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New Zealand Journal of Environmental Law |
Last Updated: 16 February 2023
1
Can the Law Protect Landscape Values?
DE Fisher*
The values of landscape are diverse and often in conflict in terms of the economic, ecological, aesthetic or spiritual. Traditionally, values such as these have been linked in legal terms to land, the ownership and use of land, and more recently the conservation of land and land-related values. Orthodox legal mechanisms such as rights of property have been unable to cope with the diversity of values involved in managing land and landscape. One example is the different perceptions of landscape between indigenous and non-indigenous groups within a society. Public policy is responding to some of these issues. Legal systems are also responding – internationally, constitutionally, nationally and locally. Landscape values are increasingly recognised in environmental management, resource management, land use planning, cultural heritage conservation, through native title, and occasionally in their own right. While there is no generic duty within the legal system to protect landscape values, there is an increasing range of mechanisms, many managerial and procedural in kind, that have the effect of attributing value in human activity and human decision-making to landscape.
1. INTRODUCTION
1.1 Law
One of the functions of a legal system is to indicate or prescribe with a reasonable degree of certainty and precision how those entitled to use land or to control its use may exercise their power to do so. Certainty and precision in the
*MA, LLB, PhD (Edinburgh). Professor of Law, Queensland University of Technology. Consultant, Phillips Fox, Lawyers. This paper was first presented at the 2nd International Symposium on Landscape Futures at the University of New England, New South Wales, Australia on 6 December 2001.
formulation of rules of law are essential for their enforcement through the legal system. In the absence of enforceability, propositions purporting to be rules of law are no more than statements of policy. If the subject matter of rules of law is “land”, then in theory at least there should be no difficulty in identifying the meaning of the term “land”. But even a simple word like “land” is problematical. Even more problematical if the term is translated into “landscape”.
Neither land nor landscape is a sufficient legal framework. Both are in a sense locational issues. A legal system frequently addresses an issue from international as well as national perspectives. National approaches reflect the political values of the system – founded where appropriate within a constitutional framework – in addition to its social and cultural values. Hence the relevance of the jurisdiction’s system of governance – the source of legislation, the accountability of the executive, the function of the courts – in a word, the rule of law. The recognition and protection of landscape need to be seen within this wider context.
1.2 Land and Landscape
Let us begin with land. The action plan put together by the United Nations Conference on Environment and Development in 1992 and known as Agenda 21 said this:1
Land is normally defined as a physical entity in terms of its topography and spatial nature; a broader integrative view also includes natural resources: the soils, minerals, water and biota that the land comprises.
If buildings and constructions physically linked to the soil are added to this interpretation, then it approximates to the legal conception of land.
The extension of “land” to “landscape” introduces an entirely different perspective. The idea of landscape has been described “as simultaneously physical reality and a social or cultural construct”.2 It is the notion of landscape as a social or cultural construct that causes immense problems for a legal system. No longer is the law concerned simply with a physical reality that can presumably be identified, assessed, measured, developed, protected or simply left alone. Even if nature is regarded by the law as a component of this physical reality, as indeed it is in many legal systems, then the introduction of ecological
or environmental values, although challenging, is not beyond the capacity of a legal system. It is therefore the introduction of specifically cultural values in relation to land and landscape that has by virtue of their very nature caused problems for the law.
The origins of the word “landscape” itself are instructive. It has, for instance, been described as “an area belonging to and shaped by a people”3 and as “the element of place – province, territory, district or tract of land”.4 The notion of place is thus essential but it is place within a cultural context. Traditionally the law has been comfortable with land as a physical reality within reasonably clear and identifiable boundaries of delimitation. In the absence of such definition, a legal system lacks the intrinsic certainty and precision that it craves.
The introduction of the notion of space makes it no easier for the law.
According to one commentator:5
Place is space made culturally meaningful, and in this sense it provides the context and symbolic cues for our behaviour. Place, however, is not just a setting for behaviour but an integral part of social interaction and cultural processes.
Place – just like landscape, space and land – means different things to different people in different contexts. Thus space and landscape generate a sense of cultural identity. Much depends on the cultural context of the people involved. Thus, even if there is a growing sense of European culture:6
The reality of Europe has long been of making differences between Europeans on the basis of certain common inheritances that have been given distinctive casts in different places. So, even if a given landscape vista can be thought of as having a certain ‘Europeanness’ to it, compared – say – to North American or African vistas, much stronger influences come from the national, regional and local contexts in which the particular vistas are embedded.
There are numerous examples of the diversity of perceptions of landscape depending upon the cultural context of the individuals or groups involved. Thus, while place may be localised, its cultural significance may be much more extensive. Let us look at two examples from different parts of the world and in relation to different cultures.
All Natural Things: Archaeology and the Green Debate, Oxbow, Oxford, 1992, at 23.
Consider first the Navajo in North America. “The importance American Indians traditionally put on connecting with their place,” it has been suggested, “is not a romantic notion which is out of step with the times. It is rather the quintessential ecological mandate of our times.”7 The cultural significance of land and landscape for the Navajo has been well documented. Thus, in particular:8
Hilltops where people place offerings and pray for mental and physical wellbeing were often named, as were hilltops and springs where people offer sacred stones and prayers for rain. Still other significant places where people gather medicines and other materials for curing and other ceremonies, including old cornfields where they gather sand for sand paintings and other religious uses and offer prayers for rain and plentiful crops. Cairns, where one places a stone or stick after saying a prayer, were also named, as were places where curing ceremonies have been performed, former home sites, corrals, sweat houses and family graves.
Land and landscape are of no less cultural significance for the Scots in Great Britain. Thus:9
The Kilmartin Glen in Argyll is very rich archaeologically. The area is particularly well-known for its funerary and ritual landscape of Neolithic and Bronze Age date, comprising burial cairns, a stone circle, a henge and standing stones. There are also significant monuments of later date, including the hill fort of Dunadd, an early capital of the Scots. It is in addition an important scenic area with considerable natural heritage interest. Other features of natural and historic interest abound, including several forest trails and the Crinan Canal, a major monument to the industrialisation of Scotland.
Landscape is an equally significant element of urban communities. Thus:10
Most of us must identify with manmade structures, with a built environment. These structures then become the carriers of our culture, ordering our world,
giving us common symbols, integrating us as individuals into a visible and meaningful environment. The structures provide a physical framework for daily use and an associational framework connecting us to the history, ideology and civic systems of our culture.
Structures made by human beings, whether in a rural or urban location; changes and adaptations made by human beings to natural landscapes; and natural landscapes, these are all part of the environment – whatever their values and uses – and it is ultimately the relationship between environment in this sense and the cultures of individual groups and communities that creates significant challenges for a legal system. A legal system – to compound the problem – is itself a part of the culture of the group or community in question.
The uses of land and landscapes are dynamic elements of the environment. They are constantly, if perhaps imperceptibly, changing. It is no doubt human activity that produces the most obvious and the most significant changes to landscape. Many of these changes are induced by economic development, and the law as an element of culture has itself responded to these changes. It continues to do so and it is these responses that are worth detailed consideration.
1.3 Notions of Property
The use of land and the perception of landscape have been inextricably linked to a range of notions of property. The relationship between law and land reflects the culture of the society in question and this includes its social and economic values. For example, rights and interests in land and land-related resources, including landscape, in a society of hunters and gatherers or in a society of nomadic pastoralists are different from those in a society of agricultural cultivators and even more different in a society of traders and merchants. Notions of common property, where everyone has a right of access to the resource, and of rights of common, where a number of individuals have a right of access to a resource belonging to someone else, are more indicative of a subsistence economy while individual rights of property in relation to land within defined boundaries are indicative of commercial and industrial economies.
It is simplistic and unrealistic to contemplate only subsistence, commercial and industrial economies. Many societies exhibit characteristics of different stages of economic and social development. In Australia and Canada, for instance, where rights and interests in land have been formally based since colonisation upon concepts of property within defined boundaries, the subsequent recognition by the common law of native title or, more accurately, of rights and interests in land based upon traditional usage and custom, has added an additional dimension or perspective to land and landscape. The recognition of
native title in Australia, for example, has particular significance for landscape. There is an integrated or holistic concept of place:11
In Aboriginal terms, all landscape is someone’s home. Land, country, camp, and home are encompassed by a single term in Aboriginal languages. The places represented in tradition-oriented Aboriginal art are usually the concentration points for intense religious, political, familial and personal emotions ... Apart from any wider meanings they might have, many of the myths are centrally concerned with underpinning the rights of particular human groups to specific areas of land.
While landscape is linked to land, landscape does not fit comfortably within some of these notions of property. Some, but not necessarily all, of the values associated with landscape are enjoyed and appreciated by members of the community at large. If the land associated with the landscape is the subject of individual rights of property, then these rights of property are unlikely to be a suitable or effective mechanism through which the values of landscape may be protected. But if landscape values are recognised through a form of common property or a system of native title, there is a greater opportunity for their legal protection. But can these different notions of property exist side by side in a legal system? Yes: but most legal systems are only beginning to come to grips with this issue. It is for reasons such as these that different approaches have been adopted by the law in various jurisdictions to the recognition and protection of landscape values. Notions of property cannot be ignored. They lie at the foundation of the system. But the superstructure may be just as important as the base.
