Vineyard gas gun disturbs neighbours, but not the council

A vineyard gas gun bird scarer is exercising, annoying and upsetting a vineyard’s neighbours on Ferry Road – with one council official recommending they consider private legal action in the absence of council enforcing its gas gun rules.

“Her (Council CEO Janice Smith) officers seem to be shielding the growers around Martinborough,” an exasperated Hilton Doherty told The Star, responding to an article (OK Boomer: it’s bird scarer time) in the March edition. 

That item noted: “the clincher: how to lodge a noise complaint so council’s environmental health and noise control staffers can be alerted.”

Doherty has been doing that for two years, while another neighbour wrote to the council to raise “the issue of excessive gas gun use back in January 2022 with Rick (Mead, manager environmental services), and agree with Hilton about the disappointing response from SWDC about this on-going issue.” 

Disappointing is not quite the word Doherty or his wife Margaret use as they explain the on-going gas explosions from the vineyard less than 200 meters from their home.

Margaret’s detailed “daily incident notes” show one event, on Sunday, March 3, when the gun fired off 24 shots in 18 minutes between 7:10 p.m. – 7:28 p.m. at levels between 88dBa – 93dB (decibels). 

“We had 24 shots in 18 minutes,” she repeats. “When it (the gun sound level) is above 65dB  somebody is flouting the law – and somebody (the council) is doing nothing about it. If there’s a rule, people should follow it: 65dB should be 65dB.”

Adds Hilton: “They (council) have said they’re not going to do anything about it.”

The upper limit of 65dB for most noise levels is standard across the region under the Wairarapa Combined District Plan.    

The gun noise is affecting up to nine neighbours in the immediate Ferry Road area, though only three households are full-time residents.

“One neighbour (name withheld), has one of her two dogs are on tranquillisers because it’s so nervy,” Hilton said. 

The neighbour “has to leave the property for extended periods because the dogs are so distressed.

“One elected council official member heard the shots in his home while talking to Margaret on the phone,” he adds.

American owners Barnes and Paul, who have a vineyard “across the road here also use the gun _ in an acceptable manner,” he noted.

“All we want is the council to implement (their own) best practice (rules on their website: https://swdc.govt.nz/bird-scarers/Audible Bird Deterrents). “Other people are using the guns in an acceptable manner. At Palliser (when they used the guns) we could hardly hear it,” Hilton added. 

Margaret points to her tupuna/elders: “Sixty years ago my grandparents were wine growers _ and they stopped using bird guns once they began netting (the vines). These days you wouldn’t expect people to have (bird-scarer) guns,” as well as netting. “The council just has to enforce best practice, that’s all _ stick to 65dB,” she said. 

The lack of council action is one of the most annoying issues for the couple.

“The council has done only one recording with a physical machine _ in early 2023. (They) only had a test of one gun in 2023 and they acknowledged it (the sound) was above the limit,” Hilton said.

“From 8:00 in the morning till 3:00 (p.m.) they’re (the explosions) are at a reasonable level. They (council) don’t check at 0600 or 8:00 (p.m.) when he ramps it up. It’s never the same all through the day. He ramps it up in the evening,” he added.

The couple think the council is ducking its responsibilies by having gas gun guidance on its website which the council then claims it cannot enforce.

“They say the rules on their website are only ‘best practice’ and not enforceable as they are not part of the Wairarapa Combined District Plan,” Hilton said. 

The Resource Management Act notes people should use their “best endeavours” (a legal term) to observe the bylaws. 

A Bell Gully legal report to growers on the issue is quite clear: the council must enforce best practice. It advises: “Best practice notes are legally binding and enforceable.”

“Elected councillors need to show leadership,” Hilton insisted, “or else they are neglecting their responsibilities.”

He noted that if the gun was located on the vineyard’s northern boundary where there are no residents, “it would be at least 300 metres away.” But it’s placed within metres of the southern fence-line and less than 200 metres from the Doherty house. 

(Continued P4)

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^2nd item:

Council says gas gun no Plan breach, so “lawyer up” – April 2024

The partial email trail between a group of Martinborough’s Ferry Road residents and South Wairarapa District Council staff is enlightening.

Nowhere do the staff tell residents that council accepts responsibility for resolving the vexing issue which the gas-gunned residents endure _ with some shots happening many times daily.  

Instead, CEO Janice Smith advises them to “lawyer up” at their own expense: the council won’t take the matter further.

Email exchanges: 

May 10 2023 to Rick Mead, former manager environmental services from resident Katie Jones: 

I have also seen the gas gun on the property … in the last two weeks, the last sighting was this Sunday (7th May). The last sound event I heard was yesterday morning, between 10 a.m. to 11.a.m. I was walking my dog down Ferry Road and during this time heard at least 3x sound events coming from the direction of the vineyard . These were sets of 3 shots in a row, and I did not consider them to be from duck hunters. 

10 May 2023 to Hilton Doherty from council officer Rick Mead: 

Morning Mr Doherty, we investigated complaint made about the gas cannon, our information differs from your position and I am satisfied what my officer has reported. As to any claim of firearm breach that is not a matter I will be investigating.

