Brian Rudman: 1915 act puts Mt Roskill's fate in Helen Clark's hands

A month ago, Prime Minister Helen Clark declared the impending rape of Mt Roskill "not an issue I have paid any attention to". Thanks to an obscure 1915 act of Parliament, that's about to change.

The long-forgotten act says, in effect, that before Government road builder Transit New Zealand moves a lump of scoria from the side of the volcanic cone it has to have the express permission of "the Governor in Council". (These days that's the Cabinet, acting as the executive council, chaired by Governor General Dame Silvia Cartwright.)

To act without this permission leaves Transit open to a daily fine of not less than $20 - updated in the act from the original £10, which no doubt in 1915 was a scary amount for any errant quarrier of road metal.

The great thing about the unearthing of Part 5 of the Reserves and other Lands Disposal and Public Bodies Empowering Act 1915, is that it brings the fate of Auckland's priceless volcanic cones back on to the political centre stage where it belongs. No longer are they hostage to the commercial imperatives of the Resource Management Act or to the legal nitpickery of legal circles.

The appalling thing is that this act has remained forgotten for so long, resulting in a huge waste of time and public money, as the road builders have battled through the planning and legislative processes, only to find, at the last moment, that the politicians have the final say anyway.

What a shame the politicians weren't forced to have the first say instead. Hopefully they would have agreed the destruction of any more cones was unacceptable, and sent Transit off to put their road a few metres farther north.

How, you might ask, has an act of Parliament specifically designed to restrict "quarrying operations on volcanic hills in the Auckland provincial district" managed to lie unnoticed for so many years while legal battles have raged over developments on cones like Mt Hobson, Mt Roskill, Mt St John and Three Kings?

Amazingly, the act is reprinted for all to see in "annexure 7" of the current Auckland District Plan, complete with references to the Supreme Court (now High Court) and the £10 penalty.

Totally forgotten? Well not quite.

One former Auckland City planner did know about it, a few years back alerting Three Kings United, the group fighting the dewatering of that quarry, of its existence.

This group didn't need it and shelved it ... until last weekend, when treasurer Austen Bell asked Volcanic Cones Society executive member Greg Smith why the society hadn't used it in its fights.

Mr Smith had never heard of it, but saw the implications immediately and by Monday morning was firing off fax messages and phone calls to all parties.

Mr Smith's messages were like a bombshell. I have spoken to senior planners or lawyers working for Auckland City, Transit New Zealand and Department of Conservation and none were aware of this act.

Richard Hancy, regional transportation manager for Transit, says: "We are in the process of considering the implications of the 1915 act, and will address any actions arising from that once the review is complete."

I can't imagine the review taking long. The act, as it relates to the cones, is only four paragraphs long. The key passage is "it shall be unlawful for any person, unless expressly authorised in that behalf by the Governor in Council to make ... any excavation, quarry, terrace or cutting of any kind ... on the side or slope of any of the volcanic cones or hills in the Auckland provincial district which is bounded by or abuts on to a domain or other public reserve, without leaving an angle or batter of not less than 40 degrees from the top of such excavation, quarry, terrace or cutting ... to the floor or base of such excavation, quarry, terrace or cutting."

There is no doubt the 11.5m vertical cut Transit has planned for the north face of Mt Roskill breaks the 1915 law. To give it the required angle of slope would mean cutting back into the remaining mountain, which would breach their environment court settlement.

Which leaves Transit having to go cap in hand to the Governor in Council - or, in effect, the MP for the neighbouring Mt Albert electorate, Helen Clark.

Transit now faces two battles at the Beehive. Already on the cards was an appointment with Minister of Conservation Chris Carter to persuade him to surrender Mt Roskill reserve land for the motorway. Mr Carter refuses to discuss the issue, but was recently asking rhetorically "do we have the conservation estate carved up by deaths by a thousand cuts?" His answer was, no.

Now Helen Clark and her cabinet colleagues are in the gun too. She has told me in the past of her disquiet at the idea of State Highway 20 destroying several parks in her electorate once it gets past Mt Roskill. Like Transit, she'd prefer it underground.

Now she faces deciding what to do with the highway before it gets to her electorate. Agree to Transit's plans to destroy the north face of Mt Roskill, or demand something more acceptable. A solution in environmental terms, akin to undergrounding in her neck of the woods.