A series of observations and opinions on landscape in RMA decisions.
The Mackenzie Basin case featured in the editorial of the 14 January edition of the Listener. The magazine notes that most people would agree that the Mackenzie Basin landscape is ‘outstanding’ and focused on the issues of the private cost of managing such landscapes for wider benefit. This approach (accepting the landscape is what it is and focussing on management) reflected the Environment Court decision.
The case was about a Plan Change that introduced policies for outstanding natural landscapes, but didn’t identify whether the Mackenzie Basin was or wasn’t an ONL. The Court said at the outset that such an approach is incorrect: The facts of the landscape should be established first and the appropriate management determined second.
“… the recognition of a landscape is a separate and prior exercise to determining what is needed to manage it sustainably…”
Delimiting (delineating) a ‘landscape’
A key matter in contention was whether the Mackenzie Basin is a landscape or several different landscapes. The latter approach was promoted by some property owners who wished to exclude parts of their farms (e.g. basin floor pastures) from surrounding mountains or lakes.
However, as above, the Court said that outstanding natural landscapes should not be delineated on the basis of what might be desirable management. Rather the extent of the landscape and its ONL status should be decided on the facts before considering what might or might not be appropriate management.
The Court went further to discourage landscapes as a primary unit of resource management (except where s6(b) applies) and suggested catchments are a better starting point in most instances.
 … (Dr Steven’s) second sentence shows that he is using “landscapes” for a specific purpose – as a unit of land for purposes of resource management under the Act. He seems to be implying that if an area can be sufficiently distinguished from a neighbouring area by reference to its elements, patterns and processes then it is a different landscape. We can see why landscape architects might want to take that approach – it makes application of their discipline to the RMA easy.
 However, there is little or no other reference to landscapes in the RMA apart from section 6(b). That has caused so much difficulty that we are reluctant to encourage analysis of the whole country in terms of landscapes as units of land. In our view a much more useful and scientifically based unit of land is the hydrological catchment, and that should be the starting point of most analyses. Only when considering areas where there may be an “outstanding natural landscape [or feature] should the concept of a “landscape” be the starting point for resource management purposes. And when deciding that issue in any case where it is raised, the first question is “what is the relevant landscape?”.”
At first glance this appears to marginalise the role of landscape in resource management, which would be unfortunate given that it is often ‘landscape’ that underpins people’s primary response to the environment. However:
i) Hydrological catchment boundaries often coincide with the visual boundaries of landscapes anyway;
ii) Those landscape architects who place greater emphasis in their practice on natural systems often already use the hydrological catchment as the starting point;
iii) In addition to ‘outstanding natural landscapes’ the Court previously supported a second tier of ‘section 7 landscapes’ (e.g. visual amenity landscapes) which also require identification of landscapes as a starting point for resource management;
iv) A distinction can be made between delineating the landscape resource (describing and delineating what’s there), and delineating areas for management purposes. In terms of the latter, though, we should be clear that we are sub-dividing landscapes and be precise about the terminology (Council’s assessment defined the Mackenzie Basin as a single ‘landscape’, and sub-divided it into four ‘character areas’ and 39 ‘landscape units’). For example it might be useful to differentiate between landscape elements (such as terraces, flood plain, steep slopes, ridges) or to differentiate areas in terms of visual characteristics (e.g. the ‘capacity to absorb development’ used in this case); and
v) Landscape matters are relevant, of course, when considering effects of a proposal as listed in the 4th Schedule.
Delineating the landscape and the relevant scale context, is a matter of professional judgement. But a landscape has to be a landscape. The Court agreed the Mackenzie Basin is a single landscape. The open plains and encircling mountains are parts of the whole, as reflected by the area’s name.
Three steps in identifying outstanding natural landscape
The Court also emphasised three separate steps to identifying an outstanding natural landscape (or feature):
- Firstly, what are the landscape’s characteristics and extent;
- Secondly, how natural is it (is it sufficiently natural?); and
- Thirdly, is it outstanding?
“ For future reference … it may help other landscape witnesses before the court if we record our preliminary agreement …that there is a distinction between the analysis of the landscape, and if ensuring it is sufficiently natural, of its outstandingness.”
In terms of each of these steps the Court referred to the factors listed in the Lammermoor case (the Lammermoor List?). These are an expansion of the earlier ‘Pigeon Bay’ factors, but are grouped under three main categories which might be described as:
- physical environment (natural and human)
- associative aspects
- perceptual aspects
Such a three-part grouping has been referred to previously, although with different terms used in each case: See for instance the HMR, Upper Clutha Tracks (Parkins Bay) and Unison decisions. It has been stressed in other decisions that such a list is not a formula, the factors may have different importance in different contexts, and one should not lose sight of the forest for the trees. An overall professional judgement is required of how the different components interact to create each individual landscape.
The factors listed above are, of course, not criteria. The Court noted that an assessment requires a valuation. For instance:
- how distinctive and important its geomorphological and ecological characteristics (elements patterns and processes are:
- how legible or expressive the landscape is; etc
The Court noted that “ …it is conceptually useful to separate out the values which contribute to whether a landscape is outstanding” and also noted  that the Lammermoor list of factors are open to improvement.
The Court restated the principle that naturalness (at least as used in the RMA) is a cultural construct (“ Perceptions of the “naturalness” of the basin vary with the beholder”). It’s not an absolute that can’t be measured by reference to a pre-human benchmark, and that while natural science factors are relevant they should not be given undue weight at the expense of other perceptual and associative factors. In this instance in fact it is understood that the Mackenzie Basin was previously mostly forested and the tussock grasslands are a consequence of (likely) human burning and subsequent grazing. However most people perceive it as a more or less natural landscape: At least sufficiently natural to be an ONL.
In terms of naturalness, the Court commented that a 7 point scale proposed by Dr Steven, ranging from ‘very high’ to ‘very low’ might be a useful scale for grading naturalness, although noting that such a scale would still require indicators. The Court stated that ‘moderate-high’ category (5 of 7) might be sufficiently natural for an ONL. This is the same as the scale recommended in the NZILA Best Practice Note for landscape matters in general. It would be useful if a consistent scale was used for all assessments, although the criteria and indicators will obviously vary depending on purpose.
A future blog will look at the rest of the decision covering the proposed management tools.
High Country Rosehip Orchards Limited and Mackenzie Lifestyle Limited and ors v Mackenzie District Council. Decision No.  NZEnvC 387
The interim decision was dated 12 December 2011. The case was before Judge Jackson and Commissioners McConachy and Mills. Landscape architects providing evidence included Mr Graham Densem, Dr Michael Steven, Dr Y Pfluger, and Mr Ralf Kruger.