Landscape, Natural Character, Aquaculture and the NZKS Supreme Court Decision

Australasian Coasts & Ports Conference 2015 15 - 18 September 2015, Auckland, New Zealand

Bentley, JA. Landscape, Natural Character, Aquaculture & the NZKS decision

Landscape, Natural Character, Aquaculture and the NZKS Supreme Court Decision 1

James A. Bentley Senior Landscape Architect, Boffa Miskell Ltd

1

Abstract Aquaculture, notably farming of mussels, salmon and oysters, has grown from small beginnings to become a significant primary industry in New Zealand. Economic activity, coupled with increasing environmental protection, means that the consenting of new, or the expansion of existing aquaculture developments is not always a straightforward process. A recent Supreme Court decision has further amplified the importance of the hierarchy of planning documents to decision makers, as well as the relationship between the precautionary principle and adaptive management of adverse effects.

Landscape and natural character effects are often cited as one of the pertinent issues in deciding whether aquaculture development is appropriate in a particular location. Councils are under pressure to ensure that their regional and district plans are robust enough to confirm that appropriate decisions can be made in the coastal environment. The Supreme Court in Environmental Defence Society Inc v New Zealand King Salmon Company Limited (NZSC 30/2014) stated the importance of identifying areas of natural character and outstanding natural landscapes within the coastal environment to provide greater certainty for all involved when applying and considering consents. Emphasis on ‘what is being protected’ was also strongly highlighted.

This paper considers the range of potential landscape and natural character effects of aquaculture under the Resource Management Act 1991 and Policies 13 and 15 of the New Zealand Coastal Policy Statement 2010. Specifically, this paper will focus on how landscape and natural character values are identified and protected through evolution of a robust methodology and best-practice descriptions of the characteristics and values of the area under consideration.

Keywords: Landscape, Natural Character, Effects Assessment, New Zealand King Salmon Supreme Court Decision, Spatial Planning No matter which definition is used, landscape 1.

Landscape and Natural Character embraces many different factors. It is important to Landscape and natural character are both consider that landscape is not only concerned with Resource Management (RMA) Section 6 Matters landscapes that are recognised as being special or of National Importance. They are distinct topics, valuable (i.e. outstanding), but also about the each with their own specific considerations – ordinary and the everyday – the landscapes where something which is reflected in the New Zealand people live and work, and spend their leisure time Coastal Policy Statement (NZCPS) which states [2]. that natural character is not the same as natural Best practice in relation to the evaluation of features and landscape, or amenity values (Policy landscape [1] [3], is currently focussed on three 13(2)). broad components, being biophysical, sensory (or There are several definitions of what landscape perceptual) and associative. means; the New Zealand Institute of Landscape Essentially natural character is a sub-set or Architects [1] defines landscape as: component of landscape and is concerned with ‘a ‘...the cumulative expression of natural and cultural measure of naturalness’ in relation to the features, patterns and processes in a geographical biophysical and part of the sensory components of area, including human perceptions and landscape. The following diagram (Figure 1) associations.’ assists to illustrate this relationship.

And the Council of Europe defines landscape as: ‘Landscape is an area, as perceived by people, whose character is the result of the action and interaction of natural and/ or human factors.’

Australasian Coasts & Ports Conference 2015 15 - 18 September 2015, Auckland, New Zealand

Bentley, JA. Landscape, Natural Character, Aquaculture & the NZKS decision

Figure 1: The Relationship between Landscape and Natural Character

Although natural character is not defined within any statutory documents, a definition of the term is contained within the Department of Conservation’s Guidance Note to Policy 13 of the NZCPS 2010.

This definition, which had its origins adopted by the Ministry for the Environment in 2002, is useful and workable. This definition states that:

(perceptual and experiential) ‘naturalness’ within a geographical area and is a part of landscape. It can also be measured (or rated) on a spectrum from modified (i.e. very low levels of natural character) to pristine or near pristine (i.e. very high levels of natural character), as Figure 2 suggests below:

‘Natural character is a term used to describe the naturalness of coastal environments. The degree or level of natural character within an area depends on:

Very Low

Low

Low Moderate

Moderate

Moderate – High

High

Very High

Figure 2: Spectrum of natural character

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The extent to which natural elements, patterns and processes occur; and

The two constructs of landscape and natural character are inherently interconnected, separated only by legislation. Confusion often arises, especially when also considering amenity aspects.

2.

The nature and extent of modifications to the ecosystems and landscape/ seascape.

2.

