Brian Rudman: Dated maybe, but still very much in force

Transit New Zealand chairman Alan Bickers' dismissive reference to the newly discovered 1915 legislation protecting Auckland volcanic cones as "somewhat dated legislation" reminds me of British prime minister Neville Chamberlain's ill-chosen words about Czechoslovakia.

In 1938 as the Nazi hordes gathered at the border, he told a radio audience it was "a faraway country of whom we know little".

The 1915 act was, until now, similarly little known. It is also somewhat dated - though rather less so than, say, the Magna Carta and the Treaty of Waitangi. But as Mr Chamberlain found out, things can suddenly change.

Not only is this little act now poised to save Mt Roskill, it could also stall the progress of State Highway 20 and delay plans for Auckland and Manukau cities' controversial Eastern Highway project.

And, depending on how annoyed the Government is over the ensuing embarrassment resulting from this unwelcome surprise, this aged act could also put in jeopardy the jobs of Mr Bickers and one or more senior Transit officials as well. Not a bad day's work for a "somewhat dated" law.

Mr Bickers' comments came in a June 4 letter to the Auckland Volcanic Cones Society acknowledging their letter pointing out the existence of the Reserves and Other Lands Disposal and Public Bodies Empowering Act 1915.

"It is unfortunate that you did not raise the potential application of this, somewhat dated, legislation at the recent High Court proceeding so that the court could have had regard to its potential impact on the design of this project."

He said Transit was now determining "the possible options that are lawfully available to it".

That's the easy one. Transit has two options. Either go back to square one and seek a new resource consent taking the motorway route north of the cone, or cringe before the Cabinet with a request the Government exempt the road builders from the terms of the visionary 1915 act which were designed to stop further destruction of the cones.

In a letter to Attorney-General Margaret Wilson this week, the cone society appeals to the Cabinet to ignore the fatally flawed decisions of the Environment Court and High Court in coming to any decision.

Acting on the advice of Paul Cavanagh, QC, the society says the Cabinet "cannot place reliance upon the Environment Court's decision because that decision was given without reference to the provisions of this statute".

Mr Cavanagh subsequently explained to me that the Environment Court would not have heard Transit's case if it had been aware of the 1915 act, because it "prohibits interference with the mountain unless there is an order in council authorising it".

"That's the nub of it. They couldn't have gone ahead with it until Cabinet gave approval for it. And how could Cabinet do that without an appropriate evaluation of alternatives?"

The worry of Mr Cavanagh and the society is that the Cabinet, if approached by Transit for an exemption from the 1915 act, will fall back on approvals given by the Environment and High Courts. The fear is the Cabinet will say the matter had been before the courts, the appropriate judicial review of all the facts had taken place and therefore it is not appropriate for the Government to reverse the two courts' decision.

The society argues that because the judgments were made without any awareness of the 1915 act, they are now valueless.

In the letter to Ms Wilson it is pointed out that the 1915 act "goes to the heart of what was under consideration in the courts, namely the cut on the Mt Roskill volcanic cone. Furthermore, the decision the judges gave and the conditions they tied to it could not be fulfilled if the act was taken into account".

In 1968, Chief Justice Wild ruled that in special cases a judgment could be "recalled", that is, returned to the courts for further consideration. Of the three instances he gave, one was "where counsel have failed to direct the court's attention to a legislative provision or authoritative decision of plain relevance".

This is the situation faced at present. Unfortunately in the case of the two Mt Roskill judgments, the decisions were officially "sealed" by the judges, meaning there is no way to reopen them.

However, Mr Cavanagh is adamant that if the 1915 legislation had been drawn to the Environment Court's attention "it could not have made the decision it made because the act prohibited it".

This leaves the Government without any judicial skirts to hide behind. It can't blame the judges for Mt Roskill's fate because their decisions were fatally flawed by the failure of incompetent lawyers and planners to draw the court's attention to the crucial 1915 act.

If the judges got it wrong because of a mislaid act, the question remains, who is to blame for losing it?

A good starting point is Auckland City's bureaucracy. The 1915 act is printed as an annexe of the city district plan. At least one planner was aware of it. I know, I have spoken to her.

So why wasn't it raised when the motorway application first went before the city's planning commissioners?

The act guards all the volcanic cones in the Auckland provincial district, including Mt Wellington, which raises the matter of the proposed Eastern Highway.

Council publicity talks of it "snaking around Mt Wellington". Just where it snakes is now in the hands of this somewhat dated act. And, possibly, the Cabinet. The next move is Helen Clark's.