McNeills Poultry Farm (2006) Ltd v Chesney no.1 Ltd

[2024] NZHC 4006

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2024-425-115

[2024] NZHC 4006

BETWEEN

MCNEILLS POULTRY FARM (2006) LTD

Plaintiff

AND

CHESNEY NO. 1 LTD

Defendant

AND

CHESNEY NO. 2 LTD

Second Defendant

Hearing:

17 December 2024

further memoranda filed 20 December 2024

Appearances:

S Jones for Plaintiff

A P Holgate for Defendants

Judgment:

20 December 2024

JUDGMENT OF EATON J

(application for interim injunction)

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

MCNEILLS POULTRY FARM (2006) LTD v CHESNEY NO. 1 LTD [2024] NZHC 4006 [20 December 2024]

Introduction

[1]    The plaintiff operates a poultry farm from premises at McQuarrie Street, Invercargill. The land is zoned rural and has been used for poultry farming since 1938.

[2]    The first defendant is developing land on the corner of McQuarrie Street and Chesney Street (the first development site) pursuant to a resource consent issued to Inspire Homes Ltd, permitting a 47-lot residential subdivision. The second defendant is very closely aligned to the first defendant and owns  a  block  of  land  on  Chesney Street that is earmarked for residential development (the second development site). Both sites are in close proximity (within 100 metres) of the poultry farm.

[3]    The first defendant has engaged a contractor to undertake earthworks on the first development site. The contractor is using heavy machinery. The plaintiff says the noise and vibration emanating from the first development site is causing the chickens to experience stress, leading to reduced body weight, reduced egg production and giving rise to significant animal welfare issues.

[4]    In a statement of claim dated 29 November 2024, the plaintiff alleges the first defendant’s development is causing the plaintiff to suffer unreasonable and continuous interference with its right to the use and enjoyment of its poultry farm, causing loss and damage. The plaintiff seeks an injunction and damages against the first defendant. An injunction is also sought against the second defendant in anticipation of the same actionable nuisance arising when that land is developed.

[5]    The plaintiff applies for an interim injunction. The draft order originally filed seeks to prevent the defendants from “creating unnecessary noise and vibration on the two development sites”.

[6]    The  application  for  interim   relief   was   given   a   priority   hearing   of  17 December 2024. Some progress towards a resolution was reached during the course of the hearing and it was adjourned for discussions to continue or for an amended application to be filed. On the morning of 20 December, Mr Jones for the plaintiff filed a further amended application and Mr Holgate for the defendants filed a

memorandum in opposition. Given the impending vacation it has been necessary for me to deliver this judgment with urgency.

Background and supporting evidence

[7]    Nigel Hewitson is the sole shareholder and director of the plaintiff. He has been operating the poultry farming operation at McQuarrie Street properties since 2012. The commercial farm has over 5,000 layers and seven different sheds. It is a cage-free and free-range operation. To sustain  the  farm  Mr  Hewitson  procures 800 – 1,000 day old chickens from a hatchery three times a year.

[8]    Around September 2024, the first defendant commenced earthworks on the first development site. By late October the subcontractor, Ryal Bush Transport Ltd, engaged by the first defendant, began using heavy machinery including trucks, earthmoving equipment and a vibrating compactor. Mr Hewitson observed an increase in the levels of noise and vibration. He also observed a change in the hens’ behaviour. They appeared to be stressed. Mr Hewitson met with the contractors and the first defendant’s representatives encouraging those with responsibility to reduce the levels of noise and vibration.

[9]    On 13 November the plaintiff’s solicitor wrote to the director of the first and second defendants, Mr Gonczy, requesting that the first defendant take steps to mitigate the noise and vibrations to prevent further disruption to the plaintiff’s business. The letter referred to the obvious signs of stress exhibited by the chickens, and a consequential reduction in egg production. The letter was copied to the first defendant’s subcontractor, its project manager and to the planning and resource management division of the Invercargill City Council.

