Reverse Sensitivity

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Reverse Sensitivity: Issues and Mechanisms to address Cross-Boundary Effects

David McGregor, Senior PartnerMarija Batistich, Senior Associate

Bell Gully

Resource Management Law Association Conference – October 2007


Reverse sensitivityReverse sensitivity• Definition:

“Reverse sensitivity is the legal vulnerability of an established activity to complaint from a new land use”.

(Pardy et al, 1999).


Reverse sensitivityReverse sensitivity

• Courts recognise the “corrosive effect” complaints can have on operations – Winstone Aggregates v Matamata-Piako DC

• Internalise effects if reasonable to do so – Winstone Aggregates


The wine industryThe wine industry• Illustrates tension with lifestyle development in rural zone• Romantic vision v working rural environment

• bird scaring devices• helicopters and fans• harvesting

• Fraser Shingle – rare qualities of soils protected• Use of mitigation measures (Isola Estates Ltd v Auckland CC;

Upper Clutha Environmental Society v Queenstown Lakes DC)• Incompatibility with rural zoning (Calapashi Holdings v

Marlborough DC)


Other industriesOther industriesHorticulture and agriculture

• Loss of productive land• Adverse effects• Spray drift (McQueen v Waikato DC)• Odours (Sugrue v Sadler; Waikato Environmental

Protection Society Inc v Waikato RC)

Quarries• National strategic significance (Winstone Aggregates;

Golden Bay Cement Ltd v Whangarei DC)• Highly vulnerable to reverse sensitivity claims


Transport and port activitiesTransport and port activities• Encroaching intensive residential development threatens to

limit activities

• Contrast in approach – Garguilo v Christchurch CC versus Wellington International Airport v Wellington CC

• Auckland and Lyttelton Ports• no complaints covenants• sound proofing

• Transit New Zealand


EnergyEnergy

• Challenges to Puketiro wind farm

• Unison Network Ltd v Hawkes Bay Wind Farm Ltd

• Opportunity for strategic guidance at national level


Effects of urban growthEffects of urban growth• Urban intensification vs expansion

• Pressure to extend metropolitan urban limits

• Urban activities? (Roman Catholic Diocese of Auckland and Franklin DC)


Mechanisms to address reverse sensitivityMechanisms to address reverse sensitivityPrivate mechanisms: no complaints covenants• Registrable restrictive covenant that runs with the land that must

contain a negative pledge• The negative pledge normally is in respect of

• acknowledgement of lawfully established activity• pledge not to complain in respect of that activity• constraints upon seeking changes• dispute resolution (optional)

• Some resistance in respect of their provision in terms of district plans

• Private property right - not favoured exclusively (Calapashi Holdings Ltd v Marlborough DC W045/04)

• Emerging common voluntary mechanism


Regional and local planning mechanismsRegional and local planning mechanisms• Regional planning documents – MUL• Territorial authorities:

• LIMs/PIMs – notice to potential purchasers:• e.g. statement that rural zone is a productive working area where

agricultural management (or similar) practices occur• in Hastings District Plan where site within 400m of intensive rural

production activity the LIM will state effects from existing activity may adversely affect site

• Planning mechanisms• Development controls e.g. buffer zones

• 30m noise and spray drift contour• Specific zoning provisions e.g. special character zones

• Te Mata Special Character Zone• Case examples:

– Marlborough Downs– Anthem Village


Extract from Hastings District PlanExtract from Hastings District Plan


Extract from Anthem Ventures Ltd v Queenstown Lakes District CouncilExtract from Anthem Ventures Ltd v Queenstown Lakes District Council


National guidanceNational guidance• Non-statutory mechanisms such as national guidance

notes for industry sectors

• Guidance Note on Planning for the Wine Industry (http://www.qualityplanning.org.nz/plan-topics/wine-industry.php)

• Guidance note the result of collaboration between New Zealand Winegrowers, Ministry for the Environment, Local Government New Zealand, and representatives of councils in winemaking areas


ConclusionsConclusions• Reverse sensitivity must be effectively managed

• Impacts on a wide range of industries and sectors

• May use a combination of mechanisms may be used at private, local, regional and national levels to address concerns.

Business

Reverse Sensitivity