Cable Bay Wine Limited v Auckland Council
[2025] NZHC 1576
•13 June 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2024-404-000742
[2025] NZHC 1576
UNDER the Resource Management Act 1991 (RMA) IN THE MATTER OF
a prosecution under s 338 of the RMA
BETWEEN
CABLE BAY WINE LIMITED
Appellant
AND
AUCKLAND COUNCIL
Respondent
Hearing: 19 May 2025 Appearances:
K de Silva for the Appellant S F Quinn for the Respondent
Judgment:
13 June 2025
JUDGMENT OF TAHANA J
[Appeal against sentence]
This judgment was delivered by me on 13 June 2025 4.00 pm
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
K de Silva, Barrister, Auckland DLA Piper, Auckland
CABLE BAY WINE LIMITED v AUCKLAND COUNCIL [2025] NZHC 1576 [13 June 2025]
Introduction
[1] Cable Bay Wine Ltd (Cable Bay) appeals its sentence (a $50,000 fine and costs) for exceeding the maximum noise limits specified in its resource consent in contravention of a district rule.1 The Auckland Council (the Council) opposes the appeal.
[2] Cable Bay is a winery on Waiheke Island with a restaurant and function centre. In the afternoon of 23 June 2018, a group of ten patrons were socialising outside. Noise measurements were taken from a nearby property that exceeded the maximum noise limits.
[3] Cable Bay was charged with contravening s 9(3) of the Resource Management Act 1991 (the RMA)2 by using the property in a manner that contravenes a district rule. Cable Bay was found guilty3 and subsequently sentenced.4
[4] Cable Bay argues that the sentencing Judge erred in: applying cases involving the discharge of odour and not taking into account cases involving noise emissions; placing too much weight on previous unverified complaints; and failing to reduce the sentence because of correspondence from the Council.
[5] The Council argues that the fine was not manifestly excessive, and the Judge did not err in relying on odour cases in the absence of comparable noise emission cases. The Council argues that previous noise complaints in relation to Cable Bay are relevant to the seriousness of its offending and there is no basis to reduce the sentence because of the Council’s correspondence.
[6] The key issue is therefore whether the Judge erred in relying on odour cases such that the end sentence is manifestly excessive.
1 Under s 9(3)(a) of the Resource Management Act no person may use land in a manner that contravenes a district rule unless the use is expressly allowed by a resource consent.
2 Resource Management Act 1991, ss 338(1) and 339(1)(b). Maximum penalty of a fine not exceeding $600,000.
3 Auckland Council v Cable Bay Wine Ltd [2024] NZDC 21713 [Conviction decision].
4 Auckland Council v Cable Bay Wine Ltd [2024] NZDC 28930 [Sentencing decision].
Background
[7] Since 2006, Cable Bay has held a resource consent allowing it to operate a restaurant and function centre at its vineyard, subject to conditions. Relevantly, condition 25 specified noise limits as follows:
At all times any activity on the site shall comply with the following noise levels:
The noise level arising from any activity measured 20m from any adjacent dwelling or visitor facility (on another lot) shall not exceed the following limits:
Noise (L10 levels)
7am to 10pm Monday to Saturday and Sunday 9am to 6pm
45 dBA
All other times including public holidays (‘night time’)
35 dBA
The maximum noise level (Lmax) at ‘night time’
65 dBA
[8] Cable Bay is situated on a property that includes a leased area at 85 Church Bay Road. The noise measurements were taken from 85 Church Bay Road.
[9] On 7 December 2016, the Council wrote to Cable Bay’s counsel indicating that there were conflicting legal opinions as to whether the reference to “site” in condition
25 included 85 Church Bay Road. The Council indicated that it would seek clarification by way of declaration proceedings in the Environment Court and would serve an application in due course. The letter concluded by stating:
Until the Environment Court has determined this matter, Council will continue to process consent applications on the basis that the land comprised in the Computer Freehold Register NA95D/318 is a site. The current practice of measuring noise for enforcement purposes at the boundary of this site will also continue.
