It was ''just so improbable'' that ''all that disfigurement'' of Saddle Hill could have been allowed to go on without a consent being in place, a lawyer for quarry operators on the hill says.
''And it was not only tolerated, but investigated by responsible officials from local and central government who all said the only solution was for somebody to put their hand in their pocket and buy the land to stop it,'' Colin Withnall QC told Justice Christian Whata in the High Court at Dunedin yesterday.
Mr Withnall and fellow Queen's Counsel Trevor Shiels are representing quarry owner Saddle Views Estate Ltd in an appeal against an 2013 Environment Court decision that no consent for quarrying the lower hump of Saddle Hill (known as Jaffray's Hill) exists, or ever has.
Saddle Views Estate says the Environment Court's decision was wrong on 16 points of law.
The appeal moves the 50-year battle to preserve the Dunedin landmark, which went as high as the prime minister's office in the 1970s, into the High Court.
It follows action from the Dunedin City Council to seek a declaration from the Environment Court of the legal rights the company has to quarry the hill.
Concern over the disfigurement of Saddle Hill goes back to 1960 - the court heard yesterday the top of the hill had dropped 30m since then - but no action to preserve it has previously been taken by any authority after various investigations suggested a legal right to quarry existed.
That meant that other than buying it and setting it aside as reserve, authorities historically felt they had no power to prevent or restrict quarrying. Counsel for the Dunedin City Council Michael Garbutt said the council swung into action this time after continued concern from the public and after Saddle Views Estate told the council in correspondence it was accepted it could remove the entire hill if it wanted.
The Environment Court decided no consent existed, but Saddle Views Estate says a body of reliable documentary evidence from the 1960s and 1970s suggests it does, in particular a 1966 letter from then planning officer Mr C. Edwards which refers to the ''original consent''.
Despite extensive searches, no consent has been found, although both sides have accepted files have been lost since amalgamation of the Taieri County and Dunedin City councils.
Mr Withnall said the Environment Court's 16 errors of law included that it had not given proper weight to the evidence, misinterpreted some of the documents, misread documents, interpreted documents with modern terminology and planning practice in mind rather than that of the 1960s, and disregarded relevant evidence.
Yesterday's hearing was peppered with questions from Justice Whata, who challenged both sets of counsel on various parts of their arguments and on legal technicalities.
Mr Garbutt began his evidence by saying the appellant was really seeking a revision of the evidence relating to whether a consent existed, rather than the court to decide on errors of law.
The appeal hearing is expected to conclude today.
