Legal rights
Planning approvals
Introduction
We explain the complex and confusing world of reverse sensitivity.
Most property owners know they can object to proposed developments that would affect them. But did you realise you can object to new developments on the grounds that the new neighbours might eventually complain about you?
What is reverse sensitivity?
Reverse sensitivity objections can protect existing users from potential complaints from people and businesses who move in to their neighbourhood.
For example, a nightclub may be able to object to apartments being built next door, on the grounds that residents will probably complain about noise from the nightclub.
Another classic rural reverse sensitivity example is a pig farmer objecting to proposed lifestyle blocks over the road.
Reverse sensitivity objections can only be made if the new development needs resource consent. They can result in the proposed development being stopped or modified to reduce the potential for the new neighbours objecting - more sound-proofing, for example. They can also result in 'no-complaints covenants' where the developer forfeits the new neighbours' right to complain about practices on nearby properties.
No-complaints rules
Some developers have agreed to covenants to resolve potential reverse sensitivity problems. Covenants remind buyers that they are living in a noisy or rural area. Some covenants say the property owner cannot make a complaint about any neighbouring activity. These 'no-complaints covenants' have been used in rural areas, around airports and in inner city developments.
But some lawyers and planners are unsure if these covenants have any real legal weight. A covenant cannot remove your rights under the Bill of Rights. The rights of tenants are also unclear. And some planners - and Environment Court judges - note that no-complaint rules do nothing to solve the actual environmental problems being created.
Successful reverse sensitivity objections do not give established businesses a licence to pollute. Councils will consider the type of environment the business is in and whether it's already trying to minimise disturbance to its new neighbours.
Reverse sensitivity cases
Here is our take on a few reverse sensitivity scenarios.
Noisy factory
You've bought your student daughter an apartment on the edge of the city centre near the university. There's a printer over the road and sometimes it works all night. This is disturbing her diligent study habits. Are noisy factories allowed to operate so close to apartments?
Answer: Yes, they often are. Many new apartment buildings have been built in areas zoned for industry or commercial activity. While making too much noise is unacceptable, the acceptable threshold is usually louder in these areas than in the suburbs.
No-complaints covenants
You're considering buying a new lifestyle block. The seller, who farms the property, wants to put a covenant on the title preventing his new neighbours from interfering with his farm work. Can he do that?
Answer: Yes. No-complaints covenants are commonly used to protect existing land use. While these covenants are common, they have not yet been tested in Court.
Development near an airport
You've inherited some land near the airport and want to develop short-term accommodation for flight crews. Who could possibly object to that?
Answer: The airport company could. Controls on land use are common near major airports, and they typically restrict residences and accommodation. The airport could make a reverse sensitivity objection. It may help that you plan temporary accommodation and the development is airport-related, but you may have to make other allowances like additional sound-proofing. Your Council will have more advice.
Workshop versus offices
Peter the panel beater has been working from the same site for 23 years. The new owner of the warehouse next door wants to convert it into offices. Peter has recently installed new ventilation gear but is worried that office workers might object to the smells and noise from his workshop. Can he do anything?
Answer: Yes, quite probably. This is a classic reverse sensitivity case. If the office conversion doesn't need consent, Peter should talk to the new owner. Many developers are willing to discuss details that make their development more saleable. If it needs consent then Peter may be able to oppose the development or require design changes that reduce the potential problem, like windows that don't open. He should talk to his local Council for advice.
Who makes the rules?
Most land in New Zealand is controlled by both a local Council (City or District) and a Regional Council. The local Council's responsibilities include land use planning, and monitoring and controlling noise. Regional Councils' responsibilities include public transport, pollution, flood management and smells. Four unitary Councils combine local and regional responsibilities - they are in Gisborne, Marlborough, Nelson and Tasman.
The Resource Management Act (RMA) defines our planning framework. It essentially requires you to "internalise" nuisance effects like smell, noise or pollution - that is, ensure they don't escape your property. It also specifies ways to object to or support new developments and penalties for breaking the rules. But the RMA accepts that some effects will inevitably spill over your boundaries into the wider environment - it's impossible to contain helicopter noise or pollen, for example. Reverse sensitivity cases acknowledge this and are one way of preventing land use conflicts.
Local rules apply
Different rules apply in different cities, districts and regions. All the cases and information given here is general - the situation with your council may be different. If you need more information on reverse sensitivity or other planning issues, talk to the planners at your local or regional council. You may also need advice from an independent planning consultant or a lawyer specialising in planning issues.
Our view
Covenants are a poor way to address reverse sensitivity problems. They don't solve problems and they haven't been tested in court. There are better ways to balance the needs of existing businesses with the expectations of new neighbours. Noise limits can be set higher in industrial or rural areas and controls can be placed on sensitive activities (like residences) establishing in the area.
Land Information Memorandums (LIMs) can be used to warn newcomers that they live in an industrial area. Existing use rights and consents protect current land uses. For more information about LIMs contact your local council.