How then does the law recognise and protect landscape values? It has been suggested that the values associated with landscape and indeed to some extent with land are not necessarily linked to areas constituting space and place that have defined boundaries. Hence systems of law that depend upon territorial boundaries either in international or national terms are unlikely to provide satisfactory responses. It is thus not surprising that international law and national systems of law have increasingly attempted to recognise and protect landscape values according to criteria that are not based upon defined territorial boundaries. Similarly, cultures are not defined in terms of territorial boundaries. It is therefore the cultural perspectives of landscape values rather than the economic value of land and landscapes that have generated a quest for legal solutions beyond rights of property – particularly individual rights of property.
11 Sutton, P, “Dreamings” in Sutton, P (ed), Dreamings, the Art of Aboriginal Australia, Viking, Ringwood, 1989, at 17 and 18.
2. INTeRNaTIONaL Law: eNVIRONmeNTaL aND CULTURaL RIghTs
2.1 historical Foundations
Let us begin with an examination of international law. It was not until the early 1970s that the international community began to take a serious interest in the conservation and protection of the environment in general. Up until then, it had been interested only in one or two more specific aspects of degradation of the international environment: particularly pollution of the seas by oil and pollution of the atmosphere by nuclear radiation. In effect, states within the international community were largely free to exercise their rights of sovereignty over their territory and their natural resources in ways largely unconstrained by international law. This has changed quite dramatically over the last 30 years.
The foundations for the development of contemporary international law were set essentially in 1972 in accordance with the principles stated in the Stockholm Declaration on the Human Environment of that year.12 The focus of the World Charter for Nature of 1982 was the conservation of nature.13 The foundations for the current policy of ecologically sustainable development were laid in 1992 at the United Nations Conference on Environment and Development held in Rio de Janeiro in that year.14 The propositions in each of these three instruments are generally regarded as statements of principle recognised by the international community rather than rules of law binding upon the international community. Significantly for present purposes, however, none of these three instruments deals specifically with the values associated with landscape. This is not to suggest that landscape values were necessarily excluded. Indeed, such values might be relevant as part of the notion of environment or nature.
2.2 The Draft Covenant
The Draft International Covenant on Environment and Development15 presented to the United Nations in 1999 goes somewhat further towards recognising landscape values. Although this instrument does not create international rights and obligations yet, it is persuasive evidence of the principles of international law beginning to be recognised if not already recognised by the international
community. Articles 18 to 20 of the Draft Covenant place obligations upon states relating to natural systems and resources. Article 18 deals specifically with soil; article 19 with water; and article 20 with natural systems. Although each of these three natural resources is linked in one way or another to landscape, there is no specific reference to landscape.
However, article 22 is concerned specifically with cultural and natural heritage. It states:
Parties shall take all appropriate measures to conserve or rehabilitate cultural and natural monuments, and areas, including Antarctica, of outstanding scientific, cultural, spiritual, or aesthetic significance and to prevent all deliberate measures and acts which might harm or threaten such monuments or areas.
This amounts to an obligation upon states in the international community to take all appropriate measures to conserve areas of outstanding cultural, spiritual or aesthetic significance and to prevent all deliberate measures and acts which might harm these areas. The commentary attached to article 22 indicates that the conservation of these areas is in the interests of humanity as a whole and notes that:16
Major cultural monuments and areas, including ancient cities and cultural landscapes, as well as natural areas that are important because of their scenery or scientific value are included.
2.3 The world heritage Convention
The specificity of this approach is entirely consistent with developments that had already taken place in international law as distinct from international policy. The first and probably the most significant development in this area took place in 1972 – the year of the Stockholm Conference – on the adoption by the General Conference of the United Nations Educational, Scientific and Cultural Organisation of the Convention for the Protection of the World Cultural and Natural Heritage17 in Paris. Significantly, article 5(d) of this Convention places a duty upon state parties to the convention to endeavour, in so far as possible and as appropriate for each country, to take the appropriate legal measures necessary for the identification, protection, conservation, presentation and rehabilitation of the cultural and natural heritage situated on its territory.
Articles 1 and 2 of the Convention define cultural heritage and natural heritage for the purposes of the Convention. The essential criterion for protection is “outstanding universal value” from a number of different perspectives. The relevant perspective for sites as part of “cultural heritage” is stated to be “the historical, aesthetic, ethnological or anthropological points of view”.18 There are three components of “natural heritage”. The perspective for natural features is “the aesthetic or scientific point of view”.19 For geological and physiographical formations and the habitat of threatened species it is “the point of view of science or conservation”.20 It is, however, the third that is most important for present purposes:21
Natural sites or precisely delineated areas of outstanding universal value from the point of view of science, conservation or natural beauty.
While landscape as such is not included in these interpretations, nevertheless the values of landscape are impliedly included in the relevant perspectives prescribed by the convention. Article 5(d), moreover, has been held by the High Court of Australia to constitute a sufficiently certain and precise legal obligation to sustain the constitutional enactment by the Parliament of the Commonwealth of Australia of legislation dealing with world heritage areas, including their landscape values, in Australia.22
2.4 The ILO Convention
While the 1972 Convention for the Protection of the World Cultural and Natural Heritage applies to the heritage of all cultures, the Convention adopted by the General Conference of the International Labour Organisation in 198923 applies only to indigenous and tribal peoples in independent countries. According to article 5 the purpose is to recognise and protect the social, cultural, religious and spiritual values and practices of these peoples. This Convention both directly and indirectly recognises the importance of land and landscape for the indigenous and tribal peoples whose culture is recognised and protected. In particular, article 13 provides that governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with
the lands or territories which they occupy or otherwise use, and in particular the collective aspects of this relationship. Article 13 in conjunction with article 14 goes on to emphasise that the concept of land and territory for these purposes is not restricted to areas within narrowly defined boundaries – either in terms of rights of property or rights of occupation. The emphasis is upon “the total environment of the areas” with which the peoples are concerned.
2.5 The antarctic Treaty
Landscape has been recognised in a similar fashion in three other sets of international arrangements. The Protocol to the Antarctic Treaty on Environmental Protection adopted in 199124 was prompted by the need for a comprehensive regime for the protection of the Antarctic environment and dependent and associated ecosystems in the interests of mankind as a whole. Article 3 sets out a number of environmental principles that relate to the protection of the environment in Antarctica by a system of planning. Thus article 3(2)(vi) provides that:
Activities in the Antarctic Treaty area shall be planned and conducted so as to avoid degradation of, or substantial risk to, areas of biological, scientific, historical, aesthetic or wilderness significance.
Clearly landscape values are part of this obligation.
2.6 The eIa Convention
More specifically, the Convention on Environmental Impact Assessment in a Transboundary Context concluded in 199125 directly contemplates landscape values. This Convention requires the establishment of environmental impact assessment procedures in certain circumstances. Critical to this requirement is the interpretation given by article 1(vii) of the Convention to “impact”. This means:
Any effect caused by a proposed activity on the environment including human health and safety, flora, fauna, soil, air, water, climate, landscape and historical monuments or other physical structures or the interaction among those factors; it also includes effects on cultural heritage or socio-economic conditions resulting from alterations to those factors.
Thus the effect of a proposed activity on landscape is part of an environ- mental impact assessment. Since the Convention is dealing with transboundary impacts, this contemplates the impact of a proposed activity in one state upon the landscape of another state.
2.7 The Civil Liability Convention
The Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment adopted in 199326 is an instrument of the Council of Europe designed to provide for the harmonisation of national laws on environmental liability among members of the Council. One of its purposes as stated in article 1 is to ensure adequate compensation for damage resulting from activities dangerous to the environment. Importantly, landscape is part of the environment for this purpose. The interpretation of “environment” in article 2(10) includes abiotic and biotic natural resources, property forming part of cultural heritage and “the characteristic aspects of the landscape”. How to distinguish the characteristic aspects of the landscape from the landscape generally is no doubt a matter of some practical difficulty. Even more difficult is the task of placing a value upon the characteristic aspects of the landscape with a view to determining adequate compensation for damage to those aspects of the landscape.
2.8 The Conventions about architectural and archaeological heritage
The interest of the Council of Europe in cultural heritage is further demonstrated by the adoption of two other more specific instruments: the Convention for the Protection of the Architectural Heritage of Europe 198527 and the European Convention on the Protection of the Archaeological Heritage 1992.28 Both are concerned with identification, recognition of values, and measures for protection and conservation.
Architectural heritage and archaeological heritage overlap for the purposes of these two Conventions. Architectural heritage comprises three elements: monuments, groups of buildings, and sites. While social values are an element of each of these three, it is the interpretation of “sites” in article 1(3) of the 1985 Convention that is most important:
The combined works of man and nature, being areas which are partially built upon and sufficiently distinctive and homogenous to be topographically definable and are of conspicuous historical, archaeological, artistic, scientific, social or technical interest.
It is the reference to distinctive and homogenous areas comprising works of man and nature that renders this interpretation particularly significant.
The archaeological heritage on the other hand is defined in article 1(3) of the 1992 Convention to include “structures, constructions, groups of buildings, developed sites, moveable objects, monuments of other kinds as well as their context, whether situated on land or under water”. It is the reference to the context of these elements of the archaeological heritage that is important. Since archaeological heritage is seen to be among others an instrument for historical and scientific study, it would seem clear that the context includes the social and cultural context in addition to its physical context.