[10] On 23 June 2018, a noise expert measured the noise levels from 85 Church Bay Road. Those measurements indicated that the noise limit was exceeded:
(a)by 5 decibels at 5.01 pm;
(b)by 4 decibels at 5.15 pm; and
(c)by 7 decibels at 5.30 pm.
[11] The noise expert observed that the measurements were dominated by noise generated from a group of 10 patrons conversing outside on Cable Bay’s premises.
Procedural history
[12]This appeal has a lengthy procedural history.
[13] The Council initially filed charges on 15 August 2018 against Cable Bay and two co-defendants for contravening the maximum permitted noise level under condition 25 on three separate occasions on 9 February, 3 March and 23 June 2018. A trial was held on 10 and 11 May 2021. At that trial, the Judge ruled that the measurements relating to the 3 March and 23 June 2018 incidents had been taken from the incorrect location and could not be relied on. The trial proceeded in relation to the 9 February 2018 charges. The defendants were found not guilty because the sound recording had been lost and there was reasonable doubt about the officer’s assessment of the noise levels.
[14] The Council appealed. This Court allowed the appeal against the Judge’s ruling as to the location of the noise measurements, finding that noise measurements could be taken from 85 Church Bay Road.5 The Court did not allow the substantive appeal regarding the incident on 9 February 2018 and remitted the matter to the District Court to hear the charges against Cable Bay for the noise measurements on 3 March 2018 and 23 June 2018 together with a charge against a co-defendant for the 3 March measurements.
[15] The re-trial was heard on 13–15 September 2023. The Council was granted leave to withdraw the charges regarding the 3 March 2018 incident so that the only remaining charge was against Cable Bay for the 23 June 2018 measurements. The Judge found Cable Bay guilty of exceeding the noise limits on 23 June 2018.6
5 Auckland Council v Cable Bay Wine Ltd [2021] NZHC 3290.
6 Above n 3.
[16]Separately to the prosecution of the charges:7
(a)In April 2017, Cable Bay applied for retrospective consent to establish the veranda and operate a restaurant and function facility within it; consent to formalise outdoor seating for restaurant guests; consent to use the lawn area for informal dining and drinking; and consent to construct a noise barrier fence close to 85 Church Bay Road. That application was refused on 30 January 2018.
(b)On 2 February 2018, Cable Bay appealed the decision to the Environment Court (the Veranda Appeal).
(c)On 28 February 2018, the Council applied for enforcement orders under s 316 of the RMA for compliance with the 2006 resource consent and the operative plan.8 That application sought orders that Cable Bay cease use of the veranda and outdoor area for restaurant and function guests and cease use of the lawn area for informal dining (the Enforcement Proceeding).
(d)On 17 September 2020, the Environment Court determined the Veranda Appeal by granting consent and imposing 71 conditions.9 Cable Bay appealed to this Court and the appeal was dismissed.10 The Court found that there was no error in the consent in treating 85 Church Bay Rd as a separate site for the purposes of noise measurements.11
(e)On 30 October 2020, the Environment Court cancelled the interim enforcement orders and declined the Council’s application for enforcement orders noting that the orders were not necessary because
7 The background to these separate proceedings is set out at Cable Bay Wine Ltd v Auckland Council
[2021] NZHC 2596 at [22]–[26].
8 Auckland Council v Cable Bay Wine Ltd [2018] NZEnvC 228 [Interim].
9 Cable Bay Wine Ltd v Auckland Council [2020] NZEnvC 154.
10 Above n 7.
11 At [152].
the conditions in the retrospective consent had now addressed the issues.12
The sentencing
[17] The Judge sentenced Cable Bay to a fine of $50,000 together with solicitor’s fee of $113 and court costs of $130. Cable Bay had sought a conviction and discharge under s 108 of the Sentencing Act 2002 or alternatively, a fine in the range of $500 to
$5,000.
[18] The Judge considered that Cable Bay had not demonstrated any remorse nor shown that it would take greater care in the management of noise, so was not satisfied that a conviction and discharge was appropriate.
