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Reverse Sensitivity

Originally published July 2011 in Nelson Marlborough Farming

A number of years ago I had a client who was a pig farmer, as well as pig farming this chap liked to subdivide bits off his farm from time to time to supplement his income. One of these sections he created was a fairly small lifestyle block a good distance from the piggery. The problem was that in a Sou-wester the section was directly downwind from the piggery.

When went to sell the section he was approached by a lady wanting to the buy it who was a fairly prolific complainer as evidenced by multiple letters to the editor in the local paper. My client the pig farmer respectfully declined to sell her the section. The story, as told to me, goes that she rang him up one evening in tears begging him to let her buy the section. He then made arrangements to meet her on site the next time the wind was blowing from the southwest, they met, she experienced the odour of the facility at it worst , she said she understood the issue but loved the lifestyle block so much she still wanted to buy it, and it was sold to her.

She made her first complaint to the local Authority about the smell of the piggery within 6 weeks of moving into her new house. That pig farmer spent many tens of thousands of dollars on legal costs and mitigation measures as a result of complaints including hers.

That is an example of what reverse sensitivity is. It is when there is an effect of newer land uses (such as the life style block) on existing legal land use  (the piggery)

This can be a significant problem for primary producers with potential residential neighbours who don't want to get involved with conflicts over such things as spray drift,  various frost prevention techniques, and general noise, smell and other emissions from rural properties.

One way to alleviate these concerns is to put into effect a reverse sensitivity covenant at the time of subdivision. The covenants are also known as no-complaints covenants and contain clauses that remind buyers that they are living in a rural area, and say that farming activities may be be undertaken without interference or restraint. Some covenants say the property owner cannot make a complaint about neighbouring activity. A rural emanations easement is another similar mechanism which achieves much the same thing.

It may be true that these types of legal instruments have not been fully tested in the courts, and that some lawyer and planners have doubts as to their full enforceability under the Resource management Act and Bill of Rights. I am no expert in such things, I'll leave that to the lawyers, but from my experience they are a practical way to make a buyer aware of the potential adverse effects of of the nearby rural activity and to limit the damage from potential complaints.

These sorts of covenants can also be used in situations other than subdivisions. Several of our forestry clients create covenants in favour of themselves whenever they sell land which is nearby other land they own. In this way the covenant is in place no matter what happens to the land they have sold.

This article is general in nature and should not be a substitute for specific advice from a suitable professional.

John Cotton specialises in rural surveys and is a Director of Cotton and Light Ltd a survey firm that works throughout Nelson, West Coast and Marlborough.
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