Mayor: Speedway must continue
Moving Auckland Forward
23 December 2004
Mayor: Speedway must continue
The Environment Court has declined to vary or cancel its interim order requiring district plan noise limits to be observed at Western Springs Speedway.
On 6 December, the Court issued an interim enforcement order effectively limiting noise levels at the stadium boundary to 85 decibels (dBA). The court, in a decision this afternoon, says issues need to be resolved at a full hearing.
Auckland’s Mayor, Mr Dick Hubbard, said today it was now up to the speedway promoter to see if it could live within the limits this season, and decide if racing continued.
“We’re disappointed with the court’s decision. We would ask on behalf of the residents of Auckland that Springs Promotions does its very best to complete the season,” Mr Hubbard said.
The city would pursue every option available to make sure speedway continued at the Springs.
“We will have to now work on securing speedway’s future long term. There will be a substantive hearing on the issues at the Environment Court in February. I intend the city should give evidence at that.
“We will continue to work on finding ways to make this work long term for both the speedway and residents. We want a solution which works – and a speedway which is a considerate neighbour,” Mr Hubbard said.
The city had
proposed, in an affidavit presented to the court today and
sworn by Deputy Mayor Dr Bruce Hucker, to work on
- Independent noise monitoring, with the city hiring independent noise experts
- possible changes to the season’s meeting schedules, reducing the impact of events
- undertaking research on international best practice to reduce speedway noise effects, and
- explore possible noise reduction measures, like sound walls.
“I give our commitment to keep those offers on the table, so we can agree a solution, rather than battle only through the courts in a totally adversarial manner.
“Tens of thousands will be disappointed by this decision today. Others will be pleased. We must accept the decision today - then prepare for the substantive case next year, and press for an agreed solution in the meantime. I’ll ensure the city does everything it can on that basis,” Mr Hubbard said.
“I think we should all thank those who’ve come together and done the hard talking in the last week – the Deputy Mayor, speedway proponents and the Western Springs Residents’ Association.”
Editors please note: The court’s decision and Deputy Mayor Dr Bruce Hucker’s affidavit to the court today are attached.
Decision No. A 169/2004
IN THE MATTER of the Resource
Management Act 1991
IN THE MATTER of an application under s320 of the Act for an interim enforcement order
BETWEEN SPRINGS STADIUM RESIDENTS ASSOCIATION
(ENV A 0128/04)
AND SPRINGS PROMOTIONS
AUCKLAND CITY COUNCIL
BEFORE THE ENVIRONMENT COURT
Environment Judge C J Thompson sitting alone pursuant to s279 of the Act
HEARING by teleconference on 23 December 2004
M J E Williams for Springs Stadium Residents Association Incorporated
D A Kirkpatrick and A M Halloran for Springs Promotion Limited
A L Maddox for the Auckland City Council
(i) DECISION ON APPLICATION TO DISCHARGE INTERIM ENFORCEMENT ORDER
 For the reasons then given, I made an interim enforcement order against the first respondent (SPL) on 6 December 2004. In summary, the order required SPL to comply with the noise limits for Speedway racing at Western Springs. Those limits are set in a Concept Plan forming part of the Auckland City (Isthmus) District Plan. The Concept Plan has the force of a Rule of the District Plan. The limits have been in effect since 1 April 1996 but despite many protestations of attempts to do so by the Speedway promoters, they have not been complied with. Nor, until very recently, has the Council made any effectual attempt to enforce them.
 SPL now seeks to have the order varied or discharged. There is a collateral application to abridge the time for hearing the discharge application. Mr Williams opposes that, submitting, with some merit, that the issue now raised by SPL is new, and that his clients have not had sufficient time to prepare a response. However, I think there is public interest in resolving the application, and given the view I have come to about the discharge application, his client Association will not be disadvantaged. SPL says, in short, that it cannot comply with the noise limits and run Speedway in the way it traditionally has: ie with up to 21 cars in each race. It can only comply if the numbers of cars per race is reduced to a point where spectators and participants no longer regard it as real Speedway. It seeks either to have the order discharged altogether, or that the noise limit be raised from 85 to 90dba L10 at the defined measuring points within the Stadium.
 Mr Christopher Day, SPL’s acoustic consultant, expresses the opinion that residents will not notice an appreciable difference between 85dba and 90dba. This does not seem to accord with the views of Mr John Cawley set out in para  of my earlier reasons, and Mr Day does not address that opinion. Mr Cawley’s opinion was that because decibels are measured on a logarithmic scale, a 7dba exceedance would sound 50% louder than the permitted level. That must raise an arguable issue about the ability to make an enforcement order under sections 314 and 319: viz that the noise is …offensive or objectionable to such an extent that it has or is likely to have an adverse effect on the environment.
