Decision reserved in quarrying saga

THE High Court has reserved its decision in a longrunning dispute over quarrying on Saddle Hill.

During a twoandahalfday hearing, present quarry owners Saddle Views Estate Ltd appealed what it said was a flawed decision by the Environment Court which last year decided a longlost 1960 consent, allowing quarrying on the site, had no ongoing effect.

The High Court decided in 2014 a consent for quarrying on Jaffray Hill, the lower of Saddle Hill’s two humps, did exist.

But the Dunedin City Council wanted clarity on the owner’s rights, under the Resource Management Act, to operate a quarry.

Saddle Views claims it has the right to quarry Saddle Hill without restriction, something the DCC does not accept as being a correct legal position nor a desirable environmental outcome in the absence of clear legal authority.

In submissions for Saddle Views, Trevor Shiels QC told Justice Rachel Dunningham the Environment Court had overstepped its authority in deciding a Town and Country Planning Act consent from 1960 had no ongoing effect.

In his High Court decision in 2014, Justice Christian Whata found there had been consent granted under the Town and Country Planning Act in 1960 for the then owners to quarry Saddle Hill, DCC counsel Michael Garbutt said, and that was not up for relitigation.

But what the High Court did not determine at that time was what the consent was for — in other words, the scope of the consent, Mr Garbutt said.

The key question for the Environment Court last year — what the consent granted in 1960 was for — was a factual finding based on documentary evidence that the council was required to prove on the balance of probabilities.

‘‘The fundamental point is the Environment Court has identified as a fact that the purpose and scope of the consent granted was limited.

‘‘This means that, as at 1961, when section 383 of the Resource Management Act came into force, the permission granted by this particular consent to Downer and Co Ltd (the then owners of the quarry) had been exhausted and was not ‘‘in force immediately before the date of commencement of this Act,’’ Mr Garbutt said.

That meant the Environment Court was right ‘‘in this case’’ that the consent granted under section 38A of the Town and Country Planning Act 1953 was not in force ‘‘as at the commencement of the Resource Management Act, having been exhausted in 1963 or 1964’’ and could not therefore have been deemed to be a resource consent with ongoing effect.

The court had not made an error of law because the consent Saddle Views relied on had expired, or been spent in about 1963 or 1964, when the purpose and volume were exhausted by Downer and Co.

Mr Garbutt argued Mr Shiels was ‘‘attempting to relitigate the argument previously had before the Environment Court by relying on aspects of the evidence, rather than the evidence in totality’’.

Both parties in the dispute had been dealt with by the court in an evenhanded way. The court had been transparent and open in its reasoning and there had been no perception of bias.

While the proceedings had been difficult and complex, the court’s rulings had not created the perception that its judgement had been motivated by actual or perceived bias, and the alleged error of law had not been made out, Mr Garbutt said.