BPO procedures establish for a given set of objectives, the option that provides the most benefits or the least damage to the environment, as a whole, at acceptable cost, in the long term as well as in the short term.“
The BPO framework is integrated throughout the RMA (1991), but most critically through three main sections. First and foremost, Section 2 (Interpretation and application) includes the definition of what is meant by the best practicable option in relation to a discharge of a contaminant or an emission of noise in the context of the RMA (1991).
In this context it means “the best method for preventing or minimising the adverse effects on the environment having regard, among other things, to—
(a) the nature of the discharge or emission and the sensitivity of the receiving environment to adverse effects; and
(b) the financial implications, and the effects on the environment, of that option when compared with other options; and
(c) the current state of technical knowledge and the likelihood that the option can be successfully applied.”
Accordingly, the RMA (1991) interpretation of the best practicable option prescribes a suite of matters which should be considered when determining, within this framework, the best method for preventing or mitigating the adverse effects in relation to discharges.
This interpretation of the BPO has been developed further through case law since the enactment of the RMA in 1991, and in particular through a case heard through the former Planning Tribunal in 1992 – Auckland Kart Club Inc v Auckland CC A124/92. The outcome of this case helped clarify that the phrase “among other things” within the BPO definition does not just limit consideration to the three provisions (a), (b) and (c); nor does it mean that one provision should be prioritised above another.
In addition, the question of significance accorded to each provision is dependent on the particular case, while the use of the conjunction “and” linking each provision means that in evaluating the best method account should be taken of all of the factors referred to in the provisions.
Nonetheless, individual components of the provisions may be exclusive of others at any one time. “What is reasonable is a question of fact and degree” (Salmon, RM2.10.01).
This refined understanding of the meaning of BPO is then reflected through a number of different sections in the Act. The second part of the Act that helps to establish the overall BPO framework relates to the potential for plans to be developed and approved by regional councils – or unitary authorities as is now the case with Auckland Council.
Having established the interpretation of what actually constitutes the BPO within the RMA context through Section 2 of the Act, Section 70(2) (Rules about discharges) goes on to offer the ability for regional councils to include a rule within a regional plan that requires the adoption of the best practicable option in order to prevent or minimise adverse effects on the environment of any discharge of a contaminant.
The Act prescribes that the council must be satisfied that the inclusion of such a rule is the most efficient and effective means of mitigating those adverse effects on the environment. And in order to be satisfied, regard should be given to:
(a) the nature of the discharge and the receiving environment; and
(b) other alternatives, including a rule requiring the observance of minimum standards of quality of the environment.
In terms of the management of discharges, this ability to include such a rule within a regional plan is perhaps the pivotal component of the Act’s BPO framework.
THE BEST PRACTICABLE OPTION – WHAT DO WE MEAN?
In order to consider what is actually meant by the phrase – the best practicable option, there is value in considering the individual definitions of each of its three components.
The online Oxford Dictionaries defines the ‘best’ as “that which is the most excellent, outstanding or desirable”; ‘practicable’ as “being able to be done or put into practice successfully”; and ‘option’ as “a thing that is or may be chosen” (Oxford Dictionaries, 2013).
Bringing these individual definitions together, we can explain the phrase to mean – the most desirable choice of something that can be done or put into practice successfully to manage our environment, while considering the economic, social, cultural, and spiritual relationships we desire for our Region as required by the Vision & Strategy for the Waikato River under the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010.
With the above explanation in mind, it is evident that the best practicable option phrase can be used in different situations. For example, and in the context of a topic of particular social interest, one could refer to the decision to purchase a particular house – affordable or not, as the best practicable option.
Clearly the use of the phrase in this context is highly situational and open to debate, and one which is influenced by an array of contributing factors such as price, budget, location, number of bedrooms, outdoor space and so on.
In this scenario however, arguably the person who chooses to buy a particular house is in the most appropriate position to determine what their best practicable option is.
They have weighed up the contributing factors of most importance to them, and have made a decision within those constraints.
Nonetheless, even a slight change in circumstances could cause the decision to no longer be the best practicable option. An increase in mortgage interest rates for instance. In light of this, it can be construed that in whatever context, the best practicable option is situational, affected by perspective and reliant on a finely balanced decision process.
Using the above example as a template and replacing the buying of a house with farming the land, the use of BPO’s in relation to control of discharges are also highly situational and influenced by an array of factors such as type of farming operation conducted, receiving water catchment, scale of any discharge, topography, geology, prevailing climate etc.
In the farming scenario, arguably the person who is in the most appropriate position to determine what their best practicable option is has to be the farmer.
The use of BPO in farming then gives the ability to allow flexibility of land use tailored to an individual property and its influencing factors whilst maintaining the observance of minimum standards of quality of the environment.
Andy Loader
Co-Chairman P.L.U.G.