[19]The Judge rejected Cable Bay’s submissions that the cases involving fines of
$500 to $5,000 were comparable because those cases related to lower-level enforcement measures. The Judge accepted that the Council had discretion as to the enforcement method it chose and was not satisfied that the Council had “used a sledgehammer to crack a nut.”13
[20] The Judge considered that the history of complaints against Cable Bay and the separate proceedings in the Environment Court were relevant in demonstrating that Cable Bay had knowledge of the circumstances and the attendant risks, which put it on notice to take more care.14 The Judge acknowledged that this history was not evidence of prior offending but was relevant to Cable Bay’s culpability.
[21] Turning to the appropriate sentence, the Judge said this was not a one-off incident of a few rowdy patrons making too much noise close to the boundary and considered this case to be “substantially different” from the cases cited by Cable Bay, which were examples of lower-level enforcement for noise issues.15
12 Auckland Council v Cable Bay Wine Ltd [2020] NZEnvC 182 [Final].
13 At [37].
14 At [27].
15 At [38].
[22]In determining an appropriate starting point, the Judge held that:
[39] The real question in assessing an appropriate starting point is whether I should be guided by the five odour cases relied on by the prosecutor or the three noise cases cited by counsel for the defendant. On my review of these decisions, the difference in sentencing levels appears to be based either on the extent of complaints over time or the age of the cases.
[40] Trying as best I can to evaluate the differing factual circumstances in the various cases, I conclude that the gravity of offending and the culpability of Cable Bay Wine in this case sits somewhere between those in Bartosh16 and Te Mata Mushroom Company.17 In my judgement, a starting point of $50,000 is appropriate in this case.
[41] I accept the submissions that no uplift should be added and nor should any discount be made.
Law on appeal
[23] This Court must allow the appeal if satisfied that there is an error in the sentence imposed and a different sentence should be imposed.18 Otherwise, the Court must dismiss the appeal.19
[24] The sentence must be manifestly excessive before the appeal Court may substitute its own views as to the appropriate sentence. The Court will generally not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.20 Whether a sentence is manifestly excessive is to be assessed in terms of the final sentence given rather than the process by which it was reached.21
Sentencing of offences against the Resource Management Act
[25] RMA offences are sentenced under the Sentencing Act. All of the purposes and principles of sentencing under the Sentencing Act are relevant to the extent they are engaged by the particular case.22
16 Manawatu-Whanganui Regional Council v Bartosh [2023] NZDC 29285; and Manawatu- Whanganui Regional Council v Bartosh [2024] NZDC 2033.
17 Hawkes Bay Regional Council v Te Mata Mushroom Company Limited [2018] NZDC 16898.
18 Criminal Procedure Act 2011, s 250(2).
19 Section 250(3).
20 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
21 Ripia v R [2011] NZCA 101 at [15].
22 Thurston v Manawatu-Wanganui Regional Council HC Palmerston North CRI-2009-454-24, 27 August 2010 at [40].
[26] Cable Bay was charged with contravening s 9(3) of the RMA. Section 9(3) provides that no person may use land in a manner that contravenes a district rule unless the use is expressly allowed by, among other things, a resource consent.
[27] Under s 338(1) of the RMA every person commits an offence who contravenes s 9 or contravenes any abatement notice, other than a notice under s 322(1)(c). (Section 322(1)(c) refers to an abatement notice relating to unreasonable noise). The maximum penalty for an offence against s 338(1) is, for a company, a fine not exceeding $600,000.23
[28] The maximum penalty for contravening an abatement notice for unreasonable noise is a fine of $10,000.24
Did the Judge err in relying on sentencing levels adopted in cases involving odour emissions?
[29] In sentencing the court must, among other things, take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences.25 The main ground of appeal was that by ignoring noise emission cases, the Judge did not comply with this principle.
[30] It is both the type of offender and the type of offending that is relevant in applying the principle that there is a general desirability of consistency. When sentencing for RMA offences, relevant considerations include the offender’s culpability, the extent of the environmental damage, deterrence, capacity to pay the fine, disregard for abatement notices or Council requirements and co-operation with enforcement authorities.26 In taking into account the general desirability of consistency, all of those factors (to the extent they are applicable) are therefore relevant.