2.9 International Duties
These examples of the relevance of landscape in international law have ap- proached landscape from the point of view of either physical space or a cultural construct of physical space. Each is a meaningful and useful approach. The focus of these legal provisions is the establishment of duties of one kind or another with a view to the recognition, protection and conservation of landscape. While it is for each state to determine how best to implement these obligations, the emphasis is upon the creation of obligations to refrain from activities detrimental to landscape. There is no doubt that these obligations placed by international law upon states will be passed on to individuals, including corporations, in the states in question. Yet it is unlikely that any such regime will confer rights to landscape upon individual members of the community. The essence of these regimes is the creation of duty.
3. INTeRNaTIONaL Law: hUmaN RIghTs
3.1 The Nature of human Rights
There is a different approach to landscape emerging in international law in the context of the recognition and enforcement of human rights. Human rights are essentially the fundamental rights available to individuals within a community. Whether cultural rights and rights of the kind already discussed are human rights in this sense is a debatable issue. It may be that human rights of this kind are less rights of individuals within the community and more rights of groups
of individuals within the community. If this is so, then it may be that a right to landscape may emerge in international law as a collective or group right rather than an individual right. In this respect the right to landscape, if there is one, emerges from the collective right of a group to a particular lifestyle rather than a right to landscape in itself.
The source of inspiration is article 27 of the International Covenant on Civil and Political Rights of 1966.29 It states:
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.
Clearly this right is available to minorities within a state. It is available to individuals but individuals in community with other members of their group. The key term in the article is “culture”. There would seem little doubt that culture involves lifestyle and, if lifestyle involves landscape, then landscape is included within the context of article 27.
3.2 The sami in Finland
One of the mechanisms for recognising but not necessarily enforcing rights of this nature is through the deliberations of the United Nations Committee on Human Rights. In their examination of a claim that Finland had infringed article 27, the Human Rights Committee concluded that the amount of quarrying that had already taken place on the slopes of Mount Riutusvaara in northern Lapland did not constitute a denial of the Sami’s rights under article 27 to enjoy their own culture.30 The basis for the claim was that the quarrying of stone on the flank of the mountain and its transportation through their reindeer herding territory would violate their right to enjoy their own culture which has traditionally been and remains essentially based on reindeer husbandry. The Human Rights Committee was, however, concerned about the effect of increased quarrying activities. Significantly, it was stated:31
Furthermore, if mining activities in the Angeli area were to be approved on a large scale and significantly expanded by those companies to which exploitation permits have been issued, then this may constitute a violation of the authors’
171.
rights under article 27, in particular of their right to enjoy their own culture. The State party is under a duty to bear this in mind when they are extending existing contracts or granting new ones.
The use and availability of land were intrinsic to the approach adopted by the Human Rights Committee. Similar reasoning may well apply to article 27 if landscape is perceived to be so closely associated with land and lifestyle. In such circumstances article 27 is apt to recognise and protect landscape values.
3.3 The sami in Norway
The standards of international law are relevant not merely for the purposes of international disputes but also for disputes within nation states. In the Alta case in the Supreme Court of Norway it was claimed that a large hydro- electric development by the state affected a vital section of the core area of Sami habitation in northern Norway.32 The arguments put to the Supreme Court were based upon the socio-cultural effects of ecological change and the need to comply with the fundamental principles of the international law of human rights – in this case based upon article 27 of the International Covenant. The Supreme Court seemed to have no difficulty in holding that article 27 applied to the circumstances of the case. However, the rights of the Sami protected by article 27 had not been infringed because their reindeer economy had not been undermined to such an extent that their culture would be threatened.33
3.4 The ainu in Japan
The Sapporo District Court in Japan was faced with a similar issue in the Nibutani Dam case decided in 1997.34 This involved a proposal to construct a series of dams in Hokkaido for a number of purposes including flood control, river flow correction, irrigation, water supply and electrical power generation. Land was confiscated under the relevant legislation. The court reached the view that if the project were to go ahead, it would impose hardship on the Ainu people living in the Nibutani area or it would greatly impact on their lifestyle and culture. The Ainu are a minority within the meaning of article 27 of the International Covenant. The court pointed this out:
The Ainu people called their territorial space ‘ioru’ as an individual geographic unit where they could carry out their lives. [The ioru describes a single unit of geographical vicinity, larger than the village, including the village’s hunting, gathering and fishing grounds, and its sacred places.] With their homes located there, the people of an ioru established production sites and gravesites for communal use. Other special places such as mountains and rivers with mythical traditions existed for an ioru, and gave structure to Ainu people’s lives. For the Ainu, because the ioru represented where one was born, lived, and died, people living there were bound together in a ‘common-roots grouping’. Accordingly, we recognise that the ioru, including the nearby mountains and rivers having mythical traditions, is not merely a historical legacy, but something for which present-day efforts to sustain its ethnic culture are extremely important.35
This suggests quite clearly that landscape in both the physical and cultural senses of the word is highly relevant to the culture of the Ainu.
This being so, the court went on to consider the consequences if the project were to go ahead. It was concluded:36
The environment in the Nibutani area, which is known as an Ainu holy place, a place where Ainu culture is rooted, and the birthplace of Ainu ethnic scholar- ship, will undergo great change. Without a doubt, it will become markedly more difficult to keep for future generations the many ethnic, cultural, historical and religious values of the Ainu people, who are an indigenous minority people closely associated with the area with a spiritual culture founded upon togetherness with nature.
Once again, the wider concept of landscape permeates these comments. The court came to the conclusion that the confiscatory rulings were unlawful. However, much of the development had gone ahead and the damage been done. There was therefore no real possibility of an appropriate remedy in the circumstances.
3.5 human Rights in europe
The International Covenant on Civil and Political Rights of 1966 was preceded by the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950.37 Paragraph 1 of article 8 of this Convention provides:
Everyone has the right to respect for his private and family life, his home and his correspondence.
On the face of it this has nothing to do with landscape, although it might by inference relate to land or the use of land. Nevertheless, the way in which the European Court of Human Rights has interpreted this provision indicates its potentially broad reach and scope. Two decisions of the European Court of Human Rights used article 8 to protect members of a community from environmental pollution.38 In both cases it was air pollution involving injury to health. Significantly, however, the court did not limit infringement of the right in article 8 to injury to health. In one case it was stated:39
Naturally, severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health.
Perhaps more significant for present purposes is a series of decisions involving the gypsy community in England.40 The decisions on the admissibil- ity of an application are closely linked to the law of the state party to the Convention – in this case the United Kingdom. In this particular case the law in the United Kingdom was rather complex and turned on many of the technicalities of the planning legislation. Essentially, in one case the applicant argued that he could not lawfully station his caravan in any place without infringing the law. This included land which he had purchased and for which he had sought unsuccessfully to obtain planning permission. The reasons for the refusal of planning permission were essentially that the use of the land would have an undesirable environmental impact. The attitude of the Commission was expressed in these words:41
The Commission finds, first of all, that the measures taken in respect of the applicant’s occupation of his land, where he has lived with his family for almost
(1998) 26 European Human Rights Reports 357 (European Court of Human Rights).
20 years, constitute an interference with his right to respect for his family and private life and his home. It also notes in that respect that the applicant is a gypsy for whom living in a caravan is an integral and deeply felt lifestyle and that this traditional lifestyle attracts the guarantees of article 8 as concerning their private life.
The Commission then had to go on to decide whether a balance had been struck between the general interests of the community under the planning system and the requirements of the Convention in relation to the protection of fundamental human rights. Largely for technical reasons relating to the planning law of England, this balance had been achieved. The applicant’s claim was therefore inadmissible.42
4. CONsTITUTIONaL PROTeCTION OF LaNDsCaPe
4.1 general
Let us turn to the second of our fundamental questions: whether and how the constitutional frameworks of states attempt to recognise and protect landscape values. Much depends upon the fundamental constitutional position within each state. For example, in the United Kingdom there is no formal written constitution and any fundamental rights derive from international law or from European law when rules of international law, rules of the Council of Europe or rules of the European Union have been incorporated within United Kingdom law. The United States of America, Canada and South Africa, by comparison, have formal constitutions and formal bills of rights. It is, however, a matter of detail whether and to what extent landscape values are incorporated in these instruments. In Australia on the other hand there is a constitution setting out the legislative powers of the Commonwealth but there is no bill of rights. Any rights which the High Court of Australia has implied within the constitutional framework of the Commonwealth do not relate to land and landscape values. Within Europe and Asia there are multiple approaches. There is therefore no single model or even a series of models according to which the recognition and protection of landscape values can be assessed. It is therefore necessary to consider a series of potentially unrelated examples.
4.2 Pennsylvania
While the Constitution of the United States of America contains no fundamen- tal rights about nature or culture, except perhaps in relation to religion, the
constitutions of a number of the states include fundamental rights about these matters. A particularly instructive example is article 1(27)(1) of the Constitution of Pennsylvania:43
The people have a right to clean air, pure water and to the preservation of the natural, scenic, historic and aesthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.
Not only does this provision create a right to the preservation of landscape values: it also deems these “public natural resources” to be common property. Even more fundamental is the imposition of a duty upon the Commonwealth of Pennsylvania as trustee to conserve and maintain these resources. The right vested in the people is thus supported by a duty imposed upon the Commonwealth. The creation of the two in conjunction with each other effectively renders the values contained within this right enforceable as a matter of law.
