Auckland Council has won the right to appeal a landmark noise prosecution case in which a top Waiheke Island vineyard successfully claimed chirping crickets were responsible for the din.
In what is believed to be the first case of its kind, the council prosecuted Cable Bay Wine Ltd and duty manager Matteo Cozzolino at a two-day District Court trial last year for breaching the Resource Management Act.
The council argued noise generated from the luxury Waiheke vineyard's restaurant and bar on a summer's night in 2018 had breached allowable limits.
But the prosecution failed after a judge ruled that a noise control officer's accidental deletion of crucial sound data recorded on the night had effectively torpedoed the case.
Cable Bay's lawyer had attacked the accuracy of council evidence and argued ambient noise from rowdy crickets and passing aircraft may have been responsible for the breach.
Two other charges had also been laid relating to separate alleged noise breaches at the vineyard - on March 3 2018 and June 23 2018.
However, those charges were dropped at the beginning of last year's trial after the judge ruled the noise measurements had been recorded on a neighbour's leasehold property which sat within the same general site as the vineyard, and were therefore insufficient to prove the charges.
The council appealed against the rulings at a High Court hearing in November. Its lawyer Stephen Quinn argued the District Court judge was wrong to dismiss the two additional charges, because the neighbour's property was a distinct site from the noise-emitting vineyard.
He also argued the judge was wrong to determine that the loss of sound recording data meant the third charge could not be proved.
In a judgment handed down last month, Justice Gordon dismissed the council's appeal over the "chirping crickets" charge, saying there had been no error of law.
Evidence submitted at the trial indicated that residual noise measured in the area, even after the vineyard had closed, had remained above the allowable limits for almost the entire night. This had cast doubt on the reliability of sound measurements and the appropriate adjustments needed for background noise.
"The overall sound level would lack the necessary certainty for proof beyond reasonable doubt," Justice Gordon wrote.
However, he upheld the council's appeal against the two dismissed charges, ruling that the neighbour's property where sound recordings were taken was separate to that of the vineyard.
The two charges, against the wine company and duty manager Davide Mazzocchini, will now be sent back for a new trial in the District Court.
If convicted the vineyard could be fined up to $600,000.
Justice Gordon's decision says the council argued it had compliance and enforcement responsibilities to ensure noise was controlled to appropriate levels.
The council appealed the case because it feared enforcement of future noise breaches would be "very challenging, if not impossible" as a result of last year's District Court decision.
In a statement, Auckland Council general manager Licensing and Regulatory Compliance James Hassall said it was inappropriate to comment while the matter was still before the courts.
In a statement through his lawyer, vineyard director Loukas Petrou said his company had been unfairly targeted over noise.
The prosecution was based on a 15-minute noise measurement, records of which had been lost, he said.
The council also failed to investigate why background noise was higher than the allowable noise limit for almost the entire night after Cable Bay shut, despite this being identified as an issue by the Environment Court.
Cable Bay now planned to seek leave to appeal against the High Court decision on the two charges remitted back to the District Court, which were last year withdrawn by the council.
Petrou added that the noise measurements were taken from a leasehold property owned by Cable Bay, despite a council letter saying there were "conflicting legal opinions" about whether such recordings should be taken from the property.
The Herald on Sunday reported that Cable Bay is seeking hundreds of thousands of dollars in legal costs from Auckland Council linked to a protracted Environment Court case relating to noise from its restaurant and bar.
The council says it has already spent several hundred thousand dollars on court proceedings and enforcement action, which has seen the vineyard repeatedly prosecuted and fined for illegal activities.
However, the vineyard says it has been unfairly targeted and that much of the enforcement expenditure has "not been well spent" with only "limited success".