A landmark noise prosecution against one of the country’s top vineyards has failed, with a judge ruling the accidental deletion of crucial evidence by Auckland Council torpedoed the case.
The council charged Waiheke Island’s Cable Bay Wine Ltd and duty manager Matteo Cozzolino with breaching the Resource Management Act, and sought convictions and a fine of up $600,000.
It is believed to be the first time a local authority has taken a noise prosecution case to trial.
At a hearing in May it argued “bass-dominant” noise from a function at the swanky winery breached allowable noise limits at a neighbour’s boundary on a summer’s night in 2018.
But the vineyard’s lawyer attacked the accuracy of council evidence and argued ambient noise from rowdy crickets and passing aircraft may have been responsible for the din.
The hearing heard that Cable Bay Vineyard had a long history of noise and consenting problems, with multiple prosecutions, abatement notices and enforcement orders handed down over the years.
In a just-released finding, Judge David Kirkpatrick ruled the council had failed to prove the latest charge beyond reasonable doubt.
Senior compliance officer Jacob Faafua had visited the property about 9.30pm on February 9, 2018, after a noise complaint was received, the decision says.
He set up a noise monitoring terminal (NMT) and began recording.
Faafua told the court he could hear “slight” cricket noise, but assessed music from a live band at Cable Bay’s function centre as “excessive”.
Monitoring later found the noise had reached 44.6 decibels, the court heard – nearly 10 decibels over the allowable limit.
Faafua then served Cozzolino with an excessive noise direction before departing from the island.
But after filing a report on his recorded measurements the next day, the electronic noise file “was accidentally lost”.
“As a consequence, it has not been possible for anyone to undertake any analysis of the data in that file,” Judge Kirkpatrick wrote.
The judge said the prosecution relied principally on Faafua’s evidence, and claims that his recorded noise measurement “was corroborated” by data from another NMT installed on Cable Bay’s boundary.
Council lawyer Stephen Quinn argued the deletion of Faafua’s audio recording did not undermine the accuracy of his measurements.
A 5 decibel “adjustment” had been made to take into account the potential presence of cricket noise, Quinn said.
However Cable Bay’s lawyer Karenza de Silva said the noise file deletion meant it could not be independently verified by the winery’s own experts.
The deletion also made it impossible to determine “the contribution of the crickets”, she told the court, arguing that council officers made such basic failures when gathering evidence that the prosecution was doomed to fail.
Judge Kirkpatrick ruled that adjustments made by Faafua to the recorded sound measurements were not done to a standard that met the test of “proof beyond reasonable doubt” required in a criminal prosecution.
“Even more significant” was the sound file deletion.
It meant it was impossible for the recorded noise levels to be confirmed “or for the data to be processed to determine the effects of other sounds, such as the noise of crickets, on the measured level”.
This raised a reasonable doubt as to whether Faafua’s 44.6 decibel reading “accurately represented” the noise emitted by Cable Bay.
“It is accordingly insufficient to be the basis for convicting the defendants.”
Vineyard owner Loukas Petrou said the case had been stressful, expensive and unnecessary.
He was pleased with the decision and keen to move on.
He added that “natural” nighttime noise at the site had been measured on the council’s own recording devices as louder than noise generated by Cable Bay.
“Cable Bay has always been and will always be respectful of its neighbours, surrounding environment and the community because this is part of our DNA.”
Auckland Council regulatory response and compliance manager Kerri Fergusson said the council had successfully prosecuted the vineyard three time for helicopter movements, resulting in convictions and fines.
“We acknowledge that the loss of evidence in this, or any case is disappointing and have since reviewed processes to ensure this does not happen again.”
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