23 Section 339(1)(b).
24 Sections 338(2) and 339(2).
25 Sentencing Act 2002, s 8(e).
26 Above n 22, at [41].
Cases involving noise emissions for lower level offending
[31] The relevant offence was against s 338(1) where the maximum penalty for a company is $600,000. Breach of an excessive noise direction or breach of an abatement notice for unreasonable noise does not involve a similar offence and that offending is subject to a maximum penalty of $10,000. Those offences are not therefore comparable. The Judge was therefore entitled to disregard sentencing levels adopted for noise emission cases involving a lower level of enforcement involving a lower maximum penalty.
[32] Counsel for Cable Bay then argued that there are noise emission cases involving offences against s 338(1) so the Judge could not disregard those cases.
Cases involving noise emissions for offences under s 338(1)
[33] The Judge noted the Council’s submission that there are a few recent decisions that deal with sentencing for noise emissions and recorded in a footnote reference to those cases.27 The Judge then referred to the Council’s submission that the cases involved contravention of abatement notices where the primary sentencing principle was identified as being the maintenance of the regulatory system rather than simply the emission of noise.
[34] The Judge considered that the real issue was whether the sentence should be guided by the five odour cases or the three noise cases. The Judge did not specify the three noise cases being referred to, but earlier in the sentencing notes recorded Cable Bay’s submission that lower level enforcement methods were effective and referred to three cases where such methods were used.28 It is unclear whether the Judge was referring to those three cases involving lower enforcement levels or other noise emission cases involving offences with the same maximum penalty. The Judge considered that the case was “substantially different” from the three noise cases cited
27 Above n 4, at [14]; citing Thames-Coromandel District Council v Chronophonium Ltd [2015] NZDC 11248; Invercargill City Council v Goodman [2023] NZDC 7558; and Invercargill City Council v Forde [2016] NZDC 26734; Selwyn District Council v Brand DC Christchurch CRI- 2006-009-7579, 4 December 2006; and Gisborne District Council v Stevens DC Gisborne CRN8016006322, 10 August 1998.
28 Auckland Council v Utton [2023] NZDC 26973; Dunedin City Council v Heke [2021] NZDC 18072; Auckland Council v Randell [2016] NZDC 838.
by Cable Bay because on review of those decisions, the difference in sentencing levels is based on the extent of complaints over time or the age of the cases.
[35] I consider that it was necessary for the Judge to consider noise emission cases for offences under s 338(1) as those cases involve the same type of environmental damage and the offending is subject to the same maximum penalty. I therefore consider Chronophonium Ltd, Goodman and Forde.29
[36] Chronophonium Ltd and Ms Petra Naus organised a music festival in January 2015 without obtaining a resource consent. The relevant council had issued an abatement notice to Ms Naus in December 2014. Chronophonium Ltd was charged with: contravening s 9(3) by holding a music festival in a manner that contravened a district rule;30 and contravening an excessive noise direction.31 Ms Naus was charged with contravening the abatement notice.32
[37] The music festival was held between 8–11 January 2015. On 9 January 2015, the noise emissions from the festival exceeded the maximum limits on four occasions between 4.39 pm and 11.58 pm. An excessive noise direction was then issued. The maximum noise limits were again exceeded on three occasions on 10 and 11 January between 7.45 pm and 11 pm.
[38] The Court considered the noise emissions resulted in short term adverse noise effects that occurred through the late afternoon into the evening but before midnight over three days but that “they are not the most serious environmental effects that one could have.”33 The Court considered they were at the lower end of the scale.
[39] In considering culpability, the Court noted that contravening an abatement notice is serious but given Ms Naus’ history of dealings with the relevant council, there was confusion as to whether a resource consent was necessary. The Court considered
29 Chronophonium Ltd, Goodman and Forde all involved offending that was subject to the same maximum penalty. Stevens and Brand were determined prior to an increase in the maximum penalties under s 339.
