J.SWAP site in Okauia Photo: RNZ / Cole Eastham-Farrelly
A quarrying company has been denied approval by the Supreme Court to appeal its failed bid to mine under protected bush.
Kaimai Properties Ltd, and its owner J Swap Ltd, wanted to mine andesite rock from 42 hectares of land close to Matamata in South Waikato.
The rock from the quarry is used in infrastructure projects and J Swap has said it will run out of material if it is unable to extend its existing quarry into the protected land.
The company bought the property with the covenant in place on the high value conservation land. Once a QEII covenant is approved, land cannot be developed, even if ownership changes.
The company lost a High Court case as well as an appeal of that decision. It then applied to the Supreme Court seeking leave to appeal the Court of Appeal court's decision. A judgment released 8 April dismissed J Swap's application and awarded $2500 in costs to the QEII Trust.
The Supreme Court's judgment stated J Swap did not explain why criteria to obtain the court's permission to appeal were met. Criteria include public importance, a miscarriage of justice, commercial significance or a significant issue related to the Treaty of Waitangi.
J Swap spokesperson, Stuart Husband of Grassroots Consulting, said the company was disappointed with the decision. Its case had centred on whether the correct process had taken place when the covenant was granted. He said J Swap had a mortgage on the property when the land was protected by its previous owner, but despite this was not consulted by the QEII Trust when the covenant was put in place by land's owner.
"I guess the banks would have to be nervous that they don't get consulted before it goes into a QEII."
He shared a statement from the company which highlighted that the company felt the courts had ignored private property rights.
"This is the taking away of registered commercial interests protected pursuant to a mortgage without notice, without compensation and without the consent of the mortgagor. The result seems to accept that the QEII National Trust has powers equivalent to the taking of land pursuant to the Public Works Act. This seems to be a breach of rights enshrined in the New Zealand Bill of Rights."
Husband said J Swap was "regrouping" before deciding on next steps.
QEII Trust chief executive Dan Coup said the argument that a bank or mortgage holder would need to be consulted before a covenant was approved had been covered in court.
"I think that's a tenuous argument, and I think that's what the courts found."
The High Court found the mortgage did not prevent the previous land owner from placing a covenant over parts of the land.
Coup said the trust was happy with the latest judgment.
"We didn't think it had a high chance of being considered by the Supreme Court as something important under their priorities, but you never know. We're pleased and relieved, but not terribly surprised."
He said the win highlighted the robustness of covenants and also demonstrated that the trust was willing to "go into bat for them" to look after protected land in perpetuity.
The 42 hectares is the most challenged covenant the trust administers.
J Swap had brought four cases against the trust, and been unsuccessful each time. It also tried to get special legislation written to gain access to quarry the land through a Treaty of Waitangi land swap deal. A bid to be included in the Fast-track Approvals Act was also unsuccessful.
Coup was not convinced the latest Supreme Court dismissal will end the company's efforts to quarry the protected land.
"They can still ask again to have the covenant removed, that may be their next move. Or there might be some legal pathway that we haven't thought of or imagined yet. I guess we are prepared for this not to be the end."
