Noisy factory that’s ‘killing’ a community wants consent – and to keep breaking the law

A factory that is breaching the Resource Management Act, and keeping its neighbours awake, by running noisy equipment, wants to keep breaking the law for another five months. Nearby residents say the problem has become untenable and is affecting their health. Brittany Keogh reports on a community’s fight against big business and bureaucracy over their right to sleep.

During his nearly two-decade-long career in the army, Logan McLean​ always slept soundly – even as attack helicopters and fighter planes took off and landed near the barracks at bases on overseas combat missions.

But for the past 19 months he’s struggled to get more than a few hours’ sleep most nights in his suburban Field St home in Upper Hutt.

Even with double glazing on the windows, a white noise machine running, ear plugs in and a pillow over his head, the constant noise coming from the nearby Farrah’s flatbread factory keeps him awake.

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On any given night, McLean is not the only one tossing and turning. The tonal noise also disturbs the sleep of his partner Jane Derbyshire​, their 11-year-old daughter, and other neighbours.

It is believed to be caused by ceiling fans on the factory’s roof.

What makes the situation worse, sleep-deprived residents say, is that multiple times a week noise from the filling of a 15.3-metre silo with flour on the site at 57 Kiln St, Silverstream, disrupts their quiet enjoyment of their homes for 90 minutes.

A heating ventilation and air conditioning unit (HVac) at the factory also emits a constant hum, residents in Kurth Cres, which runs adjacent to the factory, say.

Repeated tests by noise consultants have found both the “incessant droning”, buzzing or humming and silo-filling sounds breach the Upper Hutt City Council’s District Plan and the Resource Management Act (RMA).

The silo is also illegal because it is over the height limit for which resource consent is required.

Farrah’s say it will fix the problems by April 2022. But in the meantime it wants retrospective consent for the silo and permission to build a second silo and to keep breaching the District Plan noise limits.

The council has supported the application, which more than a dozen neighbours, including McLean and Derbyshire, oppose.

Wellington regional medical officer of public health Dr Stephen Palmer​ has declared the noise a public health issue and urged Farrah’s and the council to take action to fix it as soon as possible.

McLean worries it’s killing him and his family

“The raft of health impacts that we have suffered directly as a result of Farrah’s continued, intentional breaches of the District Plan and RMA over the last 19 months have reduced our life expectancy,” he said at a resource consent hearing on November 11, referencing a report by Palmer which states the evidence that sleep deprivation can lead to hearing impairments and diseases such as obesity, diabetes and dementia is “overwhelming”.

At the two-day hearing, independent commissioner Robert Schofield​, who will make the final decision, heard evidence from affected residents, planning consultants for both the council and Farrah’s, and noise consultants.

For opponents, it was a chance finally to have their voices heard on the matter after nearly two years of what they viewed as inaction by the powers that be.

Several of them said when they first noticed the noise during the 2020 Covid-19 lockdown they struggled to work out where it was coming from and went to the doctor to check whether something was wrong with their ears or brain.

Since then, at least 30 people in the area had lodged a total of more than 200 complaints about the noise with the council.

Records of complaints showed many residents reported sleep disturbance, with some, like McLean and Derbyshire, moving into spare bedrooms at the other end of their homes to try, mostly unsuccessfully, to escape the noise, while others had moved out altogether.

Some said the fatigue and stress caused by the noise had taken such a toll on their ability to concentrate they had to quit their jobs.

Many affected residents broke down in tears as they described the impact the noise had on their lives.

Those who lived next to the factory when it was used as a warehouse for Foodstuffs said the neighbourhood had been quiet before Farrah’s moved in.

In 2017, the council gave Farrah’s an $80,000 economic development stimulus grant for earthquake strengthening, internal retrofitting and improving the factory’s exit and entry in Kiln St.

Among the residents who appeared as submitters and witnesses were several public servants, former army officers and emergency services personnel, former business owners, a chartered accountant and a justice of the peace.

Their message for the commissioner was clear: Farrah’s should shut down at night until it could comply with noise limits.