[10]   On 19 November the plaintiff arranged for a vet to inspect the flock. The chickens were assessed as being free from disease but showing signs of stress. The vet report referred to the increased mechanical noise and vibrations from construction sites and said that it was in line with the chickens’ change in behaviour and loss of egg production.

[11]   On 21 November, Mr Holgate for the first and second defendants responded to the plaintiff’s letter advising that further time was required to confirm instructions. Over the next week the plaintiff’s solicitor endeavoured to negotiate a solution and advised that an interim injunction would be sought if the matter was not satisfactorily resolved. Mr Holgate continued to advise that he was awaiting further instructions.

[12]   Proceedings were filed on 29 November. The plaintiff’s solicitor continued to reiterate to the defendants that the plaintiff sought to resolve matters amicably and suggested that alternative machinery for the defendant’s development could be utilised.

[13]   In a reply affidavit dated 10 December, Mr Hewitson says there has been no material reduction in the noise or vibration levels since the proceedings were issued. The behavioural changes he had earlier identified were continuing and getting worse. He deposes that deaths are now being caused by chickens swarming on top of other birds and smothering them to death. He says this is not normal bird behaviour and that the poultry sheds are now “bedlam”. He describes the chickens as making “a huge noise” and engaging in “hugely destructive behaviours”. He says that the chickens are eating significantly less and that production continues to decline. Their feed has reduced by around 15 per cent since the noise and vibration commenced.

[14]   Mr Hewitson says that he would normally be expecting the flock to produce around 3,750 eggs per day but that at present the total of graded eggs is around 1,200 per day, reflecting only 32 per cent of forecasted production. He anticipates that the chickens will be totally off the lay by Christmas. He is concerned that the chickens continue to lose weight and lose condition and that if the noise and vibration is not reduced, for animal welfare reasons, he will have to decide whether to have the chickens euthanised or try and secure an alternative venue for the chickens to be nursed back to good health. Mr Hewitson himself is wary that he is at risk of prosecution for such a serious animal welfare issue.

[15]   Presently he has investigated but been unable to identify any option for re-housing the birds. Mr Hewitson believes that if an injunction is not granted, the business may have to close. He believes there is potential for the flock to return to

normal production if the noise and vibrations are immediately reduced to a reasonable level.

[16]   Mr Hewitson deposes that he has learnt that the second defendant has purchased a sizeable section at 98 Chesney Street and intends to undertake a residential development on that property. He has researched the first and second defendant companies and  deposes  that  both  are  limited  liability  companies  comprising  100 shares. They share the same registered office and address for service, the same shareholding and the sole director of each company is Mr Gonczy.

[17]   The second development site is about the same distance from the plaintiff’s poultry farm as the first development site. Mr Hewitson anticipates that the second defendant will undertake very similar activities to that being undertaken by the first development on the second development site, causing the same problems for the poultry farm.

[18]   In his affidavit, Mr Gonczy refers to the  resource  consents  issued  to  Inspire Homes Ltd, but confirms it is the first and second defendants who are undertaking the development at both sites. Mr Gonczy says the earthworks are necessary because the surface layer of the land and the substrate must be in state to support the construction of houses, roads and driveways, and to provide the infrastructure the Invercargill City Council requires for connection to council utilities. He confirms the contractors are presently working 7 am to 7 pm, six days a week and that the current stage of earthworks are scheduled to end on 29 January 2025.

[19]   Mr Gonczy calculates that if the earthworks were stopped, the first defendant would suffer losses of about $10,000 per day. He points to evidence that the plaintiff’s property at 315 McQuarrie Street is presently for sale. In his second affidavit he says defendants have engaged a geophysical specialist to measure sound and vibration onsite, and that they intend taking advice from a veterinary specialist.

[20]   Mr Gonczy believes that any losses suffered by the plaintiff by way of reduced egg production or death of chickens can be adequately compensated by way of damages, if the plaintiff can establish the defendants’ liability.