4.3 China
At the other end of the spectrum, at least in practical terms, is the Constitution of the Peoples Republic of China of 1982. Article 9 provides that all mineral resources, waters, forests, mountains, grasslands, unreclaimed land, beaches and other natural resources are owned by the state. The context within which this provision has effect clearly implies that natural resources are owned by the state to ensure their development in the interests of the people at large. Land and landscape therefore have a spatial connotation but nothing more. However, article 22 provides:
The State protects sites of scenic and historical interest, valuable cultural monuments and relics and other significant items of China’s historical and cultural heritage.
This is a mere statement of function or policy and not of law. Even if it were a proposition of law, the nature of the Chinese legal system is such that it is unlikely, probably impossible, that it would be enforceable against the state. From this it may therefore be concluded that there is no right that recognises
or preserves landscape values. If such values are recognised and preserved, it is simply a matter of policy and administration on the part of the relevant executive agencies of the state.
4.4 India
India, again, is remarkably different. The Constitution of the Union of India contains a series of fundamental rights vested in individuals within the com- munity; it creates a series of directive principles of state policy; and it imposes a number of fundamental duties upon individual citizens. Directive principles of state policy relate to the preservation of cultural heritage and to the protection of the environment. The principle of environmental protection in article 48-A, wide enough perhaps to cover landscape values, is supported by the fundamental duty placed upon citizens by article 51-A(f ) and (g) to protect cultural heritage and the environment. Thus:
It shall be the duty of every citizen of India –
(f) ) to value and preserve the rich heritage of our composite culture(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.
These provisions in the Constitution have encouraged the Supreme Court of India to take a very proactive role in protecting the environment. However, in doing so the Supreme Court has been influenced as much by international law developments and by fundamental principles underlying the Indian legal system as by these constitutional precepts. Indeed, in one of the leading cases concerning the pollution of the River Ganges, the discourse of one of the judges of the Supreme Court specifically was based upon the spiritual, cultural, ecological and economic values of the river. Clearly there are issues of policy here. But even more importantly, the court took into account the fundamental values of the river itself to justify its interventionist approach. Thus:44
The river Ganga is one of the greatest rivers of the world, although its entire course is only 1560 miles from its source in Himalaya to the sea. There are many rivers larger in shape and longer in size but no river in the world has been so great as the Ganga. It is great because to millions of people since centuries it is the most sacred river. It is called ‘Sursari’ river of the Gods, ‘Patitpawani’ purifier of all sins and ‘Ganga Ma’ Mother Ganges. To millions of Hindus, it is the most sacred, most venerated river on earth. According to Hindu belief
and mythology to bathe in it, is to wash away guilt, to drink the water, having bathed in it, and to carry it away in containers for those who may have not had the good fortune to make the pilgrimage to it, is meritorious. To be cremated on its banks, or to die there, and to have one’s ashes cast on its waters, is the wish of every Hindu. Many saints and sages have pursued their quest for knowledge and enlightenment on the banks of the river Ganga.
Nothing could more forcefully demonstrate the spiritual and cultural asso- ciations of a natural resource and indeed of a landscape.
4.5 Bavaria
The significance of constitutional protection depends upon the status afforded to the provision by the courts of the jurisdiction in question. The Constitution of Bavaria – one of the German Lander – contains a very impressive provision:45
Everyone is permitted to enjoy the wilderness and to seek recreation in open country, particularly to enter forest and alpine pasture, to travel over the waters and to appropriate wild growing fruits of the forest to the extent which is customary. In doing this, everyone is obliged to take good care of nature and countryside. The state and the municipalities are entitled and obliged to keep open the access to mountains, lakes, rivers and other resources of the countryside for the general public and if need be, to clear them by means of restrictions on private property, or by laying out footpaths and recreation areas.
Clearly there is a right conferred upon everyone in the form of a permission. To this is linked a correlative obligation to care for the land and landscape. This is supported by a limited duty upon the state to keep these facilities open for the public. However, attempts to create from these provisions a right of protection against infringements on nature and the countryside have been “frustrated by the Bavarian Constitutional Court’s holding that the provision does not imply a subjective fundamental right to the protection of nature, but is only a statement of public policy of objective character”.46
4.6 Portugal
The Constitution of Portugal has gone somewhat further by including within it a
fundamental right and a statement of public policy. According to article 66(2)(c) it is the duty of the state to:47
Create and develop natural reserves and parks and recreation areas and classify and protect landscapes and sites so as to ensure the conservation of nature and the preservation of cultural assets of historical or artistic interest.
And according to article 9(e) one of the basic tasks of the state is:48
To protect and enhance the cultural heritage of the Portuguese people, defend nature and the environment and scarce natural resources.
There is a clear duty on the state to classify and protect landscapes and sites so as to ensure the conservation of nature. It is thus not surprising that the judicial system of Portugal has been able to provide remedies to ensure the effectiveness of provisions such as these.49
4.7 greece
One of the most successful jurisdictions in seeking to recognise and protect landscape values through the provisions of a constitution has been Greece. This has been achieved, it would seem, because of the clarity of the provision in the Constitution and the positive way in which it has been interpreted and applied by the Council of State.
Article 24(1a) of the Constitution provides that protection of the natural and cultural environment is the duty of the state, and in paragraph 6 it goes on to state:50
Monuments, areas and elements of cultural tradition are under State protection according to specific laws which provide for the necessary restrictions on property rights and for the manner and kind of compensation owed to private owners.
These provisions have been relied upon in a number of decisions by the Council of State and three of these decisions are worth consideration.
One decision concerned a proposal to construct a road next to the walls of
a holy monastery on the island of Spetses. Although freedom of religion was relevant, article 24(1a) placed a direct duty upon the state to take the necessary measures to protect the natural and cultural environment. There was no need to rely upon other legal restrictions. The Council of State clearly took a wide view of landscape so as to include not only its spatial but also its religious and cultural connotations. Thus:51
Places used for religious purposes, such as holy temples and monasteries of the Church of Greece are an inalienable part of the Greek Orthodox tradition and history, and therefore essential elements of the cultural heritage of the Greek people. State and local authorities have the duty to ensure protection of places used for religious purposes so that their sacredness is not offended, their religious character is preserved and monastic life is secured.
Accordingly the authority to construct the road was revoked.
Article 24(1a) of the Constitution is concerned as much with the natural environment as it is with the cultural environment. The two, of course, are often closely interrelated in practice. A decision of the Council of State in 1998 was concerned with the protection of seashores of small islands in the Greek archipelago. In this case the protection afforded was based upon three factors:
There were therefore major constitutional impediments to the undertaking of development in these areas and in this case sports activities and associated installations were found to be illegal.52
Another decision of the Council of State in 1998 was concerned with issues of landscape. More particularly, article 24 of the Constitution was applied so as to impose a duty upon the state to protect the mountain of Ymittos near Athens. Significantly, it was important to protect the whole of the area and not just portions of it. The proposed activities that contravened the protection afforded by the Constitution included these:
Some of these were specifically regarded as illegal because they caused “aesthetic pollution”.53
5. LaNDsCaPe maNagemeNT
5.1 Introduction
While the constitutions of a small number of states, for example Greece, pro- vide direct constitutional protection for environmental and cultural values, thereby including landscape values, most do not. In this case landscape values are recognised and protected, if at all, either by the general principles of law of the jurisdiction in question or by legislation that affords some degree of protection to them. There are, of course, myriad ways of doing this.
In some legal systems ownership of the relevant resources is vested in the state. This can be incorporated in the constitution as in the cases of the Commonwealth of Pennsylvania in the United States of America and the Peoples Republic of China. However, it need not be so. It is sufficient if legislation confers the relevant rights of ownership upon the state or an agency of the state. This simply has the effect of ensuring that no other person or institution is involved in the management of the resource. However, in the absence of any other provisions, it does not mean that ownership by the state necessarily involves protection of the values in question. If ownership by the state is unregulated, then it is for the state as a matter of policy to decide what to do with these resources. However, it may be that the legislation places restrictions or responsibilities upon the state. In this case it becomes a question whether and to what extent these are enforceable against the state. Judicial review or judicial supervision of executive decision-making is a feature of some jurisdictions but clearly not all.
It is common therefore for other instruments to be used to achieve the recognition and protection of landscape values. For most purposes the general principles of civil law and common law have proved not very effective – largely because they are linked to issues of property and land in individual ownership. According to the common law, for example, a view or a prospect is not by itself an interest that is either recognised or protected by the law. However, if there is an unlawful interference with the use of land and that unlawful activity has the effect of restricting a view or a prospect, then a remedy under the common law
may be available. For example, if an owner or occupier of land puts together a construction without a required approval or in such a way that constitutes a nuisance, then there may be a remedy.54 It must be emphasised, however, that the remedy is not for the obstruction of the view or the prospect but for the unlaw- ful action of construction. It is because of the inadequacies of the common law such as these that recognition and protection of landscape values have become essentially a matter of legislation.
5.2 models of management
There is no one model that has emerged in recent years as the most effective way of recognising and protecting landscape values. There are no doubt as many approaches as there are legal systems. Nevertheless, it may be possible to classify the approaches adopted by the several legislatures in five ways:
While this classification may in some respects be helpful, it needs to be emphasised that a particular jurisdiction may adopt more than one of these approaches. But this may lead to confusion and overlap. Moreover, all of these approaches must be seen to have effect against the background of any relevant international and constitutional arrangements that have already been discussed. There is regrettably no simple and clear approach that can be adopted in all circumstances.