The highest degree of natural character (the greatest naturalness) occurs where there is least modification. The effect of different types of modification upon the natural character of an area varies with the context and may be perceived differently by different parts of the community.’

[4] The NZCPS Guidance Note’s definition is useful for understanding the concept of natural character, however it does not clearly outline how natural character relates to landscape in practice. Boffa Miskell understands that natural character is the level of actual (abiotic and biotic) and perceived

Understanding Landscape and Natural Character values and characteristics Any understanding of the landscape or natural character of an area requires a collection of baseline characteristics from which value-based judgements can be made (for example on the area’s sensitivity and/or quality). Effective landscape management is underpinned by landscape assessment. If robustly and rigorously applied it should inform both the approach and decision making process relating to how landscapes are managed [3]. This rigour has also been further amplified through the Supreme Court in Environmental Defence Society Inc v New Zealand King Salmon Company Limited (NZSC38/2014).

Australasian Coasts & Ports Conference 2015 15 - 18 September 2015, Auckland, New Zealand

Discussed in the proceeding paragraphs are methods for undertaking this assessment.

2.1 Landscape Characterisation Landscape characteristics (or Landscape Character) are inherent in the landscape under consideration. They are derived from a combination of components (i.e. landform, land cover and land use) and distinguish one area from another [3]. They contain both biophysical and cultural attributes. Characterisation provides a sound descriptive and analytical basis defining what makes an area of landscape distinct.

Communities identify with ‘their’ landscapes and recognise them as having a particular combination of attributes and features that give them a distinctive ‘character’.

3.2 Identifying and assigning landscape value Landscape values reflect the relative value to different landscapes, or natural features, held by society. A landscape may be valued by different people for a wide variety of reasons. Such values may also change over time. Most commonly, an assessment of landscape value underpins the traditional approach to conserving and protecting the most highly valued landscapes. This typically reflects formal acknowledgment through a recognised landscape classification process.

Evaluating landscapes, therefore, requires a methodically transparent and robust process.

In New Zealand and under the RMA, when ‘judging’ landscape value, it is recognised that there are various ways in which landscapes (or features in the landscape) can be determined. The identification of Outstanding Natural Features and Landscapes (and the reasons why landscapes are outstanding), as defined by the RMA, are essential in understanding the ‘top’ rated landscapes in this country.

Best practice for landscape assessment in New Zealand is an amalgam of international, national and specific decisions from the Courts. This is especially so regarding Outstanding Natural Features and Landscapes. Whilst practitioners generally utilise a similar method, such as the guidance provided within the 2013 Quality Planning Note on Landscape, there are no hard or fast rules to follow. The emphasis must always be on establishing what is being protected, so clear articulation of the landscape values is paramount.

3.3 Landscape naturalness The concept that a ‘natural’ landscape does not require a pristine indigenous environment has been endorsed by the Court on a number of

Bentley, JA. Landscape, Natural Character, Aquaculture & the NZKS decision

occasions (for example Harrison v Tasman District Council (W42/1992); Unison v Hastings District Council (C11/2009); Maniototo Environmental Society v Central Otago District, Council (C103/2009) and Upper Clutha Tracks v Queenstown Lakes District Council (C432/2010).

At the most common level, it is the perception of ‘naturalness’ through which natural features or landscapes are identified. This can include parts of highly modified ecosystems (including farmland) where the landform remains relatively intact and the perceptions of human artefacts are limited. The Man O War Station Limited v Auckland Council (NZHC 767/2015), along with Environmental Defence Society v King Salmon NZSC 38 (2014) endorse this view, noting that human engagement and intervention do not necessarily detract from or diminish the level of naturalness. In some instances, these aspects can act to ‘enhance the natural character of an area’ and contribute to a landscape’s intrinsic value. Put simply, some working rural landscapes can still be perceived as ‘natural’.

2.4 Natural Character Any natural character methodology must be flexible to be adopted to suit different types and scales of coastal environments and ecosystems. It is also expected that natural character requires the input of terrestrial, freshwater and marine ecologists and other natural scientists (e.g. geomorphologists), as well as the input of landscape architects and planners.

In applying thresholds for naturalness and ‘outstandingness’, as well as ensuring important values are recognised, it is increasingly evident that a national standard of landscape evaluation on which to base objective value judgements is required. Development of such a standard would also afford increased certainty for those engaged in the resource consent process.

3.

Aquaculture Aquaculture is the world’s fastest expanding production of animal protein for human consumption [5]. The New Zealand Government is committed to enabling this industry to achieve its goal of NZD1 billion in annual sales by 2025 [6].

