Landscape and RMA: The Mackenzie Basin

A series of observations and opinions on landscape in RMA decisions.

http://www.flickr.com/photos/50962292@N07/5599653214/

Background

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.

“[77]… 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.

[82] … (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.

 [83] 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 4^th 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?

“[101] 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 “[101] …it is conceptually useful to separate out the values which contribute to whether a landscape is outstanding” and also noted [80] that the Lammermoor list of factors are open to improvement.

Naturalness

The Court restated the principle that naturalness (at least as used in the RMA) is a cultural construct (“[91] 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.

 

Details:

High Country Rosehip Orchards Limited and Mackenzie Lifestyle Limited and ors v Mackenzie District Council. Decision No. [2011] 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.

Ground-Truthing Urban Design Criteria in New Zealand

by Gavin Lister

Are urban design criteria based on overseas literature relevant in New Zealand cities? It’s a relevant question where Councils seek to introduce urban design controls to District Plans.

Prior to the 2010 & 2011 earthquakes, Christchurch City undertook an exercise to ground-truth such urban design criteria in the ‘real world’ as part of a RMA section 32 exercise for an urban design Plan Change. While the earthquakes changed everything, the criteria tested and refined through that exercise have been incorporated into the planning for the rebuild (and formed part of the brief for the recent 48hour Design Challenge).

The approach:

1. Criteria were extracted from urban design theory texts. They were tabulated to identify common threads based on the underlying purpose of each criterion.
2. The common threads were distilled into 23 criteria under 5 main heads dealing with building form, street frontage, relationship to neighbouring buildings, pedestrian circulation, and carparking/vehicle access.
3. A sample of 40 recent developments were selected by Council staff and assessed by two independent experts. The sites were drawn from the central city and business zones in suburban areas. Each site was assessed by two people to test consistency. The assessments were made against a 5 point scale, aided by descriptors for each point on the scale.

The results:

1. Scores were spread across the range from ‘good’ to ‘bad’ demonstrating that good development is readily achievable from an urban design perspective.
2. There was a range of scores for each of the development types, demonstrating the criteria worked for such ‘real world’ typologies as supermarkets, car-park buildings, and large format retail as well as the traditional central city.
3. There were, however, a significant proportion of poor scores for each criterion, and examples of each development typology which scored poorly overall, justifying concerns about urban design quality.

It also became apparent the criteria could be further simplified (some duplication was obvious) and better organised to reflect the underlying urban design theory. They were refined to include an explanation of each criterion’s purpose to assist assessors apply them intelligently in different contexts.

The exercise focused, of course, on individual sites and did not pretend to examine wider urban design matters such as street networks and distribution of activities. But it does address the individual site developments that cumulatively create our cities.

Credits: Isthmus carried out the research, development of urban design criteria, and ground-truthing as part of a team with Beca Planning (who prepared the RMA section 32 report and subsequent proposed Plan Change) and Council’s urban design and planning staff led by Hugh Nicholson and Caroline Rachlin.

Isthmus Research: Implementation Techniques for Complex Projects under the RMA

by Rosie Allen  BSc BLA (Hons)

Since I joined Isthmus in February 2011 I have been undertaking research into landscape design input to major infrastructure projects, in particular the mechanisms for tying together landscape assessment with landscape design implementation. Projects I reviewed ranged from ‘worst practice’ to ‘best practice’:

A ‘worst practice’ approach is where a Landscape and Visual Assessment (LVA) is carried out after the project has been designed, and where any design input is limited to mitigation (typically planting) after the fact.

A ‘best practice’ approach, on the other hand, is where there is; input to the project design itself (avoiding effects as the first priority); input to more aspects of the project in collaboration with other disciplines; a focus on positive effects as well as reducing adverse effects; and use of more sophisticated mechanisms to control implementation of works.

