Decision clears way for appeal, mediation

A second Environment Court decision has cleared the way for mediation or the hearing of an appeal over a dispute between neighbours over helicopter flights from a Queenstown billionaire's property.

Tim Roberts was granted consent late last year to operate a helipad from his Malaghans Rd property to give him faster and easier access to two high country stations he owns on the southern side of Lake Wakatipu.

That decision, which allowed Mr Roberts to fly his helicopter to and from the property up to 120 times a year, was immediately appealed to the Environment Court by a neighbour, builder Allister Saville.

Unless the issue can be resolved by mediation this month, Mr Saville's appeal is likely to be heard later this year.

The latest decision is the second of two procedural decisions by Judge Jane Borthwick about legal issues Mr Saville and other parties to the appeal wanted resolved before the mediation or appeal hearing.

Judge Borthwick considered whether the Queenstown Lakes District Council had the ability to consider the effect of noise from a helicopter flying above 500 feet over a rural area when assessing a resource consent application for the use of a helipad.

At a hearing in April, Mr Saville's counsel, James Gardner-Hopkins, said the council had relied on a 2008 High Court decision, known as "Dome Valley'', when assessing Mr Roberts' original application.

The Dome Valley decision found noise effects should not be part of a territorial authority's assessment of such applications.

However, Mr Gardner-Hopkins said the case should not apply because there were no noise emission controls in the district plan of the territorial authority to which it related.

The council's lawyer, Katharine Hockly, said a consenting authority's ability to regulate the effects of noise from aircraft was restricted to aircraft engaged in the "use of land'' - when they were landing or taking off from an airport.

That view was supported by Mr Roberts' counsel, Andrew Beatson, who concluded the effect of noise from overflying aircraft was outside the ambit of the Resource Management Act and the resource consent process.

In her decision, Judge Borthwick said she did not consider the absence of noise emission controls was material to the Dome Valley decision.

That decision determined that an aircraft in flight was a use of land, and subject to the jurisdiction of the Act.

For that reason, the Dome Valley decision could not be put aside, she said.


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