30 An offence under s 338(1)(a) with a maximum penalty of a fine of $600,000 for a company.
31 An offence under s 338(2)(c) with a maximum penalty of a fine of $10,000.
32 An offence under s 338(1)(c) with a maximum penalty of a fine of $300,000 for a natural person.
33 Thames-Coromandel District Council v Chronophonium Ltd, above n 27, at [45].
that the council had contributed to Ms Naus’ delays in trying to obtain a resource consent. Further, due to noise complaints the prior year, Ms Naus had tried to make enquiries with the council prior to the 2015 event to ensure the event was compliant and had applied for a resource consent but there was insufficient time for it to be processed and granted before the music festival. The council had delayed in informing Ms Naus that it would be unable to process the consent in time.
[40] In setting the starting point, the court noted that “because the evidence of the noise exceedances was not the worst of its kind” a starting point of a fine of $20,000 was adopted.
[41] In contrast, Cable Bay’s offending involved exceeding noise limits on three occasions over a 45-minute period on one day. Cable Bay held a resource consent for the restaurant and function centre and had applied for retrospective consent in relation to the veranda and outdoor area. Cable Bay was not charged with contravention of an excessive noise direction but had previously received excessive noise directions. Cable Bay was also aware that the Council had applied for an enforcement order requiring that it cease using the veranda area, outdoor seating bays and lawn to the south of the restaurant.
[42] In Forde, the relevant council had informed Mr Forde that resource consent was required if he wanted to use the premises for weddings and served an abatement notice on 15 May 2014 requiring that no weddings or other functions were to be conducted. In March 2015 and February 2016, the Council issued infringement fee notices as a result of the property being used as a wedding centre. The Court noted that the activity of a wedding and function venue can have potentially adverse effects on neighbours due to effects such as noise and other effects. The Court considered Mr Forde knowingly continued to operate without a resource consent and challenged the legitimacy of the council’s district plan. Mr Forde also continued to use the property for weddings after receiving an abatement notice. The Court considered the starting points adopted in other cases involving contravention of a condition of a resource consent and contravention of an abatement notice were relevant noting that some involved adverse environmental effects and others did not. He noted that starting
points were at the very low end of the scale where there was no proven environmental harm.
[43] Turning to culpability, the Court considered the activity was low key but was deliberate and adopted a starting point of a fine of $12,500.
[44] In Goodman, Mr Goodman was charged with contravening an abatement notice,34 by managing his mother’s property and allowing it to be used as a demolition yard without a resource consent contrary to an abatement notice served on 25 July 2022.
[45] The relevant council had received a complaint on 29 March 2022 alleging that demolition material was being brought on to the property after 7 pm and generating noise. When the council sent a letter to the company using the site, an associate of Mr Goodman’s visited the council’s offices and was abusive towards staff. During April the council received further complaints from different parties in relation to the site.35 The council met with Mr Goodman’s mother who said correspondence should be sent to him. An abatement notice was served on 25 July 2022 requiring the site to be cleared by 15 August 2022 and that the use as a storage facility was to cease. The council inspected the site on 18 August 2022 and no materials had been cleared. Charges were then laid.
[46] Mr Goodman thought that the property was in a light industrial zone and not a residential zone. Once it was clear it was zoned residential, he pleaded guilty. He also made arrangements for the site to be cleared so no enforcement order was necessary.
[47] In sentencing Mr Goodman, the Court noted the factors to consider included the nature of the environment affected, the extent of damage and the deliberateness of the offending.36 The Court noted the harm did not involve any pollutants escaping into the environment or any harm beyond causing a nuisance while the activity
34 An offence against s 338(1)(c) of the RMA.
35 The decision refers to April 2020 but this appears to be an error and is likely April 2022 as the decision refers to “further” complaints.
36 At [14].
occurred. The activity disturbed the peace and quiet for neighbours and affected the integrity of the district plan and the resource consent process.
[48] The Court considered the offending was deliberate because it followed receipt of an abatement notice and repeated attempts by the Council to work with the defendant. Those efforts were ignored and included threats and intimidation. The Court considered other comparable cases involving contravention of the district plan and adopted a starting point of $20,000.
[49] Chronophonium, Forde and Goodman are all relevant in that they involved offending that caused similar environmental effects and involved similar non- compliance with the regulatory system (whether that be contravention of an abatement notice, other than for unreasonable noise, or contravention of a district rule). Those cases also involved offending with the same maximum penalty, although Mr Forde and Mr Goodman were subject to the lower maximum penalty for natural persons.
