Brian Rudman: Bureaucrat gives the fingers to law protecting city's volcanic cones

We all know that Auckland City bureaucrats see themselves as more important than their political masters. Now one senior official has gone an extraordinary step further and declared her council above the law of the land as well.

Jenny Oxley, group manager, Auckland City Environments, has dismissed the 1915 act which miraculously emerged from obscurity in 2003 to save the Mt Roskill volcano from Transit New Zealand bulldozers as "an unsatisfactory vehicle for protection of Auckland's volcanic cones".

As a result, Ms Oxley says the council refuses to consider whether the continuing quarrying taking place at Three Kings breaches this act.

In a letter dated April 13, 2006, she says: "Auckland City is committed to protecting its volcanic cones and regulates matters of this nature through controls under the District Plan. These controls address existing and potential effects of excavation and construction on volcanic cones."

You only have to remember what nearly happened to Mt Roskill under the so-called guardianship of the district plan to know how feeble that protection can be. But that's not the point. Here's an act of Parliament introduced in 1915 by Prime Minister William Massey to prevent the "volcanic hills in and around Auckland city" from "being destroyed by quarrying operations"- and, 90 years on, a senior city bureaucrat gives it the fingers.

Ms Oxley's comments are a very belated response to a letter to the council sent 18 months before by the Three Kings United Group. Among its faults, she notes, the act "has not been enforced by Auckland City in recent memory" and that "council considers that it would be unfair and inconsistent to enforce against one particular site when there are likely hundreds of properties where offences have occurred under this act.

"Additionally, the costs associated with enforcement of this nature would be significant and would be borne by the ratepayer. Therefore we consider that enforcement is not justified with respect to the trivial penalty determined by the act ($20)."

She concludes that quarrying is "a permitted activity on this site" and "council does not intend to take action under section 5" of the act.

No consideration here of whether section 5 is being breached, although a case could be made for saying it was. Section 5 forbids, without Government permission, quarrying or other activity on a cone which results in a residual slope greater than 40 degrees. This is the prohibition which saved Mt Roskill. It's also the reason, after the act resurfaced in May 2003, that Auckland City hurriedly re-drew the route of the proposed Eastern Highway to make it go around, rather than through, Mt Wellington.

At Three Kings, the action group has done computer modelling which, if correct, shows the slopes of the working quarry are up to 74 degrees, or nearly double the maximum allowed under the act.

Ms Oxley misreports the prescribed penalties. They are not necessarily a trivial $20. The act specifies "a penalty of not less than 20 dollars for every such offence" and/or a penalty of not less than 20 dollars "for every day during which such offence continues". If a judge were to consider 90 years of inflation, the fine could be very untrivial.

As for the law not being enforced in the past, that's an indictment on generations of bureaucrats, not a justification for further inaction. Ms Oxley prefers to protect the volcanos through the district plan. The irony is, the 1915 act is included as "annexure 7" of the said district plan. It's just that for years until 2003, everyone forgot.

The Three Kings locals want an end to the dust and noise and fears of subsidence that quarrying brings. They're trying to stop the underground mining of the root of an already destroyed volcano. Their concerns are rather different from the heritage preservers of the Auckland Volcanic Cones Society. But both organisations are equally aghast. Cones society chairman John Street is "absolutely staggered they would have the arrogance to write such a letter".

Corrine McLaren, Three Kings United president, is incredulous. "Why have the act annexed to the district plan if it's completely biffoed ... The council is seeking world heritage status for our cones and we're all paying extra rates this year for volcanic heritage. We thought they'd be as concerned as we are."