[21]   The defendants further rely on an affidavit from Mr Winsloe who is a manager employed by the subcontractor. He confirms the machinery used to carry out earthworks has been operated in accordance with the local authority consents and that steps have been taken to reduce unnecessary noise in the form of removing reversing beepers, only using factory specification exhausts and using a compaction testing trail. He says the subcontractors are not running compaction plant unnecessarily, and that their methodology means they run excavators and bulldozers on an “as needed” basis.

[22]   Very shortly before court commenced further evidence was filed. First, for the defendants, an unsworn affidavit  from  Michael  Finnemore,  a  director  of  Southern Geophysical Ltd. Mr Finnemore has been engaged on behalf of the defendants to monitor vibrations emanating from the first development site. His company carried out vibration monitoring from 11 December to 14 December, adopting a German compliance standard that is recognised internationally. The monitoring results recorded on graphs demonstrate the intensity of the vibration and the time over which those vibrations were monitored. The vibrations did not exceed the compliance standard of 20 mm/s 1-10 Hz.

[23]   For the plaintiff, Mr Jones filed an affidavit from Dr Lindsay Matthews, the managing director of Matthews Research International LP, holding the position of principal scientist. He has practiced as a researcher for 40 years, with a specialised focus on farm animal behaviour and welfare. In his evidence, Dr Matthews addresses research on the effects of noise vibration and related events on poultry behaviour, wellbeing and production. He relevantly says:

(a)Poultry have acute hearing ability across a wide frequency range. They can hear very low and higher pitched sounds. Poultry and birds are one to two orders of magnitude more sensitive than humans to vibration frequencies between 0.5 and 20 Hz.

(b)Vibrations can cause internal organs to resonate. The resonance of internal organs during vibration exposure can present a significant aversive stimulus to birds.

(c)The impact of noise on poultry is influenced by the physical properties of the sounds (type, frequency, intensity and duration).

(d)Sudden unexpected or loud noises can cause an adverse response in poultry including physiological stress responses, reduced feeding, increased aggression, feather picking, poorer health and reduced egg production and quality.

(e)Noise from diesel engines is particularly aversive to poultry.

(f)Prolonged exposure to noise has greater effects on the production in short term exposure.

(g)Vibration can adversely affect normal behaviour patterns, induce fear and stress responses, impair muscle function and cause a wide range of negative effects in poultry fear and discomfort.

(h)The effects described by Mr Hewitson are consistent with the effects reported as having occurred following activity at construction sites.

(i)There is no feasible way for Mr Hewitson to mitigate these effects.

The application

[24]   The application for interim injunction is opposed on the grounds that the defendants have resource consents to undertake earthworks and will suffer financial hardship if the development is delayed. In a notice of opposition, the defendants contend that if they are liable to the plaintiff for lost egg production and/or the euthanising of any chickens, that damages will be an adequate remedy. In written and oral submissions, the defendants questioned whether the plaintiff has raised a serious issue that might succeed at trial.

[25]   By a minute of 12 December 2024, I expressed doubt that an order in the terms proposed was enforceable. Mr Jones for the plaintiff acknowledged that it was not.

He said the plaintiff had struggled to settle on the terms of an interim injunction because until the hearing, the defendants had elected not to engage with the plaintiff.

[26]   On the morning of the hearing both parties filed engineering evidence. Helpfully, Mr Hewitson on behalf of the plaintiff and Mr Gonczy on the behalf of the defendants joined the hearing via AVL. I understand that this was the first time that the parties had “come together” and listened to each other’s concerns. Some progress was made. It was agreed the defendants would construct a bund wall to limit noise emanating  from  the  first  development  site.  Mr  Jones   proposed   a   further seven measures that the defendants might take to limit noise and vibration. The hearing was then adjourned for the parties to seek engineering advice and to continue discussions.

[27]   On 20 December, Mr Jones filed an amended proposed order. Mr Holgate has filed a memorandum in response largely opposing the amended proposal.

Legal principles applicable to interim injunctions

[28]The principles applying to the grant of an interim injunction are well-settled.