Aquaculture activities in New Zealand are wide ranging geographically and comprise a range of species, including mussels, oysters, finfish (salmon), paua, seaweed and scallop [5]. Each type, be it finfish or shellfish, incorporates a multitude of different structures that can affect the landscape and natural character of an area, including the area’s ecology.

Australasian Coasts & Ports Conference 2015 15 - 18 September 2015, Auckland, New Zealand

The landscape and natural character effects, which result from aquaculture, vary with location and the different infrastructure required at each farm.

Effects can, for example, be quite different between salmon farms and mussel farms.

Understanding the necessary components of each farm, in any given location, is critical in accurately identifying the level or degree of landscape and natural character effects. Early scoping stages should identify a range of potential effects on which decisions can then be made.

Landscape and natural character effects can be actual, ephemeral, cumulative and secondary and can change over time. Consolidating aquaculture related development (i.e. marine farms) can have clear landscape and natural character advantages over spreading the same farms across wider areas. However, such an approach should be weighed against likely effects and the potential for extensions to dominate the character of an area that can create a strong, utilitarian focus.

Specific effects from marine farms can relate to the size and location of the proposal, the density and colouration of the buoys or structures, glare, reflection and lighting (notably night lighting) as well as from other structures involved, such as maintenance barges that work on the farms. It is also imperative that other aspects of visual effects of marine farms are considered, which include the nature and frequency of the viewing audience, the focus of the view, the distance from where the viewer is viewing the farm, and the view angle.

Landscape context (i.e. backdrop of the farm), weather, light and sea conditions can also influence how a marine farm is absorbed into its setting.

Understanding this information will provide a sound basis on whether the proposal is considered appropriate development in landscape and natural character terms.

Aquaculture and the NZKS Supreme Court Decision The NZCPS under Policy 13(1)(a) states:

Bentley, JA. Landscape, Natural Character, Aquaculture & the NZKS decision

(b) Avoid significant adverse effects and avoid, remedy or mitigate other adverse effects of activities on natural character in all other areas of the coastal environment;’ Under NZCPS Policy 15(a), a similar vein of policy is transcribed to landscapes: ‘To protect the natural features and natural landscapes (including seascapes) of the coastal environment from inappropriate subdivision, use and development: (a) Avoid adverse effects of activities on outstanding natural features and outstanding natural landscapes in the coastal environment; and (b) Avoid significant adverse effects and avoid, remedy, or mitigate other adverse effects of activities on other natural features and natural landscapes in the coastal environment;’ Although specific to an individual salmon farm proposal, the Supreme Court, (the country’s highest court) in Environmental Defence Society Inc v New Zealand King Salmon Company Limited (NZSC 38/2014) provided a number of very important points regarding its decisions made under the RMA and NZCPS. This is the first time that the Supreme Court has considered such issues and commented that the decision will have potential to affect all decisions under the RMA. Due to the proposed site being located next to an Outstanding Natural Feature and an area containing Outstanding Natural Character (and therefore subject to both Policies 13 and 15 above), the Board of Inquiry, which originally heard the application, noted that although the proposed farm would have very high adverse effects to both landscape and natural character, an overall broad judgement would be appropriate and would achieve the RMA’s ultimate purpose. This decision was appealed to the High Court (which agreed with the Board), and then to the Supreme Court.

4.

‘To preserve the natural character of the coastal environment and to protect it from inappropriate subdivision, use and development: (a) Avoid adverse effects of activities on natural character in areas of the coastal environment with outstanding natural character; and

In applying Policy 13 and 15 of NZCPS, Environmental Defence Society Inc v New Zealand King Salmon Company Limited (NZSC 38/2014) found that the imperative to ‘avoid’ adverse effects of activities assumes its ordinary meaning of ‘to not allow’ or ‘prevent occurrence of’. This affects how planning instruments are developed, particularly in terms of the nature of the provisions drafted to meet this imperative (e.g. active management of appropriate activities vs prohibition). However, Environmental Defence Society Inc v New Zealand King Salmon Company Limited (NZSC 38/2014) also suggests that in avoiding adverse effects,

Australasian Coasts & Ports Conference 2015 15 - 18 September 2015, Auckland, New Zealand

some activities with minor or transitory effects may be acceptable and that some use and development may also enhance natural character.

In seeking to avoid adverse effects, this raises an issue in relation to the appropriateness of the many and varied activities associated with rural production (or other human induced modification), and the degree to which they should be managed within any area identified as an outstanding natural feature or landscape.

