Brian Rudman: Goldmining appeal all about councils defending their rights

Before Auckland ratepayers get too agitated about the Auckland Regional Council joining the fight to oppose gold mining on the Coromandel Peninsula, they should appreciate the fight's not about gold at all.

It's about the right of local councils to control housing development in the foothills of the Waitakeres, or to regulate mussel farming off Waiheke Island.

Certainly, the subject of Justice Simon France's recent judgment was gold. In it, he upheld an Environment Court finding that the 1998 decision of the Thames Coromandel District Council to declare mining a prohibited activity in coastal and conservation zones and all recreation and open space policy areas was too liberal an interpretation of the Resource Management Act.

He supported the Environment Court's decision that the Concise Oxford Dictionary definition of prohibit as "formally forbidden by law" should be followed, quoting its finding that "in the abstract, prohibiting an activity is a legitimate planning tool, but one to be used sparingly and in a precisely targeted way".

Justice France said the district council's approach of initially prohibiting most mining in a resource-rich area then requiring potential miners to seek a plan change to remove the ban did not meet the sustainable development requirements of the act.

He said the act already provided six categories of activity - two that did not involve resource consents and four that did.

It was difficult, he said, to imagine Parliament had meant the use of the plan change procedure to create a seventh.

Justice France might find this procedure difficult to imagine, but councils up and down the country have not: 47 of the 72 district or city councils and all 12 regional councils include "prohibited activities" in their district plans.

This is not to say that each of the dozens of prohibited activities listed in the various plans will necessarily fall foul of Justice France's ruling.

But as most councils seem to have adopted the "liberal" approach now frowned upon, the worry is that all "prohibited activities" are now in question and will certainly be open to challenge in the courts.

Hence the Auckland Regional Council's interest in taking this decision to appeal.

"It's better to get the law clarified now with a joint action costing a few thousand dollars," says strategic policy committee chairman Paul Walbran, "than to end up with the whole thing unravelling with the cost potentially of at least $100,000 and probably several times more than that, fighting each challenge through the courts."
Joining the ARC in seeking the right to appeal against the decision is Auckland City Council. Deputy mayor Bruce Hucker said last night that it was important for all local authorities and he would seek support from other councils.

Mr Walbran says the ruling is inconsistent with the Government's recent approach to aquaculture which required the ARC to identify specific zones for the industry, then prohibit it everywhere else.

Councils use the prohibited activity zoning to give themselves more control over an application.

Requiring an applicant to seek a plan change enables a council to consider wider community impacts of a proposal than is allowed under the resource consent process.

Mr Walbran questions the judge's idea that the "prohibited activity" classification should be reserved for activities which are to be banned for all time. He points out that district plans have to be reviewed by law every 10 years anyway, so a lifetime ban is, at best, only 10 years long.

ARC chairman Mike Lee says it's important people fight to keep this planning tool "because it's their environment we're talking about".

He says if Justice France's decision stands, "the big question of how you manage the environment will be taken away from local councils to the rarefied atmosphere of the High Court".

Meanwhile, on the Coromandel Peninsula, the council has thrown in the towel. Having spent $200,000 on "a lonely battle" frustrated mayor Philippa Barriball complains the "johnny-come-latelies" from Auckland were nowhere to be seen "until they thought it was going to affect them".

Fair cop, says Mr Walbran, who admits "we have overlooked the implications until this stage".

Still, better late than never.