Brian Rudman: Old act gives cone relief from cuts

For an irrelevant old act with no teeth, the recently unearthed Reserves and other Lands Disposal and Public Bodies Empowering Act 1915 sure has Transit New Zealand taking no chances.

Not only is the state road builder going to redesign the planned State Highway 20 extension so the motorway doesn't breach the act's provisions as far as the Mt Roskill volcanic cone is concerned, but Transit is rejecting its lawyers' advice to challenge the act's validity in the High Court.

All of which is a great victory for common sense and for the long-term future of this precious landmark.

Not that the battle is yet won. The redesign being proposed will still mean cuts into the cone. What the proposed redesign means is that the proposed sheer 11m-high wall into the north face of the mountain will be replaced by a sloping "batter", which Transit's Auckland regional manager, Wayne McDonald, says complies with "the spirit" and word of the 1915 act.

The act is designed to prevent further destruction of volcanic cones on reserve land in and around Auckland. This was to be done by insisting that any earthworks on cones leave a slope of at least 40 degrees as measured from the top. This would ensure the slope was of similar steepness to the natural profile of the isthmus's cones.

The question still to be answered with Mt Roskill is can Transit achieve this requirement within the confines of the existing resource consents.

Mr McDonald says that he can comply with the act by moving the proposed roadway between three and six metres away from the cone.

Greg Smith, Volcanic Cones Society spokesman, questions this. He calculates that to achieve the required slope, the motorway adjacent to the highest point of the cut would have to be around 10 or more metres further north, not six.

There's also the question of whether a new resource consent will be required, given the detailed conditions in the existing consent by the Environment Court. Mr McDonald says this is still being considered.

Certainly Transit's changes, once completed, are going to be examined with a fine-tooth comb - which raises the matter of who is going to be out there "peer reviewing" Transit's plans.

The list of organisations that should be is as long as your arm, including Auckland City Council, which is the trustee of the Winstone Reserve, which includes Mt Roskill, the Auckland Regional Council, which is in charge of issuing and monitoring resource consents and protecting the region's environment, and the Department of Conservation.

Disgracefully, all the above copped out on Mt Roskill early on, leaving it to a few dedicated campaigners in the Volcanic Cone Society to spend their time and money to carry on the fight. If musts be, this small band of citizens will carry on the battle, but in fairness it's time the public bodies supposed to be guarding the environment finally shouldered their share of the load.

Grant Taylor, Auckland City's director of strategic development, said yesterday that "as a matter of course Transit will need to work closely with our regulatory people to ensure compliance with the designation conditions", which I guess is a start. But he should be insisting they comply with the provisions of the 1915 act as well.

Unfortunately, Auckland City, the ARC and DoC, instead of embracing the 1915 act as a valuable new weapon in the environmental protectors' arsenal, have regarded it as an irrelevant curiosity.

An inhouse DoC legal opinion comes up with such howlers as "the act refers to quarrying and may have been more concerned with engineering stability than the environmental effects". This despite the Prime Minister of the time introducing the act with the words that the legislation "has been framed" with the view to ending the destruction of the Auckland cones.

It's a dreadful commentary on the state of DoC that the planned destroyer of Mt Roskill takes the 1915 act more seriously than do the so-called conservers.

The same can be said about the Auckland Regional Council, which, apart from a minority of four - Mike Lee, Ian Bradley, Sandra Coney and Paul Walbran - continues to deny the relevance of the act, even though it bears directly on the resource consent that was issued.

But the big breakthrough this week is not so much in the detail of Transit's proposal but that the road builder has agreed to return to the drawing board.

The road builder, I guess, could later follow legal advice and try to persuade the High Court the act is irrelevant or, because Transit is the Crown, is immune from it.

But having decided to abide by the act, even while denying any obligation to do so, Transit has acknowledged its power. We can only hope that DoC, the ARC and ACC will now take it seriously as well, to ensure Auckland's volcanoes are finally safe.