Resource Management Act: RMA Link: Topics: Details

The concept of reverse sensitivity has become well-recognised in resource management law over recent years, although it is not specifically mentioned in the RMA. The term applies to situations where incompatible land uses are sited next to each other, resulting in conflict between property users. This is particularly common in rural areas, where lifestyle property owners can be affected by noise from machinery or bird scarers, odour from poultry or pig farming, dust or truck movements from quarrying, and spray drift. Visual impacts of land use activities can also affect neighbours.

In these situations, there is a tension between the legitimate rights of one property owner to carry on an activity, and another owner’s legitimate right to develop their land as they wish, or to enjoy their property free from unreasonable interference. A balance must be found between these conflicting interests.

In the first instance, resource users should confine the adverse effects of their activities within their own sites. Adjoining property owners and users should not be expected to bear the cost or inconvenience of these effects. However, where a person carrying on an established activity has taken all reasonable measures to minimise effects, and they still reach beyond their property boundaries, there may be justification to restrict the use of neighbouring properties to avoid conflicts arising.

Under the RMA, concepts of existing use and reverse sensitivity can favour existing users. A number of Environment Court cases have sought to prevent conflict arising, by limiting or prohibiting the establishment of new land uses where current activities are likely to result in complaints from new neighbours. Such decisions give the established user a right to cause adverse environmental effects beyond their property boundaries.

In other cases the consent process (or consent renewal process) has been used to protect neighbours from the undesirable environmental effects of land use activities by placing conditions on the resource consent.

Section 16 of the RMA places a general duty on land owners and users to avoid creating unreasonable noise. Section 17 states a duty to avoid, remedy or mitigate adverse environmental effects of their activities. The enforcement provisions of Part XII apply (abatement notices, enforcement orders, excessive noise directions)

Common law (the tort of nuisance) gives all property owners the right to enjoy their property free from ‘unreasonable interference’, and places on them the obligation not to create ‘unreasonable interference’. Section 23(1) of the RMA does not absolve a person from these common law obligations, even though they may comply with the conditions of their resource consent.

The issue, then, is to achieve a balance between the rights of landowners when situations of reverse sensitivity arise. As circumstances will vary according to each case, no universal formula or standard approach can be applied to achieve consistency and fairness in all cases. It will be left to the Environment Court to resolve individual cases, considering the unique details of each case.

District and regional plans provide guidance on amenity values, and the standards expected by communities. Plan reviews provide an opportunity to clarify these expectations, and to ensure they are reflected in councils’ approaches to managing amenity, and in plan rules. As experience with the next generation of plans grows, examples of best practice will emerge.

 

MFE (2001) Managing Rural Amenity Conflicts. ME 372
Ministry for the Environment, Wellington. 122p. ISBN 0-478-24006-6
This report identifies amenity issues that commonly concern rural communities. It examines a range of policy and planning approaches to managing conflicts. Includes discussion of relevant case law examples, p95-99.

Journal Articles

Davidson, A. (2003) Reverse Sensitivity – Are No-Complaints Instruments a Solution?
NZ Journal of Environmental Law, Vol 7, p203-241. Article looks at potential for win-win solutions to be negotiated in cases of reverse sensitivity.

Dormer, Alan (2001) Reverse Sensitivity.
Resource Management Bulletin May 2001, p29-32
This article contains comments on several Environment Court cases.

Duncan-Sittlington, E (2003) Rural Amenity Conflicts : Reverse Sensitivity, Existing Use, and the Common Law / RMA Interface in the Context of Odour Nuisance – A Case Study.
Resource Management Bulletin March 2003, p19-23

 

• Golden Bay Cement v Whangarei District Council A15/2005