Back Home 5 News 5 OceanaGold’s 40-year licence with Hauraki District Council upheld in the High Court

OceanaGold’s 40-year licence with Hauraki District Council upheld in the High Court

23 Feb 2024

| Author: Vivian Mitchell

Local Government Act 1974 – Local Government Act 2002 – judicial Review – public nuisance – licence or lease – improper purpose

Ours Not Mines Ltd v Hauraki District Council [2024] NZHC 63 per Harvey J.

 

In 2021, the Hauraki District Council (HDC) approved a 40-year licence to OceanaGold (New Zealand) Ltd to occupy parts of an unformed council-owned road reserve. The licence enabled OceanaGold to construct vents to facilitate its proposed mining in the area.

The area is an unformed paper road reserve and is surrounded by dense, mature bush. The vents were proposed to be built on the paper road area, depending on the outcome of the exploratory drilling. The road is in an area of Crown conservation land known as Coromandel Forest Park.

Ours Not Mines Ltd (ONM), an environmental interest group, brought a judicial review challenging the granting of the licence for illegality and improper purpose. It argued:

  • the HDC had no power to grant a licence to occupy under the Local Government Act 1974 (LGA74);
  • the proposed works constituted a public nuisance and HOC was not entitled to authorise public nuisance;
  • the licence conferred exclusive possession amounting to a lease and HOC had no power to grant lease over road;
  • and the power was not exercised for the intended purpose, therefore it was an improper purpose.

 

Legal Reasoning

HDC owns the paper road under s 316 of the LGA74. Harvey J determined its power to grant a licence is a right that any landowner has over their land and is not a regulatory function.

Harvey J accepted the HDC couldn’t authorise a public nuisance, and if the licence had that effect, it would be ultra vires. Harvey J stated the works did not appreciably interfere with the public right to pass and re-pass due to the road’s highly infrequent use and difficult access.

Regarding whether the licence amounted to a lease, Harvey J found the licence did not confer exclusive possession. In the agreement, OceanaGold was required to give the public and HDC the right to pass over licensed areas. OceanaGold had to comply with HDC’s requests to eliminate any nuisances that interfered with lawful public use. Other terms also supported HDC retaining exclusive possession such as its ability to grant further licences.

Harvey J found there was no improper purpose since the power to issue a licence to occupy was not a statutory power under LGA74, but a landowner right under the common law. Harvey J concluded that in granting a licence to occupy, HDC did not allow for mining activities and construction to happen in a regulatory sense.

Harvey J mentioned that the public policy issues associated with mining activities were not readily assessable in the framework of the present case. As obiter only, Harvey J also mentioned that given the public nature of the land and its character as a road, it may be appropriate for the consent application(s) to be publicly notified under the Resource Management Act 1991.

 

Applicable Principles: Right to pass and re-pass – public nuisance – whether agreement confers exclusive possession – landowner rights.

Held: The application for judicial review was declined.

 

Vivian Mitchell is an LLB/BA graduate.

 

Ours Not Mines Ltd v Hauraki District Council [2024] NZHC 63.

Subscribe to

LawNews

The weekly online publication is full of journalistic articles written for those in the legal profession. With interviews, thought pieces, case notes and analysis of current legal events, LawNews is a key source of news and insights for anyone working within or alongside the legal field.

Sign in or
become a Member
to join the discussion.

0 Comments

Submit a Comment

Your email address will not be published. Required fields are marked *

Latest Articles

Loading...