It requires the Court to find that:1

(a)there is a serious question to be tried;

(b)the balance of convenience favours the granting of the injunction; and

(c)the overall justice of the case requires it.

[29]   The purpose of an interim injunction is to improve the chance of the court being able to do justice after a determination of the merits at trial. The basic principle is for a court to take whichever course seems likely to cause the least irremediable prejudice to one party or another.2

1      NZ Tax Refunds Ltd v Brooks Homes Ltd [2013] NZCA 90, (2013) 13 TCLR 531 at [12]; Intellihub v Genesis Energy Ltd [2020] NZCA 344 at [23]; Klissers Farmhouse Bakeries v Harvest Bakeries Ltd [1985] 2 NZLR 129 at 142; and American Cyanamid Co v Ethicon Ltd [1975] AC 396 (HL).

2      Commerce Commission v Viagogo AG [2019] NZCA 472, [2019] 3 NZLR 559 at [31], citing National Commercial Bank Jamaica Ltd v Olint Corp Ltd [2009] UKPC 16, [2009] 1 WLR 1405 at [16]–[17].

[30]   A serious question is one that is not frivolous or vexatious, and one where the plaintiff is able to satisfy the Court that it has a real prospect of succeeding at trial.3

[31]   Assessing the balance of convenience, involves balancing the risk of doing an injustice. 4 It is a broad and flexible inquiry.5 The Court must decide whether granting or refusing an injunction would, after the action itself has been tried and the issues between the parties determined, fairly allow the adjustment of the rights of the parties in a way that accords with fairness and justice.6 The question of balance of convenience arises generally only where there is doubt as to the adequacy of damages.7

[32]   The third stage is the overall justice assessment. The Court of Appeal has emphasised that in every case the judge has to stand back and ask where overall justice lies.8 Marshalling considerations under the non-exhaustive heads of serious question to be tried and balance of convenience is an aid to determining this ultimate question.9 It is essentially a check on the position that has been reached following analysis of the first two stages.10 It may involve considerations such as the public interest and the connection of the defendant to New Zealand.

[33]   The overall grant of an interim injunction involves the exercise of a discretion, which is amenable to appeal on the basis that the judge has erred in law, taken account of an irrelevant matter, failed to take account of a relevant matter or is plainly wrong.11 However, the individual stages of the court’s consideration involve judicial evaluation rather than the exercise of a discretion.

3      Re Lord Cable (dec’d) [1976] 3 All ER 417 (Ch) at 431; and Hannon v Senior Trust Capital Ltd

[2023] NZHC 16 at [40].

4      McLaughlin v McLaughlin [2019] NZHC 2597 at [37], citing Cayne v Global Natural Resources Plc [1984] 1 All ER 225 (CA) at 237.

5      McLaughlin v McLaughlin, above n 4, at [38].

6      Congoleum Corp Ltd v Poly-Flor Products (NZ) Ltd [1979] 2 NZLR 560 (CA) at 571.

7      American Cyanamid Co v Ethicon Ltd, above n 1, at 408–409 and 510–511.

8      Klissers Farmhouse Bakeries v Harvest Bakeries Ltd, above n 1, at 142.

9      At 142; and see NZ Baking Trades Employees’ Industrial Union v General Foods Corp (NZ) Ltd

[1985] 2 NZLR 110 (CA).

10     NZ Tax Refunds Ltd v Brooks Homes Ltd, above n 1, at [47].

11     NZ Tax Refunds Ltd v Brooks Homes Ltd, above n 1, at [13].

Submissions

Plaintiff ’s submissions

[34]   Mr Jones places considerable weight on the failure of the defendants to engage with the plaintiff with a view to reaching a compromise that will not prohibit the defendant’s development but will limit the levels of noise and vibration. He submits there is clear evidence that the chickens are suffering as a consequence of the defendant’s development. He submits that absent an injunction there is a very real risk that the plaintiff’s business will fail and be forced to close its doors. He also points to serious animal welfare issues, with an increasingly elevated risk of the plaintiff having to euthanise the flock of 5,000 chickens if their levels of suffering are not addressed.

