Clearing the Air: Managing air quality and land use conflicts

Whether it be odour management or reduction of noxious emissions, air quality control is an on-going issue for New Zealand businesses across the industry spectrum. Recent rulings, such as Craddock Farms’ consent defeat and the ruling on odours emanating from Te Mata Mushroom Company’s Havelock North factory, resulting in a $15,000 fine and an enforcement order to submit a new draft resource consent application, are the latest in a string of odour-related complaints being brought before New Zealand Environment Courts.

A timely presentation by air quality experts Jenny Simpson and Jason Pene from Tonkin+Taylor at Chapman Tripp’s Auckland offices on April 27, was therefore well received by RMLA Auckland members. The Tonkin+Taylor team provided a succinct update on recent court decisions and key issues that both contribute to, and resolve, air quality issues in New Zealand.

Fe Fi Fo Fum…

The presentation tackled the issue of air quality control from two divergent angles; olfactory and health. As Jenny Simpson pointed out, odour is a human sensory response, not a contaminant. Nevertheless, it is regulated under RMA as if it were, which means that odour-generating activities, as demonstrated by the Te Mata Mushroom Company, do require resource and land use consents.

Providing a bite-sized appraisal of current practice, she explained that in order to determine whether an odour amounts to an offence, the FIDOL (Frequency, Intensity, Duration, Odour character, Location) assessment is deployed. In short, there should be no objectionable offensive odour, nor should it have a significant adverse effect on local residents. The FIDOL factors help inform whether the odour is acute (a one-off extreme event); or chronic (a persistent objectionable odour).

Location, location

Location is often a key factor determining the offensiveness of an operations’ odour impact. The more people in the vicinity of a factory, farm or landfill, the higher the likelihood that someone will find its odours offensive. Rural areas on the other hand, present a peculiar contradiction in that sensitivity can be high due to rural activity and dwellings, yet low due to lack of inhabitants.

The conundrum, says Jenny, is that the impact of an odour is often subjective: some may find a certain odour pleasant, where others find it objectionable. The rule of thumb for determining whether an odour is offensive, is that all five FIDOL factors must be considered together, not just the intensity of odour. Yet recent court rulings have demonstrated that this is not always the case.

Beyond reasonable expectation?

Judge Smith, who presided over the Puke Coal case (a proposed new landfill), agreed with a statement from a witness that if the intensity of the landfill odour exceeded more than 3 on a 1 – 6 scale, it is considered to be offensive.

In the Craddock Farms case, a factor lending itself to the final ruling against consenting was the odour of hundreds of thousands of caged chickens.  Within his summary, Judge Thompson noted that intensive farming is not a normal rural activity – that the odour from caging 310,000 chickens is not a typical rural-type odour; and that the sensitivity of other rural workers such as early morning carrot pickers, in terms of their expectation of an odour-free working environment, needed to be considered.

Basic instinct

The FIDOL criteria have often been criticised for being too subjective. But in reality, these assessments are representative of an ordinary, reasonable person’s expectation, explained Jenny Simpson. “The majority of cases show a pattern that the FIDOL method works, by yielding repeatable results”, she said.

While the Ministry for Environment’s ‘Good Practice Guide’ is currently under review, there will likely only be a “few tweaks to case law and examples;  we are not expecting any major changes”, she said. When it comes down to it, an offensive odour is hard to miss. As Judge Thompson famously pointed out: “[offensive odour] is perhaps somewhat like pornography – you will know it when you see it – or in this case, smell it!”

Pain in the…

Tackling the issue of air quality from a different angle, Jason Pene addressed the issue of health impacts of noxious emissions. “Thousands die prematurely as a direct result of air pollution in New Zealand. Air pollution is the most significant environmental risk in developed countries and therefore needs to be carefully managed,” he advised.

Air pollution can come from variety of land use sectors and the management of emissions from each sector varies. A key stumbling block to effective air pollution management derives from disparities in how each sector is managed under the current legislation and regulatory framework, noted Jason.

“The regulatory focus of the current framework is on large individual discharges, which can cause localised effects, but largely ignores community-wide effects caused by discharges from homes and vehicles across urban areas. A more holistic approach needs to be taken”, he said, explaining that in urban areas, the sources and receptors are often interlinked.

Hazy outlook 

A significant level of air pollution in New Zealand is generated by domestic log fires. With this type of pollution, the home is often both the source of emissions (household fires) and the receptor (householders inhale harmful smoke generated by local households). Similarly, residential areas are often located near or are intersected by major road networks, another significant source of air pollution. The result is that it is often difficult to manage the health effects of air pollution through urban planning and the spatial separation of source and receptor.

Improvements to air quality management in urban areas will require reductions in emissions from the sources – regulation of which can prove tricky. Regulatory restrictions on the use of household fires can engender public opposition, as evidenced by the demise of the 2014 Auckland Council Air Quality bylaw. Additionally, vehicle emissions are regulated outside the RMA and managed separately from emissions from other sectors, potentially resulting in disconnected management.

However, despite these difficulties there are opportunities to improve the management of air pollution-related health effects. Modifications to the National Environmental Standards for Air Quality (scheduled to be reviewed in 2016) could be more effectively focussed on the underlying causes of health effects of air pollution. Development of regional plan rules to more effectively control household fire emissions could be implemented through on-going plan review processes. Additional vehicle emission controls, such as on-going emission testing of vehicles as part of WOF/COF inspections, could improve air quality around roads.

Without changes to the way air quality is managed, the outlook for improved air quality and health in New Zealand continues to be hazy.

RMLA would like to thank Chapman Tripp for kindly hosting this event.