Landscapes, by definition, accommodate a range of dynamic natural and cultural (human induced) processes. Ensuring that adverse effects on landscapes are avoided requires an understanding of which natural and cultural processes are valued to ensure such values are maintained.

The continued function of natural or cultural processes which do not detract from or diminish the presence or perception of important landscape values cannot be seen to generate adverse effects.

Significant in the findings of Environmental Defence Society Inc v New Zealand King Salmon Company Limited (NZSC 38/2014) was not only an insight into the purpose of planning documents and how they should be considered, but also that to give effect to Policies 13 and 15 of the NZCPS, a regional council must assess the natural character and landscapes of the region and identify where these areas require preservation or protection.

These assessments need to be explicit, a directive that is clear in Environmental Defence Society Inc v New Zealand King Salmon Company Limited (NZSC 38/2014). Furthermore, the Supreme Court in this case highlight that where a policy states ‘avoid’, this is what is to occur.

In relation to subdivision, use and development in the coastal environment, a clear understanding of what is being preserved or protected needs to be gained. Councils need to provide a transparent methodology for the identification and mapping of outstanding natural character and outstanding natural features and landscapes. Detailed descriptions of the characteristics and values of each defined area requires careful articulation.

Being explicit regarding the underlying values and characteristics of an outstanding natural feature or landscape, or an area of outstanding natural character, will provide clarity not only to applicants, but also to decision makers. For example, an area identified as outstanding that contains some small areas of modification (i.e. a single bach set amongst indigenous forest, or a small track or power pole), should be explicitly described as such, so that any further subdivision, use or development can be appropriately measured against what is being preserved or protected. In some instances, a small, stand-alone mussel farm

Bentley, JA. Landscape, Natural Character, Aquaculture & the NZKS decision

located within a large area holding outstanding natural character might not detract from its overriding values and characteristics that support its high rating. The subservience of the small-scale development is a key aspect for the assessment in this case.

5.

Enabling appropriate aquaculture development Fundamental to any assessment of natural character or landscape values is a clearly defined methodology. Environmental Defence Society Inc v New Zealand King Salmon Company Limited (NZSC 38/2014) clarified that the protection of outstanding natural features and landscapes from inappropriate development does nor infer protection from any development. In defining what constitutes inappropriate development, the inherent meaning of ‘inappropriateness’ needs to be assessed by reference to what it is that is sought to be protected. Conversely, in determining what constitutes appropriate development in the context of outstanding natural features or landscapes, particular attention needs to be directed towards the important, recognised values that underpin such areas, as it these that are the specific focus of protection.

The basis for identifying suitable, compatible activities such as aquaculture, will largely depend on the extent to which it can be demonstrated that the establishment or continued operation of particular activities within these areas will not erode such important values [7].

Current best practice [1] recognises that landscape values can derive from a combination of biophysical, sensory / aesthetic or associative factors. Avoiding adverse effects requires preventing the degradation of values that contribute to a landscape or feature being judged as both natural and outstanding, while recognising that dynamic natural and cultural processes will continue to operate. If, for example, farming activities, or discrete isolated buildings or structures contribute to part of the human-induced processes that occur across an area of valued landscape, then the continuation of such processes may well be appropriate in that context.

Clearly articulating the underlying values and characteristics of any given outstanding natural feature or landscape and area of outstanding natural character within a particular context, will provide greater assurance to councils, communities and potential developers. Inherent in this is the practical reality that in many instances such areas form part of a dynamic environment in which cultural processes such as farming will continue to endure.

Australasian Coasts & Ports Conference 2015 15 - 18 September 2015, Auckland, New Zealand

6.

References

[1] NZILA Education Foundation (2010). Best Practice Note: Landscape Assessment and Sustainable Management 10.1.

[2] Landscape Institute and Institute of Environmental Management & Assessment (2013). Guidelines for Landscape and Visual Impact Assessment, Third Edition, p14.

[3] Quality Planning Guidance Note (2013). Landscape, p6-p7 [4] Department of Conservation (2013) NZCPS Guidance Note, Policy 13: Preservation of natural character, p24.

[5] Ministry of Primary Industries (2013). Overview of Ecological Effects of Aquaculture, p7-p8.

[6] New Zealand Government: (2012).

The Government’s Aquaculture Strategy and Five-year Action Plan to Support Aquaculture (www.fish.govt.nz).

[7] Boffa Miskell Ltd. (2015) Landscape: Debunking the ‘absolute’ protection myth, p3.

Bentley, JA. Landscape, Natural Character, Aquaculture & the NZKS decision