[35]   Mr Jones submits there must be alternative mechanisms of carrying out the earthworks that do not engage such high levels of noise and vibration. Mr Jones places significant weight on the evidence of Dr Matthews whose evidence only became available very shortly prior to the commencement of the hearing. Mr Jones points to that evidence to support the submission that the type, frequency, intensity and duration of noise can adversely affect the chicken’s wellbeing and productivity, and that mechanical vibrations are likely impacting the chickens’ internal organs creating a significant aversive stimulus to the birds.

[36]   Mr Jones outlined a number of practical measures that he had, during the course of the hearing, discussed with Mr Hewitson and Dr Matthews. The plaintiff’s position as regards reasonable measures the defendants should be required to take are captured in the amended application.

Defendant’s submissions

[37]   Mr Holgate on behalf of the defendants explained the challenge with which the defendants were confronted, having no prior knowledge that the development was causing issues for the poultry farm. He submits the defendants have acted responsibly but, not being experts in relation to either noise, vibration or poultry farming, have required time to take appropriate advice.

[38]   He highlights the expert opinion of Mr Finnemore, that vibrations caused by the earthworks do not exceed a recognised international standard. Mr Holgate submitted that Mr Finnemore’s evidence adequately addresses the question as to whether there are unnecessary vibrations being caused by the first defendant. As regards noise, he advised that he had preliminary discussions with Mr Gonczy regarding a proposal that the first defendant erect a bund wall on the boundary between the first development site and the plaintiff’s land. Since the hearing the defendants have provided an undertaking to construct a bund wall to address the noise issue.

[39]   Mr Holgate confirmed that the second defendant has no current plans to commence a development on the second development site. He was confident the first defendant would be willing to provide an undertaking to the plaintiff to give advance notice of any plans to undertake earthworks on that site.

[40]   As regards the amended application, Mr Holgate submits the various measures proposed are either unreasonable, unsupported by evidence and would have the effect of forcing the first defendant to cease earthworks. He says the plaintiff has failed to take steps to mitigate its position.

Analysis

[41]I am satisfied that it is appropriate that an interim injunction should issue.

Serious issue

[42]There is in my view a serious issue to be tried.

[43]   The plaintiff contends that the defendants are liable in nuisance. They say their longstanding right to peaceful enjoyment of the land is being denied by the noise and vibrations effected by the defendant’s development. The first defendant says they are merely engaging in a conventional residential land development using conventional machinery and doing so in accordance with a resource consent. They say the plaintiff’s issue is really with the local council who have rezoned the plaintiff’s land as residential. Further, Mr Holgate says there is a live issue as to causation.

[44]   I am satisfied that the noise and vibrations emanating from the first defendant’s development site is having significant adverse consequences for the chickens on the plaintiff’s poultry farm. That is a reflection of Invercargill town’s expansion, now spreading to the country.

[45]   The first defendant is operating under a resource consent and an earthworks consent. It is not suggested the defendant’s activities are contrary to that consent. However, the grant of planning or resource consent pursuant to powers delegated by the Resource Management Act 1991 does not have the effect of extinguishing private rights or licencing. Lord Neuberger P said:12

…it seemed wrong in principle that, through the grant of a planning permission, a planning authority should be able to deprive a property owner of a right to object to what would otherwise be a nuisance…

[46]   Mr Holgate does not contend that the resource consent answers the plaintiff’s case. Rather, he submits that the poultry farm is an operation of abnormal sensitivity protecting the defendants from liability in nuisance.

[47]   A poultry farm may well be abnormally sensitive. Indeed, the expert evidence of Dr Matthews confirms that chickens are more sensitive than humans to noise and vibration. But I think there is a good case to for the plaintiffs to argue that the first defendant was on formal notice from the Invercargill City Council of its obligation to operate best practices to mitigate the reverse sensitivity effects for the neighbouring poultry farm.