 In asking for the interim order to be discharged altogether, SPL advises of an arrangement now apparently made between it and the Council. There is, so I am told, a promotion agreement made between those parties, a term of which obliges the first respondent to comply with the terms of the District Plan including, of course, the noise limits. That agreement, and the annual Noise Management Plans which the Speedway has produced might, on the face of it, appear to incorporate a relinquishing of existing use rights. Mr Williams submits that it would. The Council has now agreed to waive that requirement, purportedly to allow SPL to rely upon what it says are its existing use rights (ie to operate at whatever, if any, noise limits previously existed) under s10 of the RMA. Ms Maddox advises me that the terms of that amended agreement are yet to be finalised, but confirms that the desired effect is to allow SPL to rely on whatever existing use rights it may have. Mr Kirkpatrick confirms that SPL wishes to rely upon those right only to the extent of 90dba, a limit it believes it can comply with. Presently though, it seems that the original agreement remains in force, and until it is formally replaced or varied, SPL’s contractual obligation remains.
 I refrain from comment about the Council’s position in coming to such an arrangement for the express purpose of evading the terms of its own District Plan. I imagine persons who, for instance, have arranged their affairs on the basis of what the Plan says may have views that will be aired in due course. But, arguably, there may be a more fundamental issue here. Section 10 speaks of a use that was …lawfully established before the rule became operative. The case law seems clear that one should look at the lawfulness of the use as at the day before the rule became operative. The District Plan, and thus the Rule, became operative in 1999. Mr Stewart’s own evidence makes it clear that the Speedway was not complying with the noise limits (effective, as mentioned, since 1 April 1996) at that time. Indeed he says it has never complied with them. The promotion agreement required, so I am told, compliance with the Plan, not with whatever pre-existing limits there may have been. If that is so, then arguably the Speedway has surrendered its previous position and was not …lawfully established before the rule became operative and has no enforceable existing use to rely upon.
 Even if the situation is not as plain as that, with SPL arguing that it has never lost whatever existing rights it may have had, on an interim basis I really cannot be satisfied about that either way. It requires resolution at a full hearing. Nor can I be satisfied, on an interim basis, about issues of character, intensity and scale. There is enough material before the Court to raise factual questions about that.
 Without the issue of existing use rights to support it, SPL would be asking me to vary the terms of the interim order to provide for a noise limit of 90dba, it would, in effect, be asking me to vary the terms of an operative District Plan without compliance with the Plan Change procedures of the First Schedule to the RMA. As a pragmatic solution to a problem I might have been prepared to go along with the compromise offered by the Residents Association, even though that also involved a very limited extension of the noise limit. But I am not prepared to go so far as to give a blanket extension for all racing on all occasions. I do not consider that to be a proper exercise of judicial discretion – assuming for the purpose of argument that I could make such an order at all.
 I record that SPL rejected the compromise offered by the Association. That would have allowed three races per meeting to go up to 90dba, with testing and monitoring continuing to see if some longer term solution could be found. SPL’s position was that it would rather have nothing than that, so there is little point in me trying to foist it upon them.
 I have to say that I am left, at this stage of knowledge, with an abiding impression that SPL has not been taking its obligations seriously, and that until very recently the Council has tacitly condoned that. Both parties have had 10 years to do something serious about compliance, and it is difficult to have sympathy with their protestations that they are now, suddenly, being told to comply. That is the more so when there is enough in the material before the Court, going back at least as far as 1994, to at least tentatively indicate that compliance is possible. In saying that I record that I have placed little weight on the hearsay material in Mr Caccioppoli’s affidavit. That is the sort of material that really must come from a primary source if the Court is to be asked to rely upon it.
 The present situation is clear enough. The interim order does no more than require SPL to comply with the District Plan (the possibility of existing use right excepted). Indeed the original application was criticised as being pointless because that is really all it sought. If the Council has now collaborated in an arrangement intended to revive existing use rights, the success or otherwise of that can be decided at the substantive hearing. Whether the interim order remains or goes makes little difference to the underlying position.
 If what the respondents really want is to change the relevant terms of the District Plan, then they should do so properly and openly. The public participation process was followed in setting the present limits – the report of the Council’s Commissioner is now before the Court and records a great deal of input from many sources. They should not be changed without an equal opportunity for participation.