5.3 Landscape and environment
The capacity of environmental protection legislation to recognise and protect landscape depends very much upon the interpretation afforded to environment by the legislation in question. The Environment (Protection) Act 1986 of India is concerned with protecting the environment from environmental pollution rather than with conservation of the environment in a wider sense. It is, moreover,
an example of governmental responsibility for environmental quality. The interpretation of “environment” in article 2 of the Environmental Protection Law 1989 of the Peoples Republic of China similarly emphasises the physical components of the environment and their protection from pollution.
While one of the purposes stated in article 1 of the Framework Act on Environmental Policy 1990 of South Korea is to prevent any danger and injury resulting from environmental pollution, it is concerned more widely to manage and preserve the natural and living environment. In this respect it is complemented by the Natural Environment Conservation Act 1991, one of whose basic principles according to article 2(4) is to protect “beautiful natural scenic places, invaluable natural scenery, various specimen areas of diversified ecosystem and natural resources of cultural and academic values”. Areas of the natural environment deemed appropriate for conservation are designated as a conservation area and managed for that purpose in accordance with the criteria in the legislation. While there is no specific category of landscape conservation area, it would seem that landscape values can be and indeed are expected to be recognised as a part of conservation areas generally.
Although section 24 of the Constitution of the Republic of South Africa of 1996 confers upon everyone a right to an environment that is not harmful to their health or wellbeing and a right to have the environment protected, it is only the National Environmental Management Act 1998 of South Africa that even indirectly contemplates the recognition of landscape values. This Act sets up a national strategy for managing rather than more directly protecting the environment and this is achieved by cooperative governance among all levels of government in South Africa and by an integrated environmental management programme. The whole strategy is governed by a set of principles, one of which is stated by section 2(2):
Environmental management must place people and their needs at the forefront of its concern, and serve their physical, psychological, developmental, cultural and social interests equitably.
This is consistent with the definition of “environment” given by section 1(1)(xi) of the Act. It includes the physical and biological surroundings of human beings and the interrelationships between these surroundings. It, however, includes “the physical, chemical, aesthetic and cultural properties and conditions” of the physical and biological elements that influence human health and wellbeing. Clearly, therefore, the aesthetic, cultural and social perspectives of the physical and biological environment are part of the concept. While they
are not given any priority within the system, there would seem little doubt that they are relevant to decision-making under this Act.
Queensland is one of the states within the Commonwealth of Australia. The object of the Environmental Protection Act 1994 is to protect Queensland’s environment while allowing for ecologically sustainable development.55 This is achieved by a number of mechanisms and one of these is to protect the en- vironment from unlawful harm. Harm is any adverse effect on an environmental value56 and an environmental value is a quality or physical characteristic of the environment that is conducive to ecological health or public amenity or safety.57 For this purpose, environment is given an extensive interpretation which includes the physical and biological elements of the environment.58 These are stated quite specifically to include people and communities. The concept of environment, moreover, incorporates the interrelationship between the physical and biological components of it and the social, economic, aesthetic and cultural conditions related to it.
Most importantly, however, for present purposes is this component of the environment included in section 8(c):
The qualities and characteristics of locations, places and areas, however large or small, that contribute to the biological diversity and integrity, intrinsic or attrib- uted scientific value or interest, amenity, harmony and sense of community.
It is this last element that renders landscape relevant and not only as physical reality but also as cultural context.
So much for the formal legislation: how does this approach work in practice? For this purpose let us examine two cases from the United States of America. In the Polygon case59 the superintendent of buildings of the city of Seattle in the state of Washington refused an application for a building permit because the project was inconsistent with the aims of the State Environmental Policy Act 1971 of that state. The procedure prior to this decision involved an environmental
impact statement which indicated a number of adverse environmental impacts including view obstruction. In the event, the most significant impact of the project was found to be visual.
The question of law was whether the environmental impact statement process was merely a procedural requirement or whether the legislation required substantive compliance with its aims. It was decided that the process not only serves an informational purpose but also confers substantive authority to act with reference to the environmental impacts disclosed by the process. Otherwise the policies stated in the State Environmental Policy Act would be thwarted and that approach would render the process a nullity.60
In this case, the most significant environmental impacts of the proposed project were “aesthetic in nature”.61 The policy expressed in the Act was the maintenance, enhancement and restoration of the environment, and the environment specifically included visual or aesthetic elements for the purposes of the legislation. The building permit was therefore lawfully refused for reasons associated with the impact on the landscape.62
In the Lincoln Harbor case63 the commissioner of the Department of Environmental Protection of the state of New Jersey had issued a waterfront development permit to complete the final build-out stage of Lincoln Harbor along the Hudson River. This decision was challenged by the American Littoral Society. It was argued that the commissioner had acted unlawfully because the regulation gave the power to issue waterfront permits to the Division of Coastal Resources. In substance, however, the American Littoral Society objected to the project because it would obscure the scenic view of the Hudson River and the New York city skyline from the approaches to the Lincoln Tunnel in the state of New Jersey. The existing vista was described as “spectacular” and its panoramic beauty would be substantially lost if the project were to go ahead.64
There were a number of technical legal issues for the court. However, for present purposes it is the subject matter of the regulations that is important. Significantly, some were not couched in prescriptive terms. Thus:
New coastal development that is not visually compatible with existing scenic resources in terms of large-scale elements of building and site design is discouraged.
And for this purpose “scenic resources” were defined to include “views of the natural and/or built landscape”.65 On the other hand, more prescriptively:66
The proposed structure must not block the view of dunes, beaches, horizons, skylines, rivers, inlets, bays or oceans that are currently enjoyed from existing residential structures, public roads or pathways, to the maximum extent practicable.
The evidence suggested that the landscape values protected by the regu- lations would be detrimentally affected by the project. The court made no decision on the merits of the proposal. It merely decided that the decision of the commissioner was unlawful and that the matter must be returned for determination in accordance with the regulations.67
5.4 Landscape and Resource management
The enactment of the Resource Management Act 1991 of New Zealand has required the management of natural and physical resources to be sustainable. In section 5(2) of the Act the expression “sustainable management” is stated to mean managing the use, development, and protection of natural and physical resources in a way or at a rate which enables people and communities to provide for their social, economic and cultural wellbeing and for their health and safety while achieving three other outcomes. It is, however, the reference to “social, economic and cultural” perspectives that is important.
In the Auckland Regional Council case68 the issue for the Environment Court of New Zealand was whether an area identified as warranting classification as an outstanding landscape should be included or not within a proposed new line of metropolitan urban limits. If it were included within the proposed line, it would be subject to urban development; if it were excluded, it would remain landscape.
The area in question was located north of the city of Auckland, within the area of the city of North Shore but also within the area of Auckland Regional
Council. Immediately to the east of the area lay the coastline and the Hauraki Gulf. The land fell into two catchments separated by a broad ridge. One drained to Long Bay and the other drained to Okura Estuary. As the court pointed out, the area encompassed a considerable diversity of landscape types, character and values. Apart from the ridges to the west, “it is also framed by a mixture of estuarine and sea margins, and inland valleys, all of which offer significantly greater visual drama and internal diversity than the open ridge lines. A good deal of the character of the subject land is also bound up in the sweeping views which it affords to the Hauraki Gulf, the Okura River and the outer reaches of the Weiti River”.69
The court looked in detail at the evidence in relation to the landscape quality of the Long Bay area and the Okura Estuary area. It was decided in fact that the landscape quality of the Okura Estuary, but not of the Long Bay coast, was so high and the likely visual effects of urbanisation such that the area should not be urbanised.
The critical question was whether that was consistent with the approach to decision-making mandated by the legislation. This involved an analysis of section 5 of the Act. Section 5 prescribes the promotion of the sustainable management of natural and physical resources as the purpose of the Act. The court concluded on the one hand that urbanisation of the Okura catchment area would not sustain the natural conditions of the Okura Estuary in the sense that there would be a significant deterioration of the quality of the waters and of their life-supporting capacity. On the other hand, urbanisation of part of the Okura catchment would consist of a use and development of natural and physical resources in a way to provide for the social and economic wellbeing of the community. This is often the nature of the conflict that the decision-makers must resolve. The court concluded:70
Yet the Okura Estuary possesses such high natural values, and urbanisation would necessarily have such serious adverse effects on them, that in our judgment urbanisation of land in its catchment would not be sustainable management of natural and physical resources as defined. We therefore hold that to achieve the defined purpose of the Act it is necessary (necessary in the sense of expedient or desirable) for the metropolitan urban limits to be defined so as to exclude the land in the Okura catchment.
The high natural values of the Okura Estuary were essentially those of
landscape. It was therefore the recognition of landscape values and the need for their protection that prompted the court to reach the decision that it did.
5.5 Landscape and Land Use Planning
Let us turn from the management of natural resources to the planning of the use of land. Planning takes a number of forms. It may be prescriptive in the sense that uses of land in specified zones are permitted or prohibited. It may be indicative in the sense that the desirable outcome or outcomes of the use of land are indicated in legal instruments. It may be normative in the sense that decisions about the use of land must reflect certain values. These approaches range from the formal to the flexible and from substantive controls to proced- ural controls. Let us consider some examples.
