Auckland Council is prosecuting one of the country’s top vineyards, saying a rowdy function and live band breached noise limits and the company should be convicted and fined up to $600,000.
But the swanky Waiheke Island winery has told a court the sound of crickets and passing aircraft may be responsible for the noise breach and the case against it should be thrown out.
Cable Bay Wine Limited and duty manager Matteo Cozzolino appeared yesterday in Auckland District Court to defend one charge of breaching the Resource Management Act.
Three other charges were dropped due to a technicality.
The council alleges “bass-dominant” noise from a function breached the allowable 35 decibel limit at a neighbour’s boundary on a summer’s night in 2018.
But the vineyard’s lawyer, Karenza de Silva, has attacked the accuracy of council evidence, claiming some of the measurements used to prosecute the winery were “just guesses” while other crucial data had been accidentally deleted by council staff.
The winery and its owner Loukas Petrou are no strangers to court and enforcement action. The operation has faced repeated prosecution, abatement notices and enforcement orders due to ongoing noise issues, unconsented helicopter flights and resource management breaches.
The Herald reported last year that a band of neighbours had spent more than $1 millionin a protracted court battle to hold Cable Bay and Auckland Council to account.
Council lawyer Stephen Quinn told the court the vineyard operation was “not consistent with its environment”, and had a long history of noise and consenting problems.
The council has fielded more than 75 noise complaints since 2012 when Petrou built an unconsented restaurant extension and began serving alcohol to hundreds of patrons on the winery’s lawn.
Quinn told the court monitoring and enforcement action had dragged on for years, requiring “significant council resources”.
After receiving a complaint, senior compliance officer Jacob Faafua travelled to Waiheke Island about 8.30pm on February 9, 2018. He set up a noise monitoring terminal (NMT) and began recording.
He told the court the weather was overcast with no wind. Though he could hear “slight” cricket noise, he assessed music from a live band at Cable Bay’s function centre as “excessive”.
Monitoring later found the noise had reached 45 decibels – 10 decibels over the allowable limit.
Under cross examination by de Silva, Faafua conceded that electronic noise files recorded on the NMT were accidentally deleted, meaning they could not be independently verified by Cable Bay’s own experts.
Faafua also admitted failing to take any notes on the night – only recording his recollections from the site visit in an email 20 hours later.
The court heard the NMT could not differentiate between sounds and Faafua was also asked about “residual noise” captured by the machine.
“There was also cricket noise which was difficult to pause as it was constant through the reading,” de Silva suggested.
“You didn’t know how much noise the crickets were contributing.”
De Silva also laboured the issue with another witness, acoustics expert David Winter.
He agreed the NMT could not tell the difference between noise emitted from Cable Bay or nearby Mudbrick Vineyard, let alone “birds, or traffic or passing aircraft”.
“The loss or deletion of Mr Faafua’s file makes it impossible to determine the contribution of crickets,” de Silva suggested.
Winter responded: “With absolute certainty I agree with that. If you wanted to have 100 per cent certainty you’d need the electronic file.”
The defence – which will open its case today – has indicated it will call for the case to be thrown out due to the deleted files and unreliability of other council evidence.
If convicted Cozzolino could be fined up to $300,000 or jailed for up to two years, while Petrou’s company could be fined up to $600,000.
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