[50] I therefore reject the Council’s submission that the cases should be ignored because they involve breach of an abatement notice. Chronophonium Ltd’s offending involved breach of a district rule. Parliament has imposed the same maximum penalty for contravention of an abatement notice under s 338(1)(c), contravention of an enforcement order under s 338(1)(b) and contravention of a district rule under s 338(1)(a) thereby indicating that Parliament considers that the seriousness of the offending is similar.
Cases involving odour
[51] I now consider the sentencing Judge’s view that Cable Bay’s offending sits somewhere between the offending in Hawkes Bay Regional Council v Te Mata Mushroom Company Ltd where a starting point of a fine of $40,000 was adopted,37 and the offending in Manawatu-Whanganui Regional Council v Bartosh where a starting point of a fine of $60,000 was adopted.38
37 Above n 17.
38 Above n 16.
[52] Te Mata Mushroom Company Ltd (Te Mata Mushroom) produced mushrooms on its property. It pleaded guilty to two charges of allowing odour to escape beyond the property boundary on 12 and 15 February 2018 which was contrary to the conditions of its resource consent. The consent required that no offensive odour escape beyond the property boundary. There had been an earlier prosecution in 2015 where Te Mata Mushroom was convicted of a representative charge for similar offences. An enforcement order was made requiring an application for a resource consent, which Te Mata Mushroom had obtained. There had also been infringement notices issued against Te Mata Mushroom in October 2017 and records of ongoing complaints.
[53] The Court noted that neighbours had been affected by the odours and accepted it had a “severe impact” on them. The Court did not consider that there was high culpability or that the offending was deliberately done or negligently done. Te Mata Mushroom was conscious of the problem and was taking steps to remedy the situation. The Court adopted a starting point of a fine of $40,000 and did not impose an uplift for the previous conviction.
[54] In Bartosh, Paranui Organics (2006) Ltd (Paranui) and Mr Bartosh were jointly sentenced. Paranui operated a commercial composting business. It was charged with discharging a leachate onto land and discharging odour in a manner that was not expressly allowed by a national environmental standard, a regional rule or a resource consent. Mr Bartosh was charged with breaching an abatement notice by discharging offensive odour beyond the property boundary.
[55] Between 2 December 2021 and 17 March 2022 complaints were made about the odour emanating from Paranui’s premises. In arriving at a starting point, the Court noted the effects of the odour which had been described as “the smell of sweet sewage and dead or rotting animal flesh.”39 Complainants had reported that the odour had an extreme adverse effect on their everyday lives.
[56] The Court then considered culpability and assessed the history and context of the offending. The defendants had been issued five infringement notices between May
39 At [12].
2019 and July 2021. There were 56 odour complaints from the defendants’ neighbours over the offending period of three months. Three of the 56 complaints had been verified. The three verified breaches were contrary to the terms of the resource consent. The Court considered that the defendants must have been aware of the high degree of risk of their operations generating offensive odours which might be experienced by neighbours and that their odour management had been inadequate. The Court considered that this went directly to culpability. The Court considered that if conditions could be ignored, that undermined the integrity of the resource consent system.
[57] In setting the starting point, the Court considered the starting points adopted in other odour cases, noting that they ranged from $40,000 in Te Mata Mushroom Company Ltd to $75,000 in Otago Regional Council v WG Limited Partnership.40 The Court observed that the starting points depended on the severity of the environmental effects, the number of offending incidents, past history, culpability and more.
[58] The Court adopted a starting point of a fine of $60,000 noting that it was comparable with another case where the odour was described as “vile” but the offending was only on one day.41 In contrast, while the nature of the odour was not as severe, the offending had occurred on three separately identified instances over a period of time. The Court considered that both cases had involved a “history of infringement notices and breaches of a resource consent and in both cases culpability was high.”42
[59] While it was open to the Judge to consider the odour cases, in doing so it was necessary to identify what aspects of the odour offending were similar and what aspects were different in circumstances where the environmental discharge (odour vs noise) is not the same. It is clear from a review of the odour cases that environmental damage was a relevant factor in the starting points adopted which included the impact and number of incidents.