The city of Denver in the State of Colorado in the United States of America enjoys significant panoramic views of the mountains adjacent to the city. These views are protected by an ordinance enacted by the city council. In the Land- mark Land case71 the Supreme Court of Colorado had to determine the validity of an amendment to the ordinance which extended mountain view protection to a particular area within which certain developments were restricted.
There were a number of legal issues. However, for present purposes the question was whether the ordinance was rationally and reasonably related to a legitimate public purpose. In determining that it was so related, it was stated:72
It has been well established that protection of aesthetics is a legitimate function of a legislature. Especially in the context of Denver – a city whose civic identity is associated with its connection with the mountains – preservation of the view of the mountains from a city park is within the city’s police power.
In this case the protection of aesthetics – here the protection of panoramic mountain views – was regarded as a legitimate function of the city council. The legislation was therefore valid.
The approach adopted by the Integrated Planning Act 1997 of the State of Queensland in the Commonwealth of Australia is somewhat different. The Act sets the parameters of planning but it is planning schemes made under the Act that set out the detail of desired land use outcomes. By section 1.2.1 the purpose of the Act is to seek to achieve ecological sustainability. Ecological sustain- ability is a balance that integrates three elements and one of these elements according to section 1.3.3(c) is the maintenance of the cultural, economic, physical and social wellbeing of people and communities.
Planning schemes, which form the basis of development approval decisions under the Act, must deal with core matters described in paragraph 4 of Schedule 1 to the Act. These include valuable features which themselves include areas contributing to amenity and places of cultural heritage significance. The former are areas of high scenic value, physical features that form significant visual backdrops or that frame or define places or localities, and attractive built environments. The latter are described as areas or places of indigenous cultural significance or aesthetic, architectural, historical, scientific, social or technological significance, to the present generation or to past or future generations. There would appear little doubt therefore that landscapes not only as physical but also as cultural values are an essential part of this planning system. And so it has transpired.
In the Brisbane City Council case,73 the issue was whether the construction of 17 dwelling houses and their gardens should be permitted along the ridgeline of an escarpment in an area of considerable landscape value. The instruments comprising the relevant planning scheme approached this issue differently. The earlier strategic plan treated the area as subject to environmental and scenic restraints. More particularly, they were described in these words:74
These lands exhibit scenic values that are identifiable with the character of Brisbane and hence form an important landscape function. These areas typically include bushland and wetlands that occur throughout the city, the forested ridges and foothills on the eastern and western boundaries of the city and the Brisbane River and adjoining lands.
The later strategic plan indicated that fragmenting the land had detracted from its biodiversity and landscape values. This was no longer considered appropriate and the practice would be discouraged. Thus, while there was no
specific prohibition against the development of the ridgeline for residential purposes, the planning instruments clearly demonstrated the undesirability of this use.
The Planning and Environment Court determined as a matter of a fact:75
This ridge is not a dominant feature in the city compared to, say, the ridgelines of Mount Cootha. It is of significance in its own district. It remains the only relatively undisturbed escarpment and ridgeline close to the river as it winds its way through the city. It is the last remaining undisturbed ridgeline in the centenary suburbs. It is a relatively large area. It can be seen by those using the river and from the other side of the river. While the visual catchment is mainly a local one, it is likely to become more important, especially as the use of the river for transport and recreation increases.
In consequence, it was clear that the proposed development would result in a noticeable change to the visual quality of the ridgeline. Was this acceptable? The answer to this question was clearly negative. The reasons were to some extent ecological but for the most part based upon the landscape values sufficiently important to be preserved.
The approach to planning in England has traditionally been indicative rather than prescriptive. Any acknowledgment of landscape values was based largely upon the concept of amenity. Indeed, landscape in England was the product of rights of property in land. It has been concisely expressed by Summerton in these words:76
Just as the amenity of cities, towns and villages was before 1947 almost wholly the accidental result of the untrammelled interplay of social and economic forces within the framework set by property law, so too the appearance of the countryside in 1947 had similarly been generated.
Indeed, as he pointed out, although planning was concerned essentially with physical manifestations, “the underlying objective is as much to secure psychological and emotional objectives as purely practical ones”.77 It was the aesthetic quality of amenity that enabled this objective to materialise.
The legislation in England has more recently provided for specific
consideration to be given to values that clearly include landscape values. It is a two-stage approach. First, section 69 of the Planning (Listed Buildings and Conservation Areas) Act 1990 of England places a duty upon every local planning authority to determine which parts of their area are of special architectural or historic interest the character or appearance of which it is desirable to preserve or enhance, and then to designate these areas as con- servation areas. Second, once a conservation area has been designated as such, there is a duty imposed upon those exercising functions under the planning legislation to pay special attention to the desirability of preserving or enhancing the character or appearance of the conservation area.
The nature and extent of this obligation have been subject to judicial deter- mination. The courts in England are not concerned with the merits of planning decisions. Their jurisdiction is limited to judicial review of the decision-making processes. The issue for the courts, therefore, is largely whether the Secretary of State has reached a decision in conformity with the approach mandated by the legislation. The critical question in essence is what is meant by the requirement to pay special attention to the desirability of preserving or enhancing the character or appearance of a conservation area.
There are two issues. The first relates to special attention and the second relates to the desirability of preserving or enhancing the qualities of the area. In the Bath Society case78 the Court of Appeal made it clear that the duty to pay “special attention” is discharged by making the subject matter of the special attention the “first consideration for the decision-maker”.79 While this is no more than a transposition of words, there seems little doubt that the subject matter of the special attention is given priority in the decision-making process and it is, no doubt, substantive rather than merely procedural priority.
On the other hand, it is less clear what is the subject matter of this duty. The use of the word “desirability” also gives a sense of priority and significance to the subject matter of what is desirable. It is the subject matter of the test of desirability that creates problems. The legislature has clearly stated that it is desirable as a matter of principle, and indeed of policy, to preserve or enhance the character or appearance of a conservation area. So much is clear. The issue has been the meaning of the words “preserving” and “enhancing”. The expression “preserve” means essentially keeping intact the qualities of the area while the expression “enhance” connotes improving the qualities of the area. The second is a positive requirement. The difficulty has been the nature of the first requirement. The difficulty has arisen for the courts because the decision- makers have used different words from those in the legislation.
In the Steinberg case,80 the approach adopted was whether the proposed development would harm the character of the conservation area. The word “harm” does not appear in the legislation. As the court stated it, “harm is one thing; preservation or enhancement is another”.81 In the circumstances of this case, the rationalisation of the decision-maker proceeded on the basis that the character of the conservation area should not be harmed. However, the court indicated that this was not the same as paying special attention to the desir- ability of preserving or enhancing the character as well as the appearance of the area. “The concept of avoiding harm is essentially negative. The underlying purpose of [the provision in the Act] seems to me to be essentially positive.”82
This view, however, did not find favour with either the Court of Appeal or the House of Lords in the South Lakeland case.83 The court pointed out first of all that section 72(1) of the Act does not specifically require “that a development must perform a preserving or enhancing function”. This was taken to be a stringent test which “many an inoffensive proposal would have been inherently incapable of satisfying”.84 The court then looked at the words in their ordinary meaning and concluded that “character or appearance can be said to be preserved where they are not harmed”.85 And from that, it followed:86
The statutorily desirable object of preserving the character or appearance of an area is achieved either by positive contribution to preservation or by development which leaves character or appearance unharmed, that is to say, preserved.
These views were endorsed by the House of Lords. As a result of all these deliberations, three situations emerge in the context of section 72(1):
The first is a positive test; the second a neutral test; and the third a negative test. As a matter of law in England, therefore, to preserve is not to harm. Moreover, it is desirable not to harm the values of the area. Even more importantly, the fundamental requirement is to pay special attention to this matter. In other words, section 72(1) does not constitute in any way whatsoever a duty to preserve the values of a conservation area. It is at most a procedural duty. And this duty comprises a statement of priorities in decision-making and no more. Further, although enhancement is a positive function, preservation is not.
5.6 Landscape and Cultural Values
Landscape values may be recognised and protected in consequence of the recognition and protection afforded to culture and cultural values by a legal system. The law protects cultural values in many different ways. For present purposes, the protection afforded by the law to culture and cultural heritage may apply generally to all cultures and cultural communities within the jurisdiction. Alternatively, the law may protect the culture and cultural heritage of a particu- lar group or groups within the jurisdiction. The group whose cultural values are most commonly protected in this way are indigenous groups. Again, but in very limited circumstances, the culture and cultural heritage of a particular tribe or tribal community may be protected by the laws of that tribe rather than by the laws of the jurisdiction of which that community is a part. Even within each of these approaches there is a diversity of mechanisms used by the legal systems to achieve their objectives. Again, let us consider these approaches by way of examples.
Cultural values are protected in the United States of America at federal level by two sets of provisions in particular:
Section 106 places a duty upon federal agencies with jurisdiction over undertakings with a federal interest to take into account the effect of the
undertaking on any site or object included in or eligible for inclusion in the National Register prior to giving approval to the expenditure of funds or issuing a licence. The National Register is a list of publicly owned and privately owned districts, sites, buildings, structures and objects, significant in American history, architecture, archaeology, engineering and culture. This requirement is procedural to the extent that the obligation is merely to “take into account” the effect on cultural values of going ahead with the undertaking.
