Claim no fair hearing for Saddle Views

COMPLEX and esoteric arguments took the attention of the High Court in Dunedin yesterday as the legal fight between the Dunedin City Council and quarry owner Saddle Views Estate Ltd continued for a second day.

One side claimed ‘‘apprehended bias’’ as the other responded to suggestions of ‘‘res judicata’’ and ‘‘estoppel’’.

The hearing is the latest in a longrunning legal fight between the council and Saddle Views Estate over what limits there are to quarrying at the site.

The controversial quarry, which has attracted public anger over its impact on the shape of the hill, continues to operate under an interim enforcement order restricting where quarrying can take place.

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

This was followed by an Environment Court decision last year which said the consent ‘‘has no ongoing effect’’ and work should have ceased more than 50 years ago.

Trevor Shiels QC continued his argument on behalf of Saddle Views Estate Ltd, wading through legislative history from the Town and Country Planning Act of 1953, its 1977 version and the current law under the Resource Management Act 1991.

Despite the High Court ruling there had been a consent issued in 1960 to quarry the area, Mr Shiels said the Environment Court appeared reluctant to accept that in its subsequent rulings.

‘‘While purporting to accept both the conclusion of the first High Court decision and various other findings of the High Court, [the Environment Court] has been close to contemptuous in its disrespect for and disregard of the High Court findings,’’ he said.

Mr Shiels raised the issue of ‘‘apprehended bias’’ and what he said was a breach of natural justice principles under the New Zealand Bill of Rights Act.

By the time the Environment Court had released its third or fourth judgements, he said it had ceased to deal with the issues raised by respective counsel and was instead running the case independently.

Mr Shiels said a ‘‘reasonable and fairminded observer’’ would consider Saddle Views did not get a fair hearing.

‘‘At this stage the court had dominant in its mind its own views this quarrying should not be allowed, rather than the merits of the application,’’ he said.

‘‘The court had become an advocate.’’

He painstakingly traversed the history of the case and was critical of the Environment Court’s role as well as its findings.

Another appeal point focused on the court’s decision the resource consent was limited by quantity and purpose of extraction.

The Environment Court had reviewed Otago Daily Times stories from August and September 1960 which stated 50,000 cubic yards of stone would be quarried for construction of the airport in Momona.

Mr Shiels said the court could not rely on those articles alone to prove the consent was limited to that volume and for that single purpose.

Justice Rachel Dunningham stressed her job was to assess the appeal on any potential errors in law but Mr Shiels argued she was permitted to consider the factual background of the longrunning case.

For the council, Michael Garbett said Saddle Views Estate had asserted throughout it was entitled to quarry ‘‘the whole hill’’.

In the face of that assertion, the council wanted to ascertain what the limits to the quarry might be.

He said his case was the High Court, in its decision in 2014 to overturn an Environment Court decision stating there had never been a consent, ‘‘simply did not determine the terms and conditions of that consent’’.

Mr Garbett kept coming back to that theme as he laid out his submission to Justice Dunningham.

On suggestions the Environment Court had stepped outside its jurisdiction, Mr Garbett said it had focused on the terms of the consent the High Court found was granted in 1960, as it was asked to do.

Mr Garbett also noted a number of times in his submission the Environment Court found a consent from 1960 allowed the extraction of 50,000 cubic yards of gravel for the Momona Airport, but that volume was exhausted in 1963 or 1964.

‘‘I don’t think there’s any particular dispute over that.’’

He said the court was correct in its ruling consent could not be deemed to be ongoing, as it was exhausted before the Resource Management Act came into force in 1991.

During his submission he argued against claims of res judicata, a matter already judged, and estoppel, a legal principle that bars a party from denying or alleging a certain fact owing to that party’s previous conduct, allegation, or denial.

Mr Garbett’s evidence continues today.

The appeal is expected to conclude about noon, and the judge is likely to reserve her decision.