40 Otago Regional Council v WG Limited Partnership [2022] NZDC 21184.
41 At [25].
42 At [26].
[60] Te Mata Mushroom’s offending took place over three days and the Court accepted evidence from victims that it had a “severe impact”. Te Mata Mushroom also had a previous conviction for the same offending and no uplift was applied. To that extent, its offending and history was more serious than Cable Bay’s offending without having regard to the difference between odour and noise discharge.
[61] In sentencing Cable Bay, the Judge did not consider that the case was simply a one-off incident of a few rowdy patrons making noise close to the boundary and noted that “just as past good behaviour can properly be prayed in aid of submissions seeking a lesser sentence, so past bad behaviour and a failure to learn from it may be taken into account as an aggravating factor in sentencing.”43
[62] For the purpose of assessing environmental damage, the noise emissions only involved three incidents over a 45-minute period on one day. That aspect of the offending was less serious than in Chronophonium Ltd, Te Mata Mushroom and Bartosh.
[63] As to the relevance of the history of complaints, this Court has provided guidance on how complaints should be taken into account when sentencing for RMA offences indicating what weight, if any, should be given to previous complaints.
Previous complaints
[64] In Wallace Corporation Ltd v Waikato Regional Council, France J noted that there were difficulties in giving weight to a history of complaints when there was no information about whether the complaints had been verified.44 While the number of incidents was certainly relevant it could not be equated with past convictions. The Council should be able to refer to earlier non-charged incidents but that if this were to happen, the process followed must be sufficiently clear to establish that an uncharged breach had indeed occurred or is accepted as having occurred.45 France J was not
43 At [38].
44 Wallace Corporation v Waikato Regional Council HC Auckland CRI-2006-404-26, 8 June 2006 at [18].
45 At [19].
satisfied that the breaches in that case were deliberate. The fact of complaints is therefore relevant, but it cannot be evidence of prior offending unless verified.
[65] When sentencing Cable Bay, the Judge expressly acknowledged that the complaints could not be relied on as evidence of prior offending as that would be contrary to s 25(c) of the New Zealand Bill of Rights Act 1990.46 The Judge was not therefore approaching the complaints as evidence of prior offending.
[66] In Walling v Waikato Regional Council, Downs J accepted that the sentencing Judge had not approached Mr Walling’s previous conduct as evidence of prior offending but rather as evidence relevant to culpability.47 Mr Walling knew of the circumstances in relation to earlier offending (of another) which in turn indicated he knew the farm posed risks of discharge of effluent. Mr Walling failed to address those risks and that made his offending more serious than it would otherwise have been.48
[67] Walling therefore indicates that knowledge of the risks of the circumstances giving rise to previous offending (even by another) is relevant to culpability. That is, a defendant may be more culpable if they knew of the circumstances that would rise to a risk of offending and had failed to take steps to address those risks.
[68] Cable Bay argued that its circumstances were different to Mr Walling’s because it was not put on notice that the activities amounted to offending unlike Mr Walling who knew the circumstances had led to the conviction of another.
[69] I do not accept that Cable Bay did not have notice that allowing activities in the outside area of its restaurant would give rise to a risk of contravening the maximum noise levels. At the trial, the Council provided the incident logs of noise complaints it had received regarding Cable Bay. Those logs recorded complaints from 2014 to 2018. The description of the complaints includes “loud music” and “loud party noise”. The outcomes of complaints include “no noise”, “not excessive”, “excessive noise direction issued”, “duplicate”, “unknown”.
46 Above n 4, at [27].
47 Walling v Waikato Regional Council [2023] NZHC 3437 at [23].
48 At [24].
[70] At the time of the offending, Cable Bay had applied for a retrospective resource consent for activities on the veranda area, outdoor seating bays and lawn and the Council had applied for an enforcement order requiring Cable Bay to cease using those areas for restaurant and function facilities. To that extent, Cable Bay knew there was a risk of exceeding noise limits if activities outside continued.