Extract from Steamfield Design Protocol - Tauhara II Geothermal Development.

link to full SDP

The initial impetus for this research is the increasing complexity of infrastructure projects, alongside increasing scrutiny of environmental effects and demands for higher standards of environmental design. At the same time the regulatory processes for infrastructure consenting has become more demanding (especially for ‘one shot’ Boards of Inquiry) and decision-makers are demanding more certainty about how designs will be implemented, in order to determine effects and therefore assess outcomes.

The best response appears to be more pro-active design and more sophisticated management mechanisms that provide more detail and certainty about how the works will be delivered. The other side of the coin is that such an approach can reinforce the credibility of landscape evidence, and improve the likelihood of consent.

In particular I looked at a range of implementation mechanisms including:

• Landscape Management Plans,
• Design protocols,
• Best practice procedures (e.g. for earthwork contouring),
• Landscape and urban design frameworks (particularly for NZTA projects),
• Comprehensive development plans (CDPs) (particularly for land development),
• Outline plan of works for Notices of Requirement and
• Environmental Management Plans.

Each of these seems to have a role and is best suited to different contexts. For instance Landscape Management Plans may be best where the project design is relatively advanced and complex, whereas design protocols may be best where future flexibility is needed (for example with the moveable elements of a geothermal steam-field).  One of the tasks is also looking at how each mechanism can be tied in to conditions.

As well as management mechanisms, my research has coordinated technical knowledge and resources for the range of works associated with such projects. This has been assembled from a technical working group within Isthmus and input from outside experts.

I am now interviewing a range of clients for input from their perspective. The goal is to provide a tool-box to best suit different projects. I will add further detail on subsequent blogs on this site.

Transmission Gully Urban & Landscape Design Framework

Personal Background: Initially I studied Botany and  Ecology and then completed a degree in landscape architecture. I was engaged by Isthmus for a summer research project in February 2011. I am now a permanent member of the Wellington team working on a variety of projects, as well as continuing to develop this ongoing research topic.

Please contact me if you would like to contribute  or learn more. rosie.allen@isthmus.co.nz

RMA and Landscape: Mount Cass Wind Farm Decision

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.

image: John Sullivan http://www.flickr.com/people/mollivan_jon/

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)

image: John Sullivan http://www.flickr.com/people/mollivan_jon/

RMLA Awards

Contact Energy’s winning of this year’s Resource Management Law Association (RMLA) Award for the Tauhara II project highlighted the value of an RMA-led design strategy.

Tauhara II will be a  250MW geothermal project near Taupo, and was the first infrastructure project to be completed under the new ‘nine month’ Board of Inquiry process. The award picked out several aspects of ‘best practice’ including:

• Investigation and predictive modelling of Wairakei-Tauhara Geothermal System;
• Management of the geothermal resource;
• Effective engagement with iwi;
• Community consultation;
• Engagement with the Council;
• Landscape and environmental design;
• Consenting procedures tailored to the constrained time frame;
• AEE and planning documentation; and
• Innovative conditions and management devices.

Tauhara II Project Team: bookended by Isthmus’ Gavin Lister (right) and Brad Coombs (left)

Hauauru ma Raki Wind Farm

by Gavin Lister

(first published LANZ#10 – full article)

The recently consented[1]  Hauauru ma Raki (HMR) Wind Farm on coastal hills between Port Waikato and Raglan is the largest consented wind farm in New Zealand and amongst the larger wind farms in the world. The wind farm will comprise 168 turbines and a capacity of up to 504MW, similar in nominal capacity to some of New Zealand’s largest hydro stations. The wind turbines will be up to 150m in height (to blade tip) and will be clustered in eleven groups within an area 40km from north to south. The landscape comprises extensive pastoral farms with some picturesque limestone landforms and an exposed Tasman coast line.

The Board of Inquiry decision brought together several points of case law relevant to landscape matters, and was also noteworthy because the hearing was adjourned for a year to enable a more comprehensive approach to environmental measures to be designed.