Dog breeder miffed at judge's remarks

A former Hawke's Bay dog breeder, ordered to get rid of nearly all his 135 dogs, is angry a judge referred to him as self-centred and controlling.

Last year, the Environment Court ordered David Balfour to scale back his dog breeding operation at Waipawa to just 10 dogs.

That followed complaints about noise and a Central Hawke's Bay District Council application to the court.

Mr Balfour has since moved his kennels out of Hawke's Bay.

In the High Court at Wellington yesterday, Mr Balfour, and Neil Moir and Kirsty Reid, argued that Judge Laurie Newhook in the Environment Court had made comments that were unfair and "hardly impartial".

Although Mr Balfour had now moved and there was little material benefit in appealing against the ruling, his reputation had suffered immensely as a result of the adverse comments about him in the judgment - Judge Newhook called him self-centred and controlling.

The judge found Mr Balfour's evidence "peppered with a haughtiness, even arrogance".

Mr Balfour said that judgment was "way beyond" what was required. He didn't argue that the dogs made noise.

"We knew dogs barked; it goes with the territory."

He said the judge was wrong to order him to bring the numbers of dogs he had back to 10 - a number the judge had based on an average number of farm dogs.

Mr Balfour said an expert sound witness in the Environment Court had not been able to tell whether it was 10, 20, 50, or over 100 dogs that were barking at any one time.

Instead of imposing a maximum number of dogs, it should only have been a "peak" volume level.

He said he had first received resource consent in 1983 for 40 dogs and in 1992 the council had removed the numerical limit altogether. A district plan change in 2003 had made kennels a permitted activity and Mr Balfour believed he had existing use rights.

He said the Environment Court had made an unfair decision.

"Our resource consent was in effect cancelled on top of our existing use rights ignored."

He also said the most immediate neighbour who had complained about the noise had built the house hard up against the boundary 12 years after the kennels had opened.

The district council chose not to appear on the appeal questions and instead court-appointed lawyer Matthew Sherwood King said the Environment Court ruling was correct. He said the court had visited both the kennels and the neighbours and found the noise overwhelming.

"The Environment Court could not establish what the existing use rights were and as it was entitled to do based its findings on the unreasonableness of the noise emanating."

He said the court had not found Mr Balfour's neighbours were hyper-sensitive.

"Quite the contrary."

It was not reasonable to measure the unreasonableness of the noise on solely a peak level.

"We have an enterprise that has exploded [in scale] over the years. Dogs barking all hours of day and night, owners shouting at them."

Council lawyer Bruce Gilmour, appearing only on the question of costs, said Mr Balfour and his co-appellants had refused to take responsibility for lowering the noise.

Justice Forrie Miller reserved his decision.

- NZPA