[71] Cable Bay also argued that the 2016 letter from the Council is a significant mitigating factor. I consider that the letter is not a separate mitigating factor but evidence that is relevant to Cable Bay’s knowledge of the risks arising from its conduct. The letter indicates there were conflicting legal views as to whether 85 Church Bay Road was a separate lot, which is relevant to compliance with condition 25 of the consent.
[72] Cable Bay knew that the issue of whether 85 Church Bay Road was included within the site was not legally certain. The letter did suggest that the Council would not measure from 85 Church Bay Road because it would continue its current practice of measuring from the boundary of the site. That assurance was provided directly after indicating that until the Environment Court had determined the issue (as to whether 85 Church Bay is part of the site), the Council would process consents on the basis that the land contained within the title was the site. The letter therefore suggests that the risk of the Council prosecuting for noise measurements taken from 85 Church Bay Road was lower until the Environment Court had resolved the site issue.
[73] The letter was sent in 2016 and the noise complaints continued in 2017 and 2018 and the Council applied for an enforcement order in February 2018 thereby again putting Cable Bay on notice of the risks arising from outdoor activities that generated noise.
[74] Cable Bay was therefore on notice that there was a risk that allowing patrons outside could give rise to a contravention of the conditions of the resource consent. The issuing of excessive noise directions, complaints and the application for an enforcement order put Cable Bay on notice that such a risk existed. The Judge did not err in considering that the history was evidence of Cable Bay’s knowledge and the
attendant risks. The issue is whether that knowledge justified the starting point adopted.
[75] I consider that it was open to the Judge to consider the treatment of previous complaints in the odour cases but in doing so it was necessary to consider the weight to be given to that knowledge. Wallace indicates that previous unverified complaints cannot be given the same weight as previous convictions. Walling indicates that at most, a history of complaints may indicate knowledge of risks which demonstrate a greater degree of culpability. Here, Cable Bay knew there was a risk of exceeding noise limits if outdoor activities were allowed but nevertheless allowed those activities to occur. That indicates a degree of recklessness.
[76] In assessing culpability, it was necessary to consider whether the history of complaints in relation to Cable Bay is comparable to the history of complaints in the noise and odour cases. The history of complaints in Te Mata Mushroom was combined with a prior conviction for the same type of offending. In Bartosh, three of the 56 complaints were verified. In Chronophonium Ltd an excessive noise direction and an abatement notice had been issued to Carl Naus during the 2014 festival and then again after the 2015 festival had started so Chronophonium Ltd too was on notice of the risks of allowing the music festival to continue.
[77] Here, there was a history of complaints and excessive noise directions over a reasonably lengthy period and then an application for an enforcement order. There was no evidence that the complaints were verified. Cable Bay had also applied for retrospective consent so to that extent had acted to try to ensure regulatory compliance.
[78] In those circumstances, I do consider that the Judge was entitled to account for the history of complaints, but it was also necessary to identify the extent to which the starting points in the odour cases were arrived at because of other factors that were different including the environmental damage and the number of incidents and duration. By applying the odour cases without regard to the noise cases (and in particular, Chronophonium Ltd) I consider that the Judge gave too much weight to the history of complaints and arrived at a starting point that was manifestly excessive. I consider that the offending was less serious than in Te Mata Mushroom and Bartosh
and slightly more serious than in Chronophonium Ltd because the environmental damage was less than those cases and the number of incidents and duration was also less. I consider that Cable Bay’s culpability was greater than in Chronophonium Ltd because of the extent of the history of noise complaints which indicates a greater degree of knowledge of the risks and a longer period over which Cable Bay could have put in place processes to mitigate the risk of offending.
[79] I therefore consider that an appropriate starting point is a fine of $30,000. There is no dispute that no further reduction or uplift should be applied.
Result
[80]The appeal is allowed.
[81] The sentence of a fine of $50,000 is substituted for a fine of $30,000. The sentence in relation to costs otherwise stands.
[82] The parties are encouraged to agree costs of the appeal. If they are unable to agree, costs memoranda of no more than three pages are to be filed and served with Cable Bay filing and serving a costs memorandum within 15 working days of the date of this judgment and the Council filing and serving a costs memorandum within a further 10 working days after that.
Tahana J
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