Duty to Adopt Best Practicable Option - s16 of the RMA

When does the s16 duty apply?

Section 16 of the RMA imposes a duty on occupiers of land and users of the coastal marine area, to ensure that noise levels are kept at a reasonable level by adopting the best practicable option, as defined in s2 of the RMA. Local authorities can also set noise emission standards in plans and resource consents.

The s16 duty and any applicable rules for noise are related. Generally if the noise exceeds the standards set by the rules, it will be treated as unreasonable noise. However, if a person complies with a national environmental standard, rule or applicable resource consent condition, the duty in s16 of the RMA is not necessarily met. The occupier may still need to do more if the noise is unreasonable and a practicable option is available to reduce it. This was illustrated in Ngataringa Bay 2000 Inc v AG & North Shore CC A16/94 where the Court stated "even sophisticated district noise control rules cannot fully be responsive to local circumstances to ensure noise emissions do not exceed reasonable levels".

Section 16 sits in Part 3 (“Duties and restrictions”) of the RMA. It imposes a general duty on all occupiers of land to control the emission of noise from that land. It sets out the supervening policy of the RMA in relation to noise and could be called upon notwithstanding that noise emissions comply with the noise control limits of a District Plan. Whether the section focuses on the duty to adopt the best practicable option or not, the clear intent of the section is to limit emissions of noise from land to reasonable levels (Empire Entertainment Ltd v Auckland City Council [2010] NZRMA 525 (HC).

Enforcement of the s16 duty - general

There are three options for enforcement of the s16 duty under the RMA:

  • application for an enforcement order
  • application for an interim enforcement order
  • issue of an abatement notice.

These options are not mutually exclusive and all may be used to enforce general duties under s16.