[48]   Mr Gonczy has produced the resource consents issued to Inspire Homes Ltd. The consents themselves are silent as to noise and vibration levels, but as counsel have observed, the District Plan addresses noise levels but not vibration levels.

[49]   Relevantly the Invercargill City Council’s planning consultation wrote to Inspire Homes Ltd on 6 December 2023 confirming the resource consent to develop the first development site and observing under the heading “reverse of sensitivity”:

12     Lawrence v Fen Tigers Ltd [2014] UKSC 13, [2014] AC 822 at [90]. See also Ports of Auckland Ltd v Auckland City Council [1999] 1 NZLR 601 (HC) at 611.

It is noted the site is located within close proximity to an established chicken farm. The proposed residential activities are permitted within the residential 1 zone and the chicken farm is operating as a complying activity within the Rural Zone. Thus, both activities can be established as of right. It is expected that both sites are operated according to best practices to mitigate reverse sensitivity effect.

[50]   I do not consider it appropriate to focus on the reasonableness of the defendant’s actions in the abstract but in the context of neighbours operating from adjoining residential and rural land.

[51]   There is a serious issue as to whether that amounts in law to the tort of private nuisance. When a plaintiff has established that there is a serious question to be tried, the relative merits of the parties’ cases should not assume prominence in consideration of where the balance of convenience lies.13

Balance of convenience

[52]I am satisfied that the balance of convenience favours the plaintiff.

[53]   At first blush, the adverse consequences for both parties, if ultimately successful at trial, could be remedied by an award of damages. The plaintiff has filed an undertaking as to damages.14 Their financial position has not been questioned by the defendants. The plaintiff is concerned that the first and second defendants are, in effect, shell companies incorporated for the purpose of the development and may well not exist at a time when the trial is finally determined and therefore not able to satisfy any award of damages.

[54]   Notwithstanding the notice of opposition, Mr Holgate did not seek to persuade me that an award of damages would be adequate to compensate the plaintiff in the event of their success at trial. In any event, I am satisfied that is not the case.

[55]   The plaintiff’s poultry farm has been operating on its current site since 2012. It operates on land with a long history of poultry farming. Mr Hewitson has a full-time employee. I accept his evidence that if measures are not taken to reduce the level of

13     Shotover Gorge Jetboat Ltd v Marine Enterprises Ltd [1984] 2 NZLR 154 (HC) at [157].

14     As required by High Court Rules 2016, r 7.54(1).

noise and vibration, there is a very real risk of serious animal welfare issues, potential euthanisation of the entire flock and ultimately the closure of the plaintiff’s business. I do not consider those consequences can be adequately addressed by an award of damages.

[56]   I consider the relative strength of the parties’ positions to be a neutral factor. I am, however, satisfied that the failure of the defendants to implement any particular practices to recognise the reverse sensitivities of a poultry farm, combined with the failure to engage with the defendants when an emerging crisis was revealed, are relevant in assessing the balance of convenience and favour the plaintiff.

[57]   Had  the  defendants,  before  embarking  on   earthworks,   engaged   with Mr Hewitson to ascertain what measures might be put in place to limit reverse sensitivities, legal proceedings may not have been necessary, certainly not an urgent application for interim relief.

[58]   Further, the first defendant’s work programme anticipates the earthworks on the first development site being completed by 29 January. The restrictions imposed by an interim injunction will not cease the defendant’s operations, at worst it will prolong the earthworks for a short period. I acknowledge that may well add to the defendant’s costs. No evidence has been offered to particularise any cost consequences, but I am satisfied those costs would not be significant.

Interest of justice

[59]   Finally, I am satisfied that the overall interests of justice favour the granting of an interim injunction to limit the noise and vibration emanating from the first development site. Again, that turns on the animal welfare issues that arise, and the lack of notice that the plaintiff received to be able to respond to the issues that have arisen from the works carried out on behalf of the first defendant.

Conditions to attach

[60]   The more challenging issue in this case is the terms of an interim injunction. To the extent the draft order seeks to prevent the defendants from creating any

unnecessary noise and vibration, I remain of the view it is too broad. The amended order proposes a number of conditions. In my view the conditions that I find to be necessary and reasonable are more appropriately formulated as the terms of an interim injunction. I deal with each of those conditions.