 I need not repeat what I said in my earlier reasons about the statutory criteria for making an interim enforcement order. In my view the interim order was justified then, and remains so. The equitable balance remains, in my view, on the side of the Residents Association who have asked for nothing more than that the law be complied with. The change in position arguably brought about by the arrangement between the Council and SPL is just that – arguable. It does not persuade me, on an interim basis, to vary or discharge the order.
 I have reconsidered what I said earlier about costs, and Mr Kirkpatrick has very fairly indicated that they might now be addressed. Any application in respect of this and the earlier applications should be lodged by 21 January 2005, and any response by 28 January 2005.
DATED at Wellington this 23rd day of December 2004
C J Thompson
IN THE ENVIRONMENT COURT
Env A 0128/04
IN THE MATTER of the Resource Management Act 1991
IN THE MATTER of an applications under section 316 and 320 of the Act
BETWEEN SPRINGS STADIUM RESIDENTS ASSOCIATION INCORPORATED
AND SPRINGS PROMOTIONS LIMITED
AND AUCKLAND CITY COUNCIL
AFFIDAVIT OF DR BRUCE MERVYN HUCKER ON BEHALF OF SECOND RESPONDENT IN RELATION TO THE INTERIM ENFORCEMENT ORDER, AND THE SUBSTANTIVE ENFORCEMENT ORDER APPLICATION
SWORN ON THE 23rd DAY OF DECEMBER 2004
W S LOUTIT/A A MADDOX
TELEPHONE: +64-9-358 2222
FACSIMILE: +64-9-307 0331
DX CX10092 PRIVATE BAG 92518
I, Bruce Mervyn Hucker, Deputy Mayor of the Auckland City Council, of Auckland, swear:
I make this affidavit on behalf of the Auckland City Council (the ''Council'') to update the Court on the developments that have occurred since the Court issued the interim enforcement order on 6 December 2004 in relation to speedway activity ("Speedway") conducted by Springs Promotions Limited at Western Springs Stadium (the ''Stadium''). While the detail of the negotiations which have occurred are or course privileged, the Council considers the Court should be made formally aware of their occurrence, and the goals which the Council sought to achieve through the negotiations.
2. THE MEETINGS
2.1 As all the parties directly involved in these proceedings have publicly expressed a desire for the Speedway to continue at the Stadium, the Council sought to bring the parties together to discuss how this may happen. In doing this we were mindful of the Court's interim order.
2.2 Meetings have been held on Friday 17 December and Monday 20 December. I chaired the meetings. The meetings were attended by representatives of the Springs Stadium Residents Association, Springs Promotions Limited, Speedway New Zealand Incorporated, representatives of the drivers who participate in Speedway events at the Stadium, and the Council.
3. THE COUNCIL'S GOALS
3.1 The Council has sought to aid the parties in reaching agreement on how the Speedway may continue to operate, while being a good neighbour to those who reside in the area. In doing so the Council had in mind both short-term and long-term solutions.
3.2 In the short-term, the Council sought a solution based on the following key points:
(a) That Speedway continue during the 2004/2005 season to enable Springs Promotions Limited to undertake a test programme to assess modifications to vehicle exhaust systems;
(b) That during this testing process the Council would undertake independent noise monitoring at trackside (in addition to that provided by the remote monitoring terminal) using an independent noise expert;
(c) That a modification to the schedule of events for the 2004/2005 season be considered to reduce any cumulative noise impacts the Speedway may have on the neighbourhood;
(d) That the Council assist by undertaking research on international best practice in the mitigation of noise effects from Speedway activity; and
(e) That the Council explore possible noise mitigation measures such as sound walls.
3.3 In addition to that short-term solution, the Council had in mind that the information gathered during the testing programme would assist in facilitating longer-terms solutions. The Council sees, as I understand the other parties do, that any long-term solution would see the long-standing Speedway activity at the Stadium continue into the future. The Council considers that as part of any lasting solution the activity must be undertaken in a manner which is consistent with the Speedway being a good neighbour.
4.1 Although the meetings have proven useful in allowing the parties to better understand each others positions, and to make some headway in lessening the difference between them, no joint proposal to resolve the matter was reached.
4.2 The Council remains willing to assist the parties in reaching an agreement that will see fulfilment of their publicly expressed wish that the Speedway continue, while exploring mitigation measures to address the residents noise concerns and fostering a good neighbourly relationship between the presently opposing groups.
Bruce Mervyn Hucker
SWORN at Auckland this 23rd day of December 2004
A Solicitor of the High Court of New Zealand