They feared the noise was only set to get worse after they spotted job ads posted online by Farrah’s which said the company was “growing” and “aggressively expanding”.

Derbyshire said at the hearing that exposure to the noise, and chronic sleep deprivation, had left her body in a “constant state of alert”.

After a sleepless night the mother-of-two was often “an absolute zombie”.

In the past year, at just 44, she had been diagnosed with shingles and depression and prescribed anti-depressants and sleeping pills.

“I was described by a previous military boss as one of the most resilient people he knew. But this issue has broken me,” Derbyshire said.

The noise also taken a toll on Helen Chapman’s​ health. So much so that last summer she temporarily moved out of her home.

“I got high blood pressure and dizzy spells. I’ve never had that before. The noise was also making me dizzy and nauseous,” she said at the hearing.

“In the end, my health got so bad, and I just wasn’t coping, and I had to move out.”

Chapman bought the property, which is further down Field St from Farrah’s than McLean and Derbyshire’s, in 2018 specifically for its sunny deck.

Before the noise started she “lived” on the deck during warmer weather. Now she was hardly ever able to use it due to the constant droning.

Vivian Tatham​ is in a similar position. She loves gardening but for the past two years has barely set foot on the large lawn of the Dunns St property she shares with her partner Ian Leask​ because of the loud, “unnatural electrical hum”.

“It sounds like a transformer is outside my bedroom. As it’s got hotter we are hearing it all the time,” she said at the hearing.

The thought of potentially having to live through another summer with that noise was distressing, leading the couple to consider selling the home they have lived in since 2015 and have been renovating.

Like McLean and Derbyshire, Tatham had resorted to sleeping in the spare room at the other side of the house and to taking sleeping pills which “really knock” her around.

“The lack of sleep makes me feel very stupid. I find that I often zone out at work and that I can’t follow the conversation.

“I’m just really annoyed that we’re paying with our health for … Farrah’s economic gain,” she told the commissioner.

She had repeatedly complained to the council and been frustrated by the “lack of action” to date.

“It’s taking too long … I feel very unheard by the council.”

This was a sentiment shared by many.

Craig Riley​ had felt so ignored that he gave up complaining.

The droning reverberates through the walls of the Dunns St home he and his wife have spent $350,000 renovating and hope to stay in forever.

His wife and teenage children don’t hear it (some people can’t detect the low frequency), but for Riley it’s like a diesel truck is always idling right outside.

Every morning the noise wakes him up at 4 o’clock, and he can’t go back to sleep.

“You can’t escape. You can’t put ear plugs in. You can’t do anything. It’s literally like torture,” he said in an interview ahead of the hearing.

The chronic sleep deprivation built up over time to the point where Riley repeatedly drifted off at the wheel while commuting along State Highway 2 from work in central Wellington. After a few near-misses, concerned he may eventually be involved in a serious crash, he resigned.

He had repeatedly complained to the council about the noise, so was surprised to be told in the lead-up to the RMA hearing that he couldn’t make a submission because the council did not consider him “directly affected”.

This was despite Riley living almost directly across the road from Tatham and Leask and having a line of sight to the factory, which operates from 5pm on Sundays to 5am on Saturdays.

Speaking at the hearing as a witness called by McLean, Riley said he felt the council had “mishandled” complaints.

Figures from councils around the country show only one other business, in Rotorua, had been the subject of more noise complaints than Farrah’s between November 2019 and August 2021.

The RMA states noise must not “unreasonably interfere with the peace, comfort, and convenience of any person”. If businesses or households are too noisy, councils have the power to issue abatement notices, requiring them to take action to reduce the noise.

Documents show Upper Hutt City Council served Farrah’s with only a single abatement notice in July 2020, requiring it to identify where the noises were coming from and come up with solutions for all noise breaches within a month.

Yet, the noise breaches continued after Farrah’s installed some mitigation measures.

Tests conducted by Marshall Day Acoustics, on behalf of the council, measured the sound coming from Farrah’s HVac unit at between 49 and 51 decibels overnight at a property in Kurth Cres over the fence from the factory.

