Cable Bay Wine tried to argue an acoustic expert who captured excessive noise readings did so on the vineyard’s own land and was therefore trespassing, so the evidence should be thrown out.
However a judge dismissed the argument and upheld the charge, ruling the offence was “serious” in terms of effects on the vineyard’s neighbours and the environment.
The decision relates to an earlier case in which Cable Bay Wine was acquitted after successfully blaming excessive noise readings at the vineyard on “chirping crickets” and ambient noise from passing aircraft.
This month’s finding of guilt is the latest development in a “torturous” legal battle between Cable Bay, its wealthy neighbours and council enforcement staff that has dragged on for more than six years.
The lengthy legal dust-up has cost ratepayers hundreds of thousands of dollars in enforcement action and legal fees, seen the winery ordered to pay nearly $500,000 in costs, and lined the pockets of numerous expert consultants and environmental management lawyers.
And it appears the saga is not over yet. The vineyard – owned by wealthy Greek businessman Loukas Petrou – indicated it will now seek costs from Auckland Council and is considering whether to lodge yet another appeal.
The council charged Cable Bay in August 2018 with three separate breaches of the Resource Management Act relating to excessive noise readings captured in February, March and June of that year.
But when the case went to trial in May 2021, Judge David Kirkpatrick immediately dismissed two of the charges after ruling the noise measurements were not taken from a separate property to the vineyard – as required under the act.
The vineyard and a duty manager were found not guilty on the remaining charge after a noise control officer admitted accidentally deleting crucial evidence and questions emerged about the level of ambient noise in the area.
Cable Bay Vineyards owner Loukas Petrou, with Caroline Petrou, at the Metro Top 50 Restaurants function in Auckland in April 2013. Photo / Norrie Montgomery
After the council appealed, the High Court upheld the 2021 acquittal but ruled Judge Kirkpatrick had erred in dismissing the two initial charges, and ordered a rehearing.
One of those charges was subsequently dropped and Cable Bay defended the remaining noise breach charge at a trial in September last year.
In a just-released decision, Judge Kirkpatrick found Cable Bay was guilty of emitting noise in breach of the 45-decibel limit from its restaurant and bar on June 23, 2018.
The decision drew on his earlier 2021 findings, expert evidence and submissions from lawyers.
The judge ruled noise measurement data captured by acoustics expert Jon Styles from the edge of a neighbour’s leased property was properly obtained and admissible under the Evidence Act.
Vineyard lawyers had argued the neighbour’s property was part of the same freehold title as the vineyard and was therefore not “another lot” as required under the winery’s resource consent conditions when assessing a potential noise breach.
The lawyers also argued it was likely the noise readings were wrongly taken inside the vineyard’s boundary and should therefore be inadmissible.
Cable Bay Winery is located in Oneroa on Waiheke Island.
It was also claimed that if they had been taken on the vineyard’s land, Styles had been trespassing and the measurements were therefore obtained illegally.
However, the council argued the neighbour’s property was distinct from the vineyard and that any error in the location of Styles’ recording was made in good faith, was not material to the case and insignificant compared to the seriousness of the consent breach.
An offence under the Trespass Act only applied if the person had been warned by the occupier and wilfully refused to leave, which was not the case here.
The judge sided with the council, ruling that: “Mr Styles did not fail to keep outside the property of Cable Bay Wine deliberately, recklessly or in bad faith.”
Any failure was due to his lack of knowledge of the actual location of the boundary.
The judge agreed there had been no warning given to Styles about any potential trespass on vineyard land so he was not in breach of the Trespass Act.
Given the seriousness of the noise breach offence compared to the nature of any intrusion to the defendant’s rights, “I conclude that the exclusion of the evidence obtained by Mr Styles would be disproportionate to the improprieties alleged by the defendant”.
The vineyard was found guilty and will now face sentencing and a fine of up to $600,000.
A landmark noise-related prosecution against Cable Bay involving "chirping crickets" was thrown out in 2021 after crucial evidence was accidentally deleted.
Auckland Council acting compliance manager David Pawson said the case “has been a long road”.
“But we are pleased with the court’s decision in finding the company guilty following the trial. This is a positive outcome for noise enforcement, and we hope it will help to have a deterrent effect on future RMA breaches of this nature.”
Cable Bay Wine lawyer Karenza de Silva said the vineyard planned to seek costs in relation to the two charges on which the council failed to secure convictions.
She declined to say how much would be sought in costs.
Asked whether the company planned to appeal the latest finding, de Silva said: “Cable Bay Wine Ltd is currently reviewing the decision on the 23 June 2018 charge.”
