The natural character quandry
By Dr Joan Forret and Robert Davies,
Harkness Henry Lawyers
Can the ‘natural character’ value of a site be adequately assessed by simply viewing photographs on a laptop?
VISIT TOURISM NEW ZEALAND’S website and it won’t take you long to work out that our country is defined internationally by its varied landscapes. Images on-line are of people climbing high country hill tracks, swimming in azure blue waters, and tentatively exploring thermal wonderlands.
There can be no doubt that New Zealand’s brand is inextricably linked to our country’s clean, green and “100% pure” environment.
Setting aside the politics of just how pure we may or may not be, no-one would disagree that preserving our environment – including recognising and providing for the things that make it special – is critical. The purpose of this article is to explore how that occurs at a practical level, using an example from the Coromandel, to encourage debate on whether the current approach to assessing natural character is working.
Variation 1: A very brief history
The Coromandel is a beautiful part of New Zealand. Located on the Pacific Coast Highway, it’s a coastal peninsula characterised by the central Coromandel Range with vast areas of native bush and impressive landforms. The Coromandel markets itself as being good for a person’s soul and describes its natural environment in justifiably glowing terms: “Renowned for its natural beauty, green pastures, misty rainforests and pristine golden beaches, the Coromandel is blessed with hundreds of natural hideaways, making it an ideal place to escape.”
On 13 December 2013, the Thames-Coromandel District Council (TCDC) notified its proposed district plan (PDP). As notified, the PDP sought the protection and enhancement of the natural character of the Coromandel’s coastal environment, wetlands, lakes and rivers. It did so by imposing a Natural Character Overlay (overlay) in specified areas distinguished by their high or outstanding natural character values. The efficacy of the overlay was challenged by some submitters to the PDP, who argued that it failed to give effect to the Resource Management Act 1991 (RMA), the New Zealand Coastal Policy Statement (CPS), and the proposed Waikato Regional Policy Statement (proposed RPS).
Among the myriad of concerns raised (including some interesting natural justice concerns we are forced to leave to another article) was the need to consider carving out areas captured by the overlay into separate categories to distinguish between areas of outstanding natural character, high natural character, and general natural character.
Following Environment Court consent orders issued as part of the proposed RPS process, TCDC accepted that the PDP did not adequately give effect to those matters of national importance required by section 6 of the RMA. This decision led TCDC to abandon the overlay and initiate what became Variation 1, a response designed to draw a line in the sand by identifying activities that would affect natural character values before defining what level of regulatory control was required to preserve those values.
Port Jackson
Port Jackson is located at the northern tip of the Coromandel peninsula, around 80km north of Thames. An aerial view of the area shows rugged inland areas clad in bush with a coastal fringe used for pastoral farming purposes. Our client’s site had been used as a farm for five generations, and included stockyards, water tanks, hedges, shelterbelts and caravans. It had limited native bush cover and was accessible to the public only by boat from the sea. Despite its heavily modified form, Variation 1 sought to impose a high natural character overlay across the entire site. Our client’s concerns, therefore, related to the methodology employed by TCDC when imposing the natural character overlay and its interpretation of what actually constituted ‘natural character’.
Port Jackson is at the northern tip of the Coromandel Peninsula.
What is natural character?
‘Natural character’ isn’t a defined term in either the RMA or high-level planning instruments like the CPS, but it is a matter of national importance which decision-makers must recognise and provide for. While ‘natural character’ is fact specific and exists on a kind of ‘naturalness continuum’, it isn’t the same as natural features or landscapes or amenity values generally – a view confirmed by both the RMA and CPS. The distinction between preserving natural character and protecting natural features and landscapes is an important one, and is easily missed in practice.
This distinction gives ‘natural character’ something of an elusive quality; its meaning can really only be pieced together by circumstance and, in the case of the Coromandel at least, the proposed RPS, which describes ‘natural character’ as “...the degree of naturalness of an area, as evidenced by the degree to which it possesses qualities and features that are products of natural...activities.”
Setting aside the politics, no-one would disagree that preserving our environment – including recognising and providing for the things that make it special – is critical.
It’s undeniably tricky when something as important as ‘natural character’ is uncertain or vague. Outside of case law, the only high-level guidance is from the CPS, which includes a list of matters which might be considered when determining what ‘natural character’ includes. Otherwise, determining what does and does not qualify as an area of natural character can be a fraught and haphazard process.
The proposed RPS required district plans to identify areas of high natural character in the coastal environment using specified criteria. These criteria set out both the biophysical characteristics and perceptual values that were to be used as the basis on which to identify these areas within the Coromandel. Many of these criteria required a physical assessment as opposed to a desktop analysis.
This was because the values of the site’s experiential attributes and habitat, along with its context and setting, could not be rigorously assessed from the relative comfort of an office environment. Accurately assessing these attributes and features required, in our minds at least, boots on the ground. We felt that assessing a site’s natural character required an evaluation of those sensory perceptions and biophysical characteristics unique to it. Such an assessment can be contrasted with a desktop landscape assessment, which is limited to assessing visual characteristics using resources like maps and photographs, and which is required when assessing natural landscapes.
Notwithstanding the difference between landscapes and natural character areas, we felt the recent Man O’War decision was relevant to assessments of the kind required as part of Variation 1 because, in the words of Justice Andrews, “the identification of outstanding natural landscapes drives the policies.” While Man O’War concerned the criteria needed to assess outstanding natural landscapes, it reinforced the importance of using objective and correct methodology when assessing areas for protection.
The section 42A report on Variation 1 noted that a large number of submitters had sought the removal of natural character overlays from their properties because of the presence of modified land cover and the belief that areas of forestry, farming, and human activity should be excluded from areas of high natural character. In response, TCDC argued that the determination of whether an area exhibited natural character required an overall judgement; one made “on balance”. TCDC said that it was common for coastal areas to have “pockets” of modified land and few attributes with either ‘high’ or ‘very high’ ratings.
While it’s true that land which has been modified can also exhibit natural character qualities, the level to which natural processes dominated the site must inform the degree of its overall naturalness. In the case of sites exhibiting highly modified forms as a consequence of managed human activity, the question must be whether some other natural characteristic exists that is so great it overcomes these modified qualities, justifying the high natural character overlay. In the absence of such a characteristic, the overlay cannot be sustained.
Conclusion
Preservation of natural character is a key requirement of the RMA, CPS and both regional and district planning instruments, as it should be.
However, difficulties and differences in applying the term ‘natural character’ now mean that it is time to provide some statutory guidance. In particular, is it time for clarity around how authorities assess whether certain areas exhibit ‘natural character’ qualities, and confirmation that preserving natural character and protecting natural features and landscapes are two distinct statutory requirements, requiring separate assessment methodologies. We think it is, and that doing so will help to preserve New Zealand’s vibrant and diverse environment.