That was about as loud as the hum of a large electrical transformer from 30m away.

The noise level permitted in residential areas in the council’s District Plan between 7pm and 7am from Monday to Saturday and all day on Sunday and public holidays is 40 decibels.

During the day, noise up to 50 decibels is allowed in the suburbs. However, when Farrah’s filled its silo, Marshall Day recorded readings of up to 71 decibels at nearby properties – which is considered loud, comparable to a vacuum cleaner.

None of the readings were done in the height of summer, which is when residents say the noise is the worst.

Noise testing by another consultant, Acousafe, hired by Farrah’s, captured lower readings to Marshall Day. The measurements were captured at different spots to Marshall Day, but it is not disputed that the levels are above what is permitted in the District Plan.

Despite this, the council failed to take further enforcement action.

In response to emails from McLean questioning this decision, the council’s lawyer Guy Smith​ wrote on August 27 that how it addressed the problem was “a matter of discretion”.

“Taking a strict enforcement approach, by issuing abatement notices, is no guarantee of immediate action or indeed of more swift progress.”

Smith said Farrah’s could have contested abatement notices and taken the council to court, which could have drawn out the process and cost much more than working with the company to get it to comply.

Disappointed with the council’s handling, McLean and Derbyshire contacted the Ombudsman and environment minister asking them to intervene.

Chief Ombudsman Peter Boshier​ investigated, but only in relation to complaints up October 2020 and with a limited scope, saying the council’s decision was “not unreasonable”.

Environment Minister David Parker​ took nearly six months to respond. After Stuff made inquiries, he apologised for the delay.

Parker said that, under the RMA, he could only intervene in how a resource consent was considered in cases of national significance by appointing a board of inquiry or sending the case to the Environment Court.

“As consenting the Farrah’s factory is not a matter of national significance it would not have been appropriate for me to exercise this power,” the minister wrote in a letter to McLean on November 8.

However, he said he expected the council to listen to local residents and follow the Ministry for the Environment’s Compliance, Monitoring and Enforcement guidelines.

Ministry officials had spoken to council staff about the Farrah’s case, Parker said.

Residents had also contacted Farrah’s directly about the noise. They said they had been met with a wall of silence.

On March 31, 2020, Derbyshire emailed the company to raise concerns about a “mechanical surging hum” that began at 6am and woke up her household.

“Could you please do something about the noise that is being emitted? It is a new thing, so there must be some kind of new machine that you are using … [L]ast night we struggled to go to sleep because of it as it is now running all night.

“If you can’t change that noise then please restrict it to reasonable working hours so that it doesn’t interfere with our sleep. I am sure we are not the only ones that this affects,” she wrote.

A staff member responded the next day saying she had brought Derbyshire’s concerns to the attention of the company’s management and someone would respond within a few days.

“I know having good relationship with our neighbours will be important to our business and it’s a sensitive time with everyone at home right now so thank you for raising this.”

However, Derbyshire never received the promised reply.

Documents she later obtained from the council under the Local Government Official Information and Meetings Act shed light on why.

Farrah’s managing director Jovan Čanak​​ forwarded Derbyshire’s email to the council on April 3. He described the complaint as “one of those sensitive things” he wanted his team to stay out of, lest it escalate to “the dreaded ‘neighbours at war’ situation”.

He said it could be “hard to find common ground with some people”, and during lockdown, when the neighbourhood was ultra-quiet, some people could “build this up as they have no other things to focus on”.

Čanak​ proposed that in future he would direct complaints to the council, and the two parties would discuss them “where necessary”.

“Obviously we understand our obligations to ensure we meet council regulations and are always willing to work with you where required.

“We do take our business reputation in our community seriously and the effects on our surroundings. I believe we are always very considerate, professional and proactive in our approach.”

He assured the council that he took Derbyshire’s complaint seriously.

After walking around the fence line at night with a decibel meter, he was confident there was no hum or excessive noise that would annoy the neighbours or was over council limits, he added.

