Plans for Conditions 3-5
Mainpower NZ Limited v Hurunui District Council. Decision No. [2011] NZEnvC 384. 9 December 2011.
The recent Mount Cass Wind Farm case brings together several points relevant to landscape assessment in general, and wind farms in particular.
Background
Mount Cass is a range of hills near Waipara in North Canterbury. They are a limestone ‘cuesta’ with a steep escarpment on one side, and a shallower ‘dip-slope’ on the other side (on which the wind farm is to be located). The hills also include distinctive karst features. It is a similar landform setting in some respects to Contact Energy’s Waitahora Wind Farm in south Hawkes Bay.
The initial application by Mainpower NZ Limited was declined consent by Hurunui District Council, but a revised proposal (which removed some turbines from nearest the ridge and revised the layout to avoid karst features) was approved following direct referral to the Environment Court.
It was Judge Borthwick’s division of the Environment Court, with Commissioners Menzies, Beaumont and Bunting. Commissioner Menzies is the former president of the New Zealand Institute of Landscape Architects and the International Federation of Landscape Architects. Landscape architects providing evidence were Dr Michael Steven, Ms Di Lucas, Ms Liz Briggs, and Ms Nicki Smethen.
Definition of ‘landscape’
The decision reinforces principles made previously:
- Landscape is a cultural construct comprising physical features that are perceived and valued by people;
- Landscape comprises three principle aspects (i.e. biophysical, perceptual, associative);
- These three principle aspects cover a wide range of details such as those in the Lammermoor decision which are listed again here at paragraph 295.
“[30 1] In keeping with the Act such a definition enables the development of landscape assessment which takes account of:
• natural and physical environment; and
• perceptual; and
• associative aspects (beliefs, uses, values and relationships) which may change over time.
The decision referred several times to the importance of community views and noted that none of the landscape architects had done so). It does raise the question of the extent to which a landscape architect’s opinion should be their own ‘expert opinion’ and the extent to which it should attempt to interpret community views –particularly with a consent application as opposed to policy work- given that a community view is often presented directly by submitters. In this case the Court had the District Plan, the submissions on referral, and evidence from residents to refer to in relation to community values.
While the Lammermoor list is a useful ‘aide-memoir’ of landscape elements, the decision reiterated a point made in the HMR decision that landscape architects should move beyond description. I take from that it is not an inventory of the elements that is important, but how they come together to form a landscape.
Double-counting
An argument we come across regularly is that landscape ‘double-counts’ such factors as indigenous vegetation, historical associations, and value to tangata whenua. While such an argument has been rejected in the past (for instance paragraph 79 of the Queenstown-Lakes decision) the Mount Cass decision re-stated and clarified this principle;
“[346] We reject MainPower’ s submission that to consider the contribution made by the significant indigenous vegetation to the feature is to ‘ double count’ this attribute under section 6(b) and (c) because it is valued differently under these sub-sections.”(emphasis added)
In other words, it is not the value of indigenous vegetation per se that is being considered in this context, but the contribution it makes to the value of the landscape. The subject is the landscape.
Extent of the Coastal Environment
In the Mount Cass case it was argued that, based on case law (see Northland Regional Planning Authority vs. Whangarei County Council 463/76), the coastal environment extended to the Mount Cass ridge because it is the dominant landward ridge (Mount Cass is approximately 500m high and 4km from the coast) and because the coast was a significant influence. The decision rejected both reasons:
“[320] …where a dominant ridge may be a useful means to identify a coastal environment boundary, such a boundary should be relevant to the coastline and coastal environment. There is no necessity to identify a dominant ridge in each case, particularly one that may be kilometres away from the coast.”(emphasis added)
“[321] … By contending that the coastal environment has an extreme reach, we are concerned that attention could be drawn from the importance of the coastline and derogate from the focus of section 6(a).(emphasis added)
This was despite an argument that the coastal environment should be considered at a broad scale because of the large scale of the wind turbines.
The Court discussed that policy 1(2)(c) of the NZCPS 2010 restricts the coastal environment to areas where coastal processes are significant, and the Hurunui District Plan defines the coastal environment as areas where the ‘coast is a significant part or element’. It concluded that this wasn’t the case at Mount Cass. It also noted that policy 1(2)(f) refers in a general sense to elements and features that contribute to the natural character, landscape, visual qualities or amenities’ but went on say that “it does not appear to necessarily encompass land that is some kilometres distant from the coast”. (emphasis added)
Outstanding Natural Features and Landscapes
The District Plan is silent on ONF/ONLs, and the Court decided the Mount Cass ridge including the escarpment and upper parts of the dip-slope, is an ONF. There is a discussion on what ‘feature’ means.
[330] The landscape architects agreed that a feature is a distinctive part of a landscape. And for the purposes of determining significance a feature can be considered separately from the wider landscape of which it is a part. (emphasis added)
It emphasised that context and community perceptions are relevant when considering ONFs:
“[333]We agree…site context must be relevant in a consideration of an outstanding natural feature, and that such an assessment is based on people’s perceptions and relationship with place.…” (emphasis added)
[334] …we regard this is a matter of judgment, informed by both community values and expert opinion. There are no invariable criteria for outstandingness.(emphasis added)
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