Section 106 applies to cultural values in general without specific reference to the values of any particular cultural community. The protection applies, therefore, to native American culture as it does to any other. In Attakai’s case,87 federal agencies were involved in the construction of fences and livestock watering facilities on parts of the Hopi Indian reservation as part of a range restoration and management programme. Members of the Navajo tribe sought an injunction from the court to stop these agencies from engaging in these activities on the Hopi reservation. It was claimed that to go ahead with the undertaking would irreparably disturb and destroy sites and objects of religious, historical and archaeological significance to the Navajo tribe contrary to section 106. In essence, therefore, members of the Navajo tribe were seeking recognition and protection of their cultural values, including landscape values, in areas physically located within the land set aside as the reservation of the Hopi tribe.
Significantly, the rights of the Hopi tribe were found to be different from those of the Navajo tribe for the purpose of section 106. The court looked broadly at the objectives to be achieved by the legislation. It was concluded that the procedures contemplated by section 106 enabled an input from the Navajo tribe about the values claimed by them in relation to the Hopi reservation. While the Navajo tribe were not entitled either to be consulted, in the fullest sense of that requirement, or to veto the proposal, they were nevertheless entitled to be afforded an opportunity to participate as interested persons.
Section 4(f ) of the Department of Transportation Act, on the other hand, affords substantive protection to landscape values. Paragraph (a) is critical. It states:
It is the policy of the United States Government that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites.
A transportation programme or project involving the use of these areas will be approved only if two conditions are satisfied:
One of the strengths of this provision is that the expression “use” includes not only the physical use of land but also the impairment of the values of protected areas. Hence landscape values in the wider sense of cultural as well as physical perspectives are included.
The requirement that there is no prudent and reasonable alternative is a stringent test that touches upon the merits of the proposal. While the court is not concerned to determine whether the project should go ahead, the court will ensure that the decision of the federal agency is founded upon reasonable and sufficient information and evidence.
The second requirement – to include all possible planning to minimise harm – is almost as stringent. It requires a balancing process which assesses the cumulative harm caused by each of the alternatives and selects the one that does the least harm. It is, significantly, a negative test in the sense that, all other things being equal, it is the least harmful option that is approved.88 Clearly section 4(f ) – in this respect like section 106 – does not prohibit a development that has harmful effects. It reduces that possibility but it does not eliminate it.
All states in the United States of America have enacted legislation that recognises and protects in several diverse ways cultural values and cultural heritage. An instructive example is the legislation of the State of New Mexico where a number of the Navajo tribe live. In common with the legislation of other states, a declaration of policy in the statutes of New Mexico is critical to their application and interpretation. In one instance, the landscape values of a particular area are acknowledged and protected directly by the legislation. Thus the declaration of policy stated in the Rio Grande Valley State Park Act proclaims:
The preservation, protection and maintenance of the natural and scenic beauty of a designated portion of the Rio Grande and its immediate corridor is in the public interest. The designation of the Rio Grande valley state park will enable people to enjoy the recreational, environmental, educational and wildlife benefits of the river. Therefore the legislature declares it to be in the public interest, in furtherance of sound environmental policy and for the good of the people to establish the Rio Grande valley state park.
The legislation then goes on to provide for the management of the park in accordance with the statement of policy. Significantly, the statement of policy refers to “natural and scenic beauty”. Its preservation is in the public interest. The legislation does not explain what is meant by preservation. It attracts therefore the ordinary meaning of the word – just as in the case of the English legislation.
The legislature of New Mexico has in addition enacted legislation of general application for the protection of cultural properties. The range of instruments in the Cultural Properties Act for the recognition and protection of cultural values is typical. It includes:
Once again, it is the purpose of the legislation and the definitions associated with the concepts included in the purpose that are critical. The lengthy statement of purpose declares that the historical and cultural heritage of the state is one of the state’s most valued and important assets. There is, moreover, a public interest in the preservation of components of the historical and cultural heritage including sites and places. Finally, the ultimate purpose of the Act is the preservation, protection and enhancement of these assets. The concept upon which the legislation is based is called “cultural property”. It means:
A structure, place, site or object having historic, archaeological, scientific, architectural or other cultural significance.
Once again there would seem to be little doubt that landscape in its physical and cultural contexts is included within this definition. The legislation applies generally to all cultures and is not culture specific.
The Heritage Act 1997 of the State of New South Wales in the Commonwealth of Australia applies to cultural heritage generally. Its scope and impact, although couched in some respects in general terms, are relatively specific. Like legislation for the protection of cultural heritage in general, it contains the range of functions that may reasonably be expected:
Protection is afforded through these various mechanisms only to heritage
While landscape is no doubt intertwined with each of these, the signifi- cance of landscape arises in particular in relation to a place of cultural, social or aesthetic value. This does not exclude the physical perspectives of place and landscape. It instructively includes the cultural and aesthetic perspectives of landscape.
Where an item of heritage is protected either by an order or by listing in the state register, a range of activities is prohibited without approval. There are two such restrictions set out in section 57(1) of particular relevance:
For this purpose a place means an area of land with or without improve- ments.
5.7 Landscape and Indigenous Cultural Values
Let us now turn to examples of legislation that recognises and protects indigenous culture. While New Zealand is a multi-cultural society, it is the culture and cultural heritage of the indigenous Maori that are recognised and protected in various ways. While the Conservation Act 1987, the Resource Management Act 1991 and the Historic Places Act 1993 are all of general application, they specifically recognise and protect the interests of Maori. While there is no reference to Maori culture as such in the statement of purpose of
either the Resource Management Act 1991 or the Historic Places Act 1993, there is in each case a specific recognition of Maori culture. It is a matter of national importance in section 6(e) of the Resource Management Act 1991 and a matter to be recognised in section 4(2)(c) of the Historic Places Act 1993. In each case the subject matter of the duty is the same:
The relationship of Maori and their culture and traditions with their ancestral lands, water, sites, wahi tapu, and other taonga.
Wahi tapu are places sacred to Maori in the traditional, spiritual, religious, ritual or mythological sense. This is indeed the way in which the courts have interpreted section 4(2)(c) of the Historic Places Act 1993. Thus it has been stated:89
There is no question but that traditional, historical and cultural interests of Maori are recognised both as included in the general purposes and principles of the Act relating to historic places and archaeological sites, but also in a particular way with the specific recognition in s 4(2)(c) of Maori and their culture and traditions in relation to the specific items of ancestral lands, water, sites, wahi tapu and other taonga.
Clearly, Maori values are relevant as matters to be taken into account in decision-making under the Act. However, the Court suggested that they may not constitute a distinct principle as such.
The Historic Places Act 1993 is concerned generally with historic places in New Zealand. A historic place is any land, building or structure which forms part of the historical and cultural heritage of New Zealand. There is no def- inition of “heritage”. Culture clearly includes Maori culture. Thus to the extent that landscape and landscape values are part of culture, whether Maori or non- Maori, they are recognised and protected by the provisions of the legislation.
One of the means of protecting historic places is by way of heritage orders. A heritage order protects places of special interest, character, intrinsic or amenity value or visual appeal, or of special significance to tangata whenua for spiritual, cultural or historical reasons. In addition a historic place may be registered as such. It is open to any person to propose the registration of such a place. The criteria for registration are extensive. A place may be registered if the place or area possesses aesthetic, archaeological, architectural, cultural, historical, scientific, social, spiritual, technological or traditional significance or value. Significantly, the expansion of these criteria specifically contemplates the
extent to which the place forms part of a wider historical and cultural complex or historical and cultural landscape.
The Historic Places Act 1993 is the responsibility of the Historic Places Trust in conjunction with the Maori Heritage Council. One of the more sig- nificant obligations of the Council under section 85(a) is to ensure that the Trust is culturally sensitive in its protection of wahi tapu, wahi tapu areas and those historic places and historic areas which are of Maori interest.
The functions of the Department of Conservation under the Conservation Act 1987 relate generally to the conservation of natural resources. According to section 2(1) the expression “natural resources” includes landscape, landform and geological features. One of the specific duties of the Department in relation to nature conservation is the preservation and protection of the natural resources of New Zealand with special regard to landscape. The Department thus must manage for conservation purposes all land and all landscapes and landforms held by the Department under the Conservation Act 1987 or held by the Department by agreement with the owner. Equally significantly, in relation to coastal policy, the protection of landscapes, seascapes and landforms is a national priority. While the Conservation Act 1987 does not deal specifically with Maori values, there is no doubt that the duty to conserve imposed by the Act is subject to Maori values in relation to landscape.
The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 of the Commonwealth of Australia does not provide for the identification and protection of indigenous cultural heritage in general terms. It merely provides a system whereby a member of the Aboriginal community may seek protection of an area whose values may be detrimentally affected by proposed activities. The procedure is complicated but essentially it is this under section 10:
The preservation and protection from injury or desecration of areas and objects in Australia and in Australian waters, being areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition.
The procedures are linked to these purposes and the Minister may make a declaration only if the Minister is satisfied:
While the courts have made it clear that strict compliance with these procedures is necessary, it is equally clear that the Minister is under no obli- gation to make a declaration. However, he must consider an application on its merits. Thus:90
It is clear, having regard to the purposes of the Act, that although the Minister is not bound to accede to an application for a declaration, he cannot simply ignore such an application and fail to consider it at all. It would frustrate the whole object of the Act if the Minister were not under an obligation to give some consideration to an application that satisfies the requirements of s10(1)(a). The question then is to what extent the Minister must consider the application and whether the Act obliges him, as part of the process of dealing with the application, to consider whether the subject area is a significant Aboriginal area and whether it is under threat of injury or desecration.