Roof-mounted fans were used for ventilation for health and safety reasons. These were on a timer and had been being switched on at 6am, but now would stay off until 8.30am, Čanak​ said.

Staff had been informed of the complaint and told to be considerate of neighbours.

Čanak​ said Farrah’s planned to measure the noise at the factory’s boundaries at different times and days with a decibel meter, note any possible improvements and report this information to the council.

“I am extremely confident in what we are doing. We are in no way a noisy, dirty or smelly operation. We have a record of zero complaints at our Shakespeare Ave or any other site we have occupied for over the past 10 years.”

At the hearing, more than 18 months later, residents hoped to find out why Čanak​ had never spoken to them directly about the noise.

However, Čanak and his wife Farrah​ chose to watch the proceedings over video link rather than attending in person.

Their lawyer, Morgan Slyfield​, said because submissions from residents could bring to the fore “a great deal of emotion” the couple felt their presence would not be constructive.

He alleged neighbours had become “abusive” and “vindictive”. (Residents rejected this. They said they had always acted within the law and implying otherwise was offensive.)

His clients took their responsibilities to be good neighbours “very seriously” and had consistently sought solutions to the noise, Slyfield said.

Farrah’s had included dimensions of the silo in its building consent application in 2019 and was not aware its height breached regulations, which state such structures require resource consent if they are more than 12m tall. The council approved the application without raising this, he told the commissioner.

Kerry Wynne​, a senior planner at Urban Edge Planning contracted by Farrah’s, concluded that the company should get resource consent because the adverse effects on residents would be “minor”.

She said containers placed near the HVac and silo would act as a buffer to the noise. The blower on the flour tanker had also been lined with noise-reducing material.

She argued these measures would significantly reduce the noise until the problem could be permanently fixed when different technology arrived from overseas early next year.

Wynne rejected assertions by residents that Farrah’s was planning to expand imminently, saying the company wanted resource consent for a second silo in case of future growth.

Initially, Karen Williams​, a consultant planner hired by the council, supported the consent being granted, if Farrah’s installed the temporary mitigation it had proposed.

However, after hearing evidence from residents, she added an extra condition to her recommendations: that Farrah’s should get resource consent only if it could ensure the ceiling fan noise complied with the District Plan within 10 working days of the consent being issued. If it was unable to do this, it should have to reduce its overnight operations, she said.

In further written submissions, Slyfield said shutting the factory from 7pm to 7am would decimate the business.

Farrah’s production line operated at full capacity and if it shut overnight it would fail to deliver on the orders it was contracted to supply. This would be “catastrophic” and impact all the 100-odd staff it employed at the facility, Slyfield argued.

However, he said Farrah’s was willing to set up a community liaison group to discuss noise concerns with residents and undergo noise monitoring once permanent solutions were in place.

Farrah’s Čanak said in a statement after the hearing that he was sorry the noise was disturbing some residents.

The company had not intended to breach the district plan noise levels and was doing everything it could to fix the problem, he said.

“We have already identified and successfully reduced or eliminated some sources, for example, when one of our oven fans was identified, we immediately replaced it with a quieter fan.”

Čanak said, in the past fortnight, a new source of noise had been identified and Farrah’s was “working urgently to address this”. (However, residents disputed that the noise was new, with Derbyshire saying at the hearing that the noise appeared to be coming from the roof fans, which she complained about repeatedly.)

Čanak’s statement did not address questions about why he was yet to speak to residents directly about the noise. It also did not provide evidence of the abusive behaviour by residents Slyfield spoke of at the hearing.

Schofield has until December 7 to make a decision on the resource consent application.

But even if the decision is in residents’ favour, some, like Helen Chapman, remain sceptical that much will change.

“They’ve [Farrah’s] shown no interest whatsoever in fixing this noise,’’ Chapman said in an interview. ‘’The problem is that if they’re given temporary resource consent or the council continues to not give them abatement notices, they’re just going to continue to drag their toes.”

Correction: A previous version of this story incorrectly stated Derbyshire leads the Treasury’s Covid response. This was amended on November 20.