The Saddle Hill quarry. Photo by ODT.
The only way to stop quarrying on the ridge line of
Saddle Hill is for the land to be acquired and the quarry
owners compensated, the Environment Court in Dunedin was told
Counsel for Saddle Views Estate Ltd, Colin Withnall QC, told
the panel of Judge Jon Jackson and commissioners John Mills
and Owen Borlase the Dunedin City Council was trying to take
advantage of its own failure to keep a record of a resource
consent for quarrying on the southern hump of Saddle Hill,
known as Jaffray's Hill.
The council is seeking from the court a declaration of the
legal authority on which the Saddle Hill quarry operates,
given its belief that no resource consent for the quarrying
activity exists. It also wants restrictions put in place
safeguarding the hill's ridge line. The hill is listed as a
landscape conservation area in Dunedin's District Plan.
The council says Saddle Hill is a natural landform which is
highly valued by the community. Earthworks have the potential
to adversely affect the natural landform of the hill. Michael
Garbett, the DCC's counsel, told the court the council had no
record of any consent being issued for the operation and
there was insufficient evidence to prove there was one. The
continued operation of the quarry for more than 60 years was
made possible by existing use rights, but those rights were
not unfettered, he said.
The council had no issue with quarrying continuing on the
hill within the footprint of the existing quarry. It just
wanted the ridge line protected. It also sought a court order
that the existing use rights remained subject to the
quarrying activity staying within a specified area, the
profile of the ridge line could not physically be changed,
and the amount of rock extracted was limited.
For the quarry owner, Mr Withnall produced historic letters
and documents between council and government officials which,
he said, implied, on the balance of probabilities, that a
consent issued in 1960 did exist and that it had no
restrictive conditions. The fact the quarry had continued to
operate despite continuing public disquiet and agitation for
more than 50 years was evidence of the latter, he said.
It was ''simply inconceivable'' the owners could have
continued to quarry in that environment without a consent.
''The [council's] lack of records cannot be visited on them
[Saddle View Estates Ltd],'' Mr Withnall said.
''There is, and was, an obligation on the local authority, in
all its incarnations, to maintain a proper record. It cannot
take advantage of its own failure.''
He also argued that even if the courtdecided no consent
existed and the owner was operating on the existing use
rights, the court could only legally restrict those rights so
the effects were the same or similar to those which existed
before the relevant rule in the district plan became
The court would have to decide who was factually right on the
matter. Case law showed there was only one way to stop
quarrying in such a situation, Mr Withnall said.
''If you want to prevent the [owner] exercising resource
consent rights or existing use rights, the only way is to
compensate and pay.''
The panel asked Mr Garbett to provide his right of reply in
writing, and reserved its decision.
It also amended an interim injunction saying work could not
continue on the skyline until the issue was sorted out, to
replace the word ''work'' with ''extraction of rock''.