21 January 2024  to Council CEO Janice Smith from Hilton Doherty:

Gun operating continuously from January until after harvest, operating with noise in excess of 65 decibels, (95+ dB on our outdoor living area), operating with nets in place, operating in excess of 10 hours per day, exceeding six sound events per hour, operating canon before dawn and after dusk, locating canon on boundary next to drive/pedestrian access, placing canon within 100 metres of adjacent dwellings. 

We can only express our disappointment and frustration to SWDC’s lack of effective action on complaints during 2023…. E-mails to council seemed to fall into a black hole, we got no response, not even a courtesy of acknowledgement.

The … vineyard refuse to discuss the operation of the gas canon with us, and other residents.

30 January 2024 to CEO Janice Smith and Russell O’Leary from Hilton Doherty:
Gas canon op began Sunday 28/01. The gas canon is located on the western boundary of (the vineyard) within 3 metres of a notional boundary with an adjacent property containing a residence, is on immediately adjacent an access/pedestrian path with people potentially exposed to the noise and as such is a health and safety issue. The gas canon positioning is within 180 metres of our boundary: Measurements with reference to the Wairarapa Combined District Plan indicate excessive noise levels can occur when gas guns are located less than 300 metres from noise sensitive sites.

01 February 2024 to Hilton Doherty from Russell O’Leary

Hello Hilton. Thank you for your recent complaint enquiries regarding the operation and noise generated from gas canons at several vineyard properties, including your further email received today. Please be advised that our officers are investigating the matters in respect to noise levels, operations, the sites you have mentioned, including (the) vineyard. We will advise further upon completion of the related site noise investigation work.

05 February 2024 to McEwan and Smith from Doherty 

I am somewhat perturbed re a telephone discussion with Mr McEwan this afternoon, who advised … that Mr O’Leary will contact me later in the week. That is fine except the bird scaring device has been operating since 6:23 a.m. at sounds in excess of 65dB. I am happy to wait for Mr O’Leary to contact me but made the request to Mr McEwan that the bird scaring device … be turned off (as he also has nets in place) until that occurs.

09 February 2024 to Smith from Doherty 

Sound recording from our patio today 85dB. Gun has been operating since 7:23 a.m. That’s 7 hours. SWDC states gun should only be operated for a max of 4 hours per day. 

08 February 2024 to Mayor Martin Connelly from Ferry Road’s Lucy Taylor  

I write to you in relation to some very concerning noise issues that we have experienced over the last 6-12 months in the Martinborough area…. Calls to the council on this issue have achieved little to no action by local representatives. 

We have experienced significant noise pollution as a result of gas guns used to disrupt birds, in order to protect local grape crops. We have a reasonable level of understanding of the rules that should be adhered to in relation to this process; to be clear we fully support this process when said rules are duly followed, but it is our belief that there is an individual or individuals choosing not to abide by these parameters, even going so far as to actively antagonize and intimidate the local community. 

08 March 2024 from CEO Janice Smith to Hilton Doherty, Lucy Taylor  

The rules that apply are: The Combined Wairarapa District Plan states that bird-scaring devices can be used between sunrise and sunset as long as their use does not exceed the permitted level of 65dBA.  

Comments have been made about the content of the SWDC website in relation to bird scarers. The information on the SWDC website relating to the use of gas cannons or other tools to scare birds is an indication of best practice. They are not “rules” but suggestions for users to consider that go above and beyond the Wairarapa Combined District Plan requirements. They are not enforceable in terms of infringement as they are not the position in the Wairarapa Combined District Plan. 

I understand that you feel that the role of my officers is to infringe your neighbours but that is not possible if they are not breaching the requirements of the Combined Wairarapa District Plan. If (you) feel that your neighbours are going beyond the enforceable rules, I suggest you talk to them directly. 

Any action you consider necessary would need to be taken as a civil action either by yourself, or through appropriate legal representation, against your neighbours. I know this will not be the response you were hoping for but this advice is consistent with that given to others in your situation.  Kind regards Janice Smith. 

(Box/panel)

Decibels can irritate or damage – April 2024

Sound is measured in units called decibels. The decibel (dB) is a logarithic unit used to measure sound levels. 

A whisper is about 30 dB, normal conversation is about 60 dB, and a motorcycle engine runs at about 95 dB.

Residential limits usually start at 55 or 60 dB. While sounds at or below 70 dB are generally safe, any noise level exceeding 70 dB is considered disturbing. 

Noise above 70 dB over a prolonged period of time may start to damage your hearing. 

Long or repeated exposure to sounds at or above 85dB can cause hearing loss. Loud noise above 120 dB can cause immediate harm to your ears. 

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(Box/panel)

Bell Gully’s “Winegrowers’ Legal Guide” advice to growers: 

“Under the RMA, there is a general duty imposed on every occupier of land to ensure that the emission of noise does not exceed a reasonable level. Compliance with a rule in a district plan or reference to general standards does not necessarily ensure compliance with this duty.
The council can issue an abatement notice requiring vineyard owners to adopt the “best practicable” option to ensure the emission of noise does not exceed a reasonable level. 

The council can also issue an excessive noise direction requiring that the noise be immediately reduced to a reasonable level.”

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