background Sound Level     424 Gebbies Pass Road     McQueen’s Valley
>35 dB Background + 5 dB Background + 5 dB
30-35 dB 40 dB Background + 5 dB
<30 dB 40 dB 35 dB

Download original document: “Pickering v. CCC: Final Decision of the Environmental Court

(((( o ))))

A: Under section 285 of the Resource Management Act 1991, the Environment Court orders:

(i) the Christchurch City Council is to pay the sum of $3,605.00 to Luke Pickering; and

(ii) Windflow Technology Limited is to pay the sum of $10,815.00 to Luke Pickering.

B: Under section 286 of the Resource Management Act 1991, the District Court at Christchurch is named as the court this order may be filed in for enforcement purposes (if necessary).

Grounds for the application

[7] Mr Pickering submits it was necessary for him to pursue an appeal because the Council’s decision to grant consent did not offer reasonable protection to the surrounding neighbourhood.

[8] He has found the entire process stressful, and needless to say very costly. From Mr Pickering’s point of view, he approached mediation in a conciliatory manner and his desire was to reach early, meaningful resolution. During that time, despite requests not to, Windflow continued to operate the turbine without consent.

[9] The need to carry on with the appeal has resulted in considerable financial costs for Mr Pickering and he seeks to obtain fair recognition of these costs.

Discussion and findings …

Windflow

[25] Pursuant to s 16 of the Act, every occupier of land and every person carrying out an activity on it is to adopt the best practicable option to ensure that the emission of noise from that land does not exceed a reasonable level. The experts advising the City Council and Windflow have assumed the adverse effect of noise is acceptable provided that the wind turbine complies with the guideline noise limits in the New Zealand Standard 6808. We disagreed. Whether the effect of noise below the guideline limits is adverse is sensitive to the receiving environment in which that the noise is experienced.

[26] Background sound levels in this deeply incised Valley are very low relative to the sound levels on the windy ridgeline where the turbine is located. Turbine noise is the dominant noise in the Valley. The turbine noise is clearly audible above background sound, even though the level of turbine noise does not exceed the guideline limits in the New Zealand Standard. The particular character of this noise and its unpredictability has had an adverse effect on general enjoyment of the properties and for some disturbed their sleep.

[27] Windflow’s and the City Council’s assumption that the effect of noise below the guideline limits is acceptable was inimical to an enquiry into the actual experience of noise within McQueen’s Valley. This assumption was challenged by Mr Lewthwaite, the expert called on behalf of Mr Pickering.

[28] Because Windflow (and the Council) relied on expert advice, we do not go as far as to say Windflow neglected its duty. That said, the offer to amend the proposed conditions by providing residents respite from the noise of the adverse effects came very late, on the last day of the hearing. This is a significant improvement on an offer evidently made to Mr Pickering prior to the commencement of the hearing recorded in a letter from Windflow’s counsel to lawyers acting for a second appellant who later withdrew.

[29] Knowing of the residents’ concerns, I find that Windflow failed to adequately explore the possibility of settlement where compromise could have been reasonably expected. Given the above, I am satisfied that there are grounds to exercise my discretion and order costs against Windflow.

The Council …

[32] [T]he decision of Commissioner appointed by the Council to hear and determine the resource consent application records the Commissioner’s unease with the noise and its characteristics. He thought it possible that localised topographical features may make turbine noise more intrusive than what modelling might otherwise indicate. He was also critical of the failure of the Council to independently review Windflow’s assessment of noise and its effects. The Commissioner’s intuition as to the cause of the adverse effect was sound.

[33] At this hearing the Council engaged an independent expert on the topic of noise. The public’s interest is at the forefront of the Council’s role but it did not make enquiry into the actual experience of turbine noise within McQueen’s Valley. The Council did not appreciate that the New Zealand Standard is a guideline and instead relied on its expert’s advice that the effect of noise below the guideline levels in the Standard is always acceptable. For these reasons I am satisfied that there are grounds to exercise my discretion and that it is fair in the circumstances that the Council recompense Mr Pickering for a share of the costs that he has incurred. …

Quantum

[35] Given the modest sum claimed I am satisfied that a contribution of 75% costs ($14,420.19) is appropriate here.

[36] I will order Windflow to pay 75% of those costs and the Council to pay 25%.

Download original document: “Pickering v. CCC: Decision of the Environment Court on Application for Costs

This article is the work of the author(s) indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

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