An error of law, failure to consult and noise pollution are some of the issues a group of residents presented in court in their fight to stop the relocation of an emergency helicopter service providing more than 1000 life-saving flights a year to the Northland region, but the council claim the noise won’t be their responsibility.

Northland Emergency Services Trust (Nest) is a joint venture with Auckland Rescue and has been operating emergency helicopter flights from Kensington Park in Whangārei for 35 years.

Over time, the service has grown to three helicopters and 40 fulltime staff spread across the bases, launching around 1150 flights per year.

The site has come under significant safety constraints, experiencing difficulties taking off and landing while people are at the popular sports park, an increase in complaints from local residents and the inability of the site to operate two helicopters at the same time.

Nest accepted it was unsustainable to continue to operate from Kensington in the future.

As their lease approached expiry in 2023, Nest made an application to the Whangārei District Council (WDC) to enter into a lease at the Whangārei airport, which was approved and supported at an extraordinary meeting in November 2021.

This decision triggered a battle between Nest, the WDC and residents of the Onerahi peninsula claiming the process to consult the community failed under the Local Government Act, and they took their fight to the High Court to seek a declaration that WDC has a duty under the Resource Management Act to avoid emissions of unreasonable noise.

Under the District Plan, the designated aerodrome exempts “emergency services” from the noise rules. However, they must still comply with noise rules outside of the designated aerodrome.

This week, the community group, known as Save Onerahi From Undue Noise Disturbance (Sound), presented their case to Justice Mathew Downs and alleged the council made the decision to support the move of Nest before gathering evidence of the level of noise and the impact it would have on the community.

“The need for transparency and public consultation, that is what brings this group to bring these proceedings,” their lawyer Katherine Anderson said in opening debates.

Anderson said as part of the council’s attempt to ‘fix up’ its decision in 2021, they reinstated an airport noise committee, a committee the community had been a part of setting up in the early 2000′s to monitor noise impacts.

Sound alleges the reconstituted committee has been fundamentally changed with the removal of an independent chair and a different balance of community participation.

“The committee has been reinstated, but the absence of an independent chair means the council can run that committee as they see fit with poor community participation and membership,” Anderson read from an evidential affidavit.

“The restrictions they worked so hard to achieve in 2003 no longer apply. All of Nest helicopter movements will be exempt from noise restrictions.”

Prior to the 2021 decision, the council held no engagement meetings with either the community or the airport noise committee, yet following their decision, two meetings and one workshop were held, largely driven by Nest.

“At the very least, the airport management committee needed to be involved and engaged [prior to 2021]. We don’t have any evidence as to why it wasn’t.”

“It’s one of those cases [where] it’s got an inherent feel [that] something’s gone wrong,” Anderson said.

Whangārei District Council lawyer Padraig McNamara said the council has the discretion as to when and how its decision-making process will consider the views of people.

McNamara said the reconstituted noise committee, which he noted had not met in 10 years, had an excellent understanding of the community’s views through the decision-making process and identified in a report that there would be issues with the community with regard to noise.

McNamara accepted the issues of noise concerns were discussed in a report, but only at a high level and were not quantified in any noise modelling.

McNamara said if the lease were granted, Nest would be the sole occupier, and the council is not associated with any of their activity.

“Putting it bluntly, if Nest is granted a lease and it cannot comply with the RMA, then it will not be able to enjoy its lease as it intends,” McNamara said.

“It’s wrong to be characterising the council as the occupier when the noise generation will be carried out by Nest.”

Justice Downs expressed that if the lease was granted to Nest and they breached the noise rules once they were there, there was nothing that could be done, to which the packed gallery of Sound supporters vocally agreed.

On day two of the hearing, Nest lawyer Bal Matheson said Nest had a public presentation in May 2022 and a briefing with the airport noise committee in August 2022 and presented a noise boundary map collated from modelling.

Matheson said Nest had canvassed many sites, including Union Street, but the airport was the most logical location and their noise modelling exercise showed the noise only just breached the public boundary.

Matheson pushed back on both the council and Sound, pointing out that if Nest were expected to comply with the RMA, it would deem the service useless.

“Resource consent is a limit on daily movement – that is not feasible for an emergency helicopter. They have to take off when they are called. It won’t be regular. It would be impracticable that Nest needs to be subject to a curfew or daily limit of movement. It would make its operations completely unusable.”

Matheson said Nest was prepared to move their training exercises to another site to reduce flights if the location was granted. However, this would pose a risk if they were required in an emergency callout.

“Whatever rule your honour imposes, Nest will have to comply. Nest has no intention of operating illegally,” said Matheson.

Justice Downs reserved his decision, which will be released at a later date.