In light of the significance attached by the Court to the purposes of the Act, it is not surprising that the Court responded positively to this question by deciding that the Minister is in fact under a duty to undertake a careful consideration of these matters.
While these requirements are essentially procedural in character, they are nevertheless significant in practice. The values protected by the Act of 1984 are the traditional values of the Aboriginal community in relation to land. This includes landscape values of a spiritual, mythological or indeed physical kind.
The Navajo tribe in the United States of America is spread across the states of Arizona, Colorado and New Mexico. The cultural values of the Navajo, including landscape values, are protected by the procedural and substantive
provisions of the federal legislation dealing with culture and cultural heritage and also by the provisions of the specific and the general legislation of New Mexico dealing with culture and cultural heritage. However, the Navajo nation has enacted legislation for the recognition and protection of culture and cultural values over which they have direct control. The significance of this lies in the capacity of the Navajo to determine for themselves what is valuable and what should be preserved. Thus:91
Preserving places important to Navajo people can help preserve Navajo culture, but to be most effective, preservation efforts must widen their focus from the specific place to the culturally significant landscape within which each place functions and from which it gets power (significance) and to which it gives power. Preservation efforts that focus on places but ignore their associated landscapes that provide the material basis of the Navajo way of life run the risk of saving the places while letting the living context be destroyed.
Thus the cultural values associated with landscape are perhaps even more important than the physical values associated with landscape – at least for the Navajo.
It is perhaps no surprise that the Navajo Nation Code follows the broad structure of legislation in the United States of America. However, the code places a distinctive Navajo perspective on the detail of the provisions. The code recognises and protects landscape values by incorporating within it an Environmental Policy Act and a Cultural Resources Protection Act. Significantly, the statements in the legislation are as much declarations of philosophical and spiritual significance as they are statements of policy.
It is, for example, the policy of the Environmental Policy Act to promote harmony and balance between the natural environment and the people of the Navajo nation. To this end it is declared that the protection, restoration and preservation of the environment is a central component of the philosophy of the Navajo nation and the purposes of the Act include:
The Environmental Policy Act therefore contemplates the cultural and the physical aspects of environment.
The Cultural Resources Protection Act incorporates a range of mechan- isms for the protection of cultural heritage that are common in contemporary practice. These include:
Once again the essence of the legislation rests in the policy context and the definitions. The foundations of this system are a recognition of the importance of culture as a past, present and future phenomenon of society. It is the conjunction of these three elements that underpins the legislation. Thus the statements of findings and of policy include these elements:
The Act is concerned with cultural resources in general and the specific protection of items of cultural property. Not all cultural resources are protected. Protection is afforded to cultural property and this means any cultural resource important enough to warrant listing in the register. It is the concept of “cultural resource” that is critical. It means:
Any product of human activity or any object or place given significance by human action or belief.
The concept of place is particularly important for landscape. It refers to an identifiable location at which an event occurred or a location given significance by human action or belief. It is the source of significance which is important for this legislation. And the source of significance is quite clearly human action or human belief. The value of landscape to members of the Navajo nation is thus derived from what these individuals or groups of individuals do within the space available to them or what they believe in relation to the space available to them. For these purposes, the concept of space is theoretically unrestricted since the concept of land is extended to land historically or traditionally used by the Navajo.
5.8 Direct Landscape Protection
International law has played a significant part in developing principles and rules about landscape and landscape values. Much of the initiative for this has come from the International Union for the Conservation of Nature. The International Union has more particularly created a range of categories according to which reserves are managed for conservation purposes. The Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth of Australia relies upon Australia’s international obligations for much of its constitutional validity and as a source of its environmental management practices.
One of the functions of the Commonwealth is to manage Commonwealth reserves. These are areas of land or sea:
When a Commonwealth reserve is declared, it must be assigned to one of the categories created by the International Union. These are either natural or cultural or both. There are seven:
Not only that: regulations under the Act must prescribe principles for each of these categories and these become the Australian IUCN Reserve Management principles.
Section 347(2) of the Act states the characteristics for each of these categories. While each category may be relevant in relation to landscape values, it is the categories of a natural monument and of a protected landscape or seascape that are most important for present purposes. The former prescribes a specific natural feature or natural and cultural feature of outstanding value because of its rarity and the latter an area of land, with or without sea, where the interaction of people and nature over time has given the area a distinct character with significant aesthetic, cultural or ecological value.
Regulation 10.04 of the Environment Protection and Biodiversity Conservation Regulations 2000 of the Commonwealth of Australia provides that the principles for each of these categories are set out in Part 2 of Schedule 8 to the Regulations. A number of these principles are particularly significant:
Particularly important in relation to landscape are the principles prescribed for a protected landscape or seascape. These are included in the appendix to this article. The fundamental idea sustaining these principles is the traditional interaction between people and nature. While landscape and seascape are specifically referred to in their own terms, it is clearly the cultural as well as the physical aspects and perspectives of landscape and seascape that are acknowledged by the principles. So too are the economic, social and ecological perspectives of landscape and seascape – although in this case they may be subsidiary to the cultural perspectives associated with landscape and seascape. These nevertheless remain principles and not rules of law. In this sense they guide the management of a Commonwealth reserve while it is the more general characteristics set out in section 347(2) that must be demonstrated before a reserve is declared. These are rules rather than principles of law.
6. CONCLUsION
It is likely that landscape and landscape values have always been recognised by individuals and groups of individuals within societies. The values attributed to land and landscape have varied enormously over time. In this sense the attribution of value by society is an ongoing and dynamic process. Where the members of a community agree about the values to be recognised and protected, then there is no function for a legal system. The law becomes relevant when it is desirable to provide a degree of consistency and a sense of order within society and to provide mechanisms to solve disputes that may arise. Where the use of land and the recognition of landscape are based upon custom and formalised,
if need be, through concepts such as common property, then the legal system as such has little contribution to make. This indeed was the position for many years. Even when concepts of property became individualised, the common law, one of the foundations of that system, found no need to recognise a concept such as landscape.
However, all this has changed. The objectives of society – whether political, economic, social or cultural – are different and so are the values that society wishes to recognise and protect. The law as a social institution has responded to these changes at international, national and local levels. New concepts have been introduced; new mechanisms have been incorporated within the legal system; new standards of behaviour and decision-making have been mandated.
It is the particular nature of landscape and landscape values that has presented challenges to the legal system in response to these changes within society. International law, for example, has begun to move quite rapidly towards the recognition and protection of landscape. However, it has done so indirectly for the most part by recognising the relevance of landscape values in the context of environmental conservation on the one hand and the recognition of human rights on the other hand. While it may be premature to conclude that international law recognises a duty to protect landscape values, it is less premature to suggest that international law recognises these values by other more indirect means.
In a small number of jurisdictions it has been thought fit to afford protection to particular values by giving them special recognition in the constitutional framework of the state. An increasing number of constitutions – not unlike international law and possibly in consequence of international law developments
The tendency within jurisdictions seems to be to recognise and protect landscape values through what has been described as landscape management. Management is a neutral term that has been chosen deliberately. The degree of recognition and protection varies from jurisdiction to jurisdiction. In some instances, rather few in practice, there is a legal duty to protect landscape values. More commonly there is a duty to consider landscape values of one kind or another as matters of principle or as matters of fact to be considered in the relevant decision-making processes. Indeed, in some instances priority might be given to landscape values in the decision-making processes in question. This may be done in a number of ways: for example, by making the conservation
of nature or perhaps even more specifically the conservation of landscape the objective of a decision-making process, by requiring special attention to be given to these matters, by requiring these matters to be given first consideration or by requiring them to be given priority in treatment.
Alternatively, landscape values may simply be protected by procedural mechanisms: for example, by inviting interested persons to become involved in the decision-making process without giving them any further rights other than mere participation and contribution of views and comments. Landscape values may also be protected in the context of management plans, land use plans and mechanisms linked to management and planning. These plans may be related to codes of practice which incorporate the recognition and protection of landscape values.
All of these mechanisms have different legal implications. Apart from the duty to protect landscape values – very exceptional in practice – none of these ensures the protection of landscape values as a matter of law. What they do is simply recognise the validity, relevance and significance of landscape values in other processes.
Landscape management in this sense has effect through the legal system in a number of different ways. There are six:
All of these approaches are fraught with conceptual and definitional problems. This is in effect the conundrum for a legal system. A legal system seeks certainty and precision as the basis of rules of law. A value, particularly a value such as landscape, tends to lack the precision and certainty required for rules of law. It is therefore not a surprise that the legal system has difficulty in addressing issues of landscape values. At all levels – international, constitutional, national and local – it would be premature to suggest that there is a duty to recognise and protect landscape values. Such a duty may become a feature of legal systems in the future. At the moment, landscape values are for the most part recognised and protected by the range of mechanisms part of processes of management that are increasingly an element of a number of legal systems.
aPPeNDIX
environment Protection and Biodiversity Conservation Regulations 2000 Protected Landscape and seascape
management Principles
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