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 operative.
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''.