The Palmerston North City Council has lost one of its options for forcing NZ Windfarms to quieten the noise from its Te Rere Hau turbines on the Tararua Range.
The Court of Appeal has dismissed a council appeal that could have cleared the way for it to find NZ Windfarms was not complying with its resource consent and make it apply for a new one.
The court’s decision was split, with Justice Tony Randerson dissenting.
The blow to the council is another step in what has been a long and litigious battle since the wind farm began in 2009 and the council began receiving noise complaints.
Within two years, the number of complaints had risen to 800.
The essence of the council’s case was that NZ Windfarms’ predictions about noise generation were significantly wrong, putting it in breach of a general, introductory condition of its 2004 resource consent. The condition required the wind farm to be constructed and operated generally in accordance with information provided in its application.
The Environment Court earlier found the council could interpret and use the rules that way, as the noise effects at houses close to the wind farm were considerably greater than predicted.
But NZ Windfarms appealed to the High Court, and the ruling was set aside.
Now, the council’s attempt to have the original ruling reinstated has failed.
The Court of Appeal decision pointed to specific noise conditions in the consent that the council could enforce, and its ability to review those conditions.
That had not been done earlier, because the council did not have enough noise monitoring data. However, the data are available now, and have been presented in an Environment Court hearing, awaiting a decision on whether the conditions have been breached.
The dissenting judge said the introductory condition on the resource consent could be enforced in its own right, and it would be valid to find that NZ Windfarms was breaching it.
NZ Windfarms chief executive Chris Sadler said the decision was clear in throwing out the city council’s appeal, but it did not get the parties to the finish line yet.
“They [the council] have a right to re-open our consent, but to date they have pursued other legal actions.”
Sadler said NZ Windfarms believed it now had adequate information from sound monitoring to show it was complying with noise controls. “So that’s the next step, for the Environment Court to decide whether we are compliant.”
City council customer services general manager Peter Eathorne said the council was considering the decision. However, New Zealand Windfarms and the council agreed the consent conditions were inadequate for the management and monitoring of noise effects.
“Therefore some sort of review is required,” he said.