(a)The defendants shall build a bund wall around the perimeter of the first defendant’s site in accordance with the advice of a qualified structural engineer who is to oversee the installation, to the extent necessary to reduce the noise emanating from the site.

[61]   The defendants have provided an undertaking to construct a bund wall on the construction site before undertaking any further earthworks. That bund wall will begin at the northern boundary of the property at 325 McQuarrie Street and continue north along the boundary of the first defendant’s land for 100 metres.

[62]   The defendants contend that the plaintiff’s proposal that the bund wall be extended around the entire perimeter of the first defendant’s site is extreme and absurd. Mr Holgate contends there is not enough material onsite in order to construct such an extensive bund wall, and the space such material and a wall would occupy would render the proposal unworkable.

[63]   I am satisfied that the defendant’s proposal as reflected in the undertaking has been made following consultation with an appropriately qualified engineer. In those circumstances I do not think the proposed condition is reasonable. In light of the undertaking provided, I do not consider it appropriate to impose (a).

(b)The defendants shall actively monitor the noise and vibration emissions around the boundary of the development site/s.

[64]   In order to give effect to the essential purpose of an interim injunction, monitoring of noise and vibration is appropriate. I consider (b) to be reasonable and necessary.

(c)The defendants shall make all monitoring information immediately available to the plaintiff upon request.

[65]   It is appropriate that the plaintiff should have access to all monitoring information. I am satisfied (c) is reasonable and necessary.

(d)If the defendants’ monitoring identifies the vibration levels emitted from the development works exceed 5 mm/s, the defendants will immediately cease all work until an in-filled cutoff trench (or equivalent vibration minimisation measure) is constructed in accordance with a geotechnical engineer's advice.

[66]   Very little evidence has been offered as regards vibration levels. Dr Matthews opines that vibrations can adversely affect normal behaviour patterns in poultry. I am satisfied that vibrations emanating from the first defendant’s first development site may  be,  in  part,  responsible  for  the  behaviours  identified  by  Mr   Hewitson.  Dr Matthews did not propose any particular level at which chickens might be particularly susceptible to vibration. Mr Finnemore’s testing confirmed that the vibration levels were almost exclusively below 2 mm/s other than for a brief period on the first day of testing.

[67]   The defendants will be measuring vibration levels. Notwithstanding the scarcity of evidence regarding appropriate levels, I accept that work should not proceed if the vibration level exceeds 5 mm/s. Rather than require the defendants to construct an in-filled cutoff trench or equivalent vibration minimisation measure (matters with which I infer there is an engineering dispute as to appropriateness), I am satisfied that imposing a vibration level restriction of 5 mm/s is appropriate, unless otherwise agreed by the plaintiff.

(e)The defendants may carry out any development work that emits significant noise and vibrations (above 2mm/s for vibration and 50db for noise) from 9 am—2.30 pm and 5 pm—7 pm daily.

[68]   The hours proposed reflect Mr Hewitson’s evidence as regards feeding times for the chickens. Mr Holgate suggests that Mr Hewitson ought to be flexible and possibly adjust the feeding patterns of the chickens. I am not satisfied that for the reasonably short timeframe in which the earthworks will be carried out that is reasonable. In my view, the operating hours as proposed by the plaintiff are reasonable.

[69]   As I have outlined above, some curtailment of the defendant’s operations that might prolong the earthworks or add cost is a tolerable consequence.

(f)The defendants shall restrict all work that emits significant noise and vibrations (above 2mm/s for vibration and 50db for noise) to no more than 150 minutes within any period of 24 hours, and for consecutively no more than half an hour at a time with an hour break between periods of significant noise or vibration.

