Long battle to liberate Stony Batter

By FELICITY BROWN

The climb to Stony Batter is long and winding, but this sparse and eerie place offers a reward to treasure.

Erosion has left a series of gigantic sculptural boulders reminiscent of huge pebbles planted in the thick grass.

Cows, the main population of the reserve, watch absently from behind the colossal rocks as daytrippers wander the red-mud road towards the historic gun emplacements, built in 1944 when Japanese invasion was still a threat.

The road they are treading is little more than a dirt track, but it has cost Auckland ratepayers $1.5 million in the longest-running legal battle in New Zealand local body history.

Multimillionaire John Spencer went right to the Privy Council in London in his attempt to stop the public using the 4km of road on his property to reach Stony Batter.

Last week the law lords ruled in favour of the Auckland City Council, a decision that allows the public permanent access. They said Mr Spencer, former owner of Caxton Pulp and Paper and once the richest man in New Zealand, never had the right to close the road.

Locally referred to as Loop Rd, the area at the eastern end of Waiheke consists of three roads, including Man O'War Bay Rd. Access to the Batter is gained at the end of Loop Rd, by a walkway that has been open since a Court of Appeal decision last year.

It was that decision that Mr Spencer challenged.

The former chairman of the Waiheke Island Community Board, Gordon Hodson, says having the road open permanently will mean many benefits for local people.

Having a complete tourist circuit around the eastern end of the island will give the local industry a chance to thrive, as well as providing important access for people who use the area.

"There will be new opportunities for land development, which will hopefully be done with care and consideration for the environment down there."

Stony Batter, which gets its name from the unique rock formations, is considered an engineering site of international significance, and Waiheke residents have supported the council's expensive battle against Mr Spencer. A 1994 poll on the issue recorded 90 per cent endorsement.

"Local people have continued to vote the money for the case and local knowledge has contributed old photos and anecdotal evidence," says Hauraki Gulf Islands ward councillor Faye Storer.

The battle over the road was sparked by a decision made before Mr Spencer bought the property.

The now-defunct county council began building the road in 1970 with the agreement of the owner at the time, Arthur Hooks, that it be designated for public use.

Years later, Mr Spencer's lawyers argued that when he bought the property surrounding the Batter in 1979, the certificate of title had no mention of the dedication of the road as a public one.

He claimed that subsequent public use of the road caused him to lose stock and increased his farm costs.

The 19 years of confrontation brought some dramatic moments.

In 1984, Mr Spencer installed a wooden gate with a padlock blocking the road. This was demolished by a vehicle believed to belong to a resident. The gate was replaced by a metal one, also with padlock.

Two years later, Mr Spencer covered up a section of the disputed road which runs along the Man o'War Bay foreshore and formed a new one on his property 20m inland.

In 1992, he covered the road behind his gate with large mounds of earth and posted security guards.

The move aroused anger among residents, two of whom were arrested for trespass in a peaceful protest across Man O'War Bay Rd to Cactus Bay.

The protesters were later cleared.

In 1993, Mr Spencer sued the Auckland City Council for $1.9 million in damages for loss of stock. He accused the council of "continuously and actively encouraging trespass by the public".

He lost the case and appealed to the High Court in 1997. Justice Anderson awarded $15,000 in damages and ruled that Loop Rd was public, except for two short sections, one of which leads to Stony Batter.

This decision was later overturned in two different judgments by the Court of Appeal, ensuring that the road was opened as a walkway.

Mr Spencer then went to the Privy Council, the ultimate court of appeal under New Zealand law.

Rejecting Mr Spencer's case, the law lords ruled that the legal doctrine of "implied dedication" effectively means he never had the right to keep the public off Loop Rd. They awarded the Auckland City Council costs.

Those costs will be determined in further legal action by the council, likely to take place in the High Court.

Mike Lee, Auckland constituency representative to the Regional Council and Waiheke resident, says the Privy Council judgment sends a message to private landowners like Mr Spencer.

"This ancient and august body has confirmed that Waiheke is not a feudal barony and that John Spencer is better off working with the council rather than against it," he says.

"Justice is very expensive. An enormous amount of money has been wasted on lawsuits that could have been used in a positive manner to improve life on the island. It's tragic in a way."

But resident Bruce Steele feels that some degree of compromise might have been reached if the council had been more sensitive in its dealings with Mr Spencer.

"John Spencer's had a lot of bad publicity over the years. He must have had some aspect of a case for it to get this far - it does take two to tango."

Mr Spencer has never spoken publicly about the issue. This week his lawyer, Richard Craddock, QC, declined to comment on his behalf.