[70]   Mr Holgate takes issue with any limitations on construction work that exceeds 50 dB and observes that the District Plan for any residential 1 area allows for an average noise level of 55 dB and for a 70 dB noise level on a construction site during daylight hours. He suggests that it is inevitable that the 47-lot residential subdivision will be producing more than 50 dB of noise permanently and that the plaintiff should therefore be taking steps to ameliorate that inevitability. There is merit in Mr Holgate’s position, but for present purposes there is a developing crisis that needs to be urgently addressed.

[71]   The plaintiff does not seek to prohibit the first defendant from engaging in works that emit significant noise and vibrations, rather the plaintiff proposes limiting such emission. I am satisfied that the proposed restrictions are reasonable and necessary and will not have significant adverse consequences for the first defendant.

(g)Operate vibration-generating equipment as far from the plaintiff's farm as possible and phase construction stages so vibration-generating activities do not occur at the same time.

[72]   I consider this condition to align with the other conditions I have found ought to be imposed.

(h)Share unredacted development plans with the plaintiff and advise them of any amendments to such plans at the soonest available opportunity but always prior to work commencing.

[73]   The defendant has no issue sharing the development plans. I agree that the plaintiff should be required to provide an undertaking to hold such material as confidential, not to be shared with any third parties, other than with the approval of the defendants.

(i)Do everything reasonably practicable to reduce noise and vibrations emitted from the development works.

[74]   Although I have issues as regards enforceability, I agree this condition captures the essence of the purpose of the conditions of the interim injunction.

(j)The defendants shall place a sign at the site entrance/s notifying visitors that noise and vibration monitoring is in progress. The sign must also direct visitors to minimise noise and vibration and to report to the person nominated by the defendants before commencing work.

[75]   Again, I consider this condition to be sensible and appropriate and will achieve the desired outcome of reduced noise and vibrations.

[76]   I am satisfied those restrictions limit the interim injunction to what is necessary to avoid or prevent the nuisance without requiring the first defendants to desist the development.

Second development site

[77]   As regards the second defendant, I am not satisfied that an interim injunction should issue. Mr Holgate confirmed that the second defendant presently has no concrete plans to commence a development on that site. Mr Holgate anticipates little

difficulty in the defendant agreeing to provide an undertaking to give ample notice to the plaintiff in the event that development on that site was to commence. In my view, that issue is appropriately dealt with in that manner. The plaintiff has not established good grounds for the making of an interim injunction.

Result

[78]   I make an order that in carrying out earthworks at the first development site, the first defendant:

(a)shall actively monitor the noise and vibration emissions around the boundary of the first development site;

(b)shall make all monitoring information immediately available to the plaintiff upon request;

(c)shall, if the defendant’s monitoring identifies the vibration levels emitted from the first development site works to exceed 5 mm/s, immediately cease all work unless approved by the plaintiff;

(d)may carry out any developmental work on the first development site that emits significant noise and vibrations (above 2 mm/s for vibration and 50 dB for noise) from 9 am—2.30 pm and 5 pm—7 pm daily;

(e)shall restrict all work that emits significant noise and vibrations (above 2 mm/s for vibration and 50 dB for noise) to no more than 150 minutes within any period of 24 hours, and for consecutively no more than half an hour at a time with an hour break between periods of significant noise or vibration;

(f)shall operate vibration/generating equipment as far from the plaintiff’s farm as possible and phase construction stages so vibration/generating activities do not occur at the same time;

(g)shall share unreacted development plans with the plaintiff and advise them of any amendments to such plans at the soonest available opportunity but always prior to work commencing, provided the plaintiff provides an undertaking as to confidentiality of such information;

(h)shall do everything reasonably practicable to reduce noise and vibrations emitted from the development works;

(i)shall place a sign at the site entrance/s notifying visitors that noise and vibration monitoring is in progress. The sign must direct visitors to minimise noise and vibration and to report to the person nominated by the first defendant before commencing work.

[79]   Leave is granted to either party to apply on two days’ notice to vary the terms of the interim order.

...................................................

Eaton J

Solicitors:

AWS Legal, Invercargill

Counsel:
A P Holgate, Barrister, Whangarei