Ours Not Mines Limited v Hauraki District Council - [2026] NZCA 138

Local Government — Powers — Mining — Roads— Public Nuisance

The Hauraki District Council (the Council) owns an unformed or paper road running through the Wharekirauponga Forest, which forms part of the Coromandel Forest Park. The forest (apart from the unformed road) is Crown Land administered by the Department of Conservation. The road itself is indistinguishable from the surrounding forest.

Oceana Gold Ltd (Oceana), a mining company, holds a mining permit in respect of the Wharekirauponga orebody, which is located directly beneath the Wharekirauponga Forest. However, that permit only covers exploration and mining activities that occur beneath the surface of the land. The permit does not authorise any mining activities or infrastructure on the surface. In order to conduct surface-level work or build structures on the surface, Oceana Gold must secure separate property rights (such as a licence to occupy or a Department of Conservation access arrangement) together with any necessary resource consents.

Oceana proposes to develop a mine beneath the Wharekirauponga Forest. The mine requires up to four ventilation shafts for health and safety purposes. The final footprint of each of these vents would be approximately 100 square metres, and possibly up to 150 square metres. Rather than applying to the Minister of Conservation for an access arrangement to enable it to build these vents in the Wharekirauponga Forest, Oceana instead entered into a licence with the Council enabling it to construct the ventilation shafts on the unformed road running through the forest. The licence is for a 40 year term.

Ours Not Mines Ltd (ONM), an environmental interest group, challenged the Council’s decision to grant a licence to Oceana. At first instance, the High Court held that the Council was acting within its powers and the licence was lawful. ONM appealed.

Did the Council have the power to grant the licence? Held: No.

While the Council’s ownership of the unformed road is derived from the Local Government Act 1974 (LGA 1974), that Act is not a code in respect of the Council’s roading powers. Rather, the Council’s roading powers are derived from both the common law and a range of statutory sources. The Council has a pre-existing common law power as landowner to grant licences over roads in its ownership.

Critically, however, council owned roads are held on trust for a public purpose, namely to facilitate the public right to pass and repass over the road (Fuller v MacLeod [1981] 1 NZLR 390 (CA) and Man O’War Station Ltd v Auckland City Council [2000] 2 NZLR 267 (CA)). Accordingly, the Council may only grant a licence over a road if the licenced activities or structures will not “appreciably” interfere with the public’s right of passage. To do otherwise would be to authorise a public nuisance, which is beyond the scope of the Council’s common law powers as landowner (Lower Hutt City Council v Attorney-General ex rel Moulder [1977] 1 NZLR 184 (CA)).

The requirement of an “appreciable” interference means that not all obstructions to the public’s right of passage will be actionable. In determining what constitutes an “appreciable” interference with the right to pass and repass, relevant factors include the quantum and duration of the interference (Harper v GN Haden & Sons Ltd [1933] Ch 298 (CA)). The existence of the right to pass and repass does not depend on how often a road is used or whether it has actually been formed. Nevertheless, what constitutes an “appreciable” interference is context dependent. Hence, the nature, location and usage of the road are also relevant factors.

Applying the appreciable interference test to the present case, the Court found that proposed vents would constitute an appreciable interference with the public right of passage. The licence purports to permit construction of four vents up to eight metres tall, with a footprint of 100 square metres (that may increase to 150 square metres). The works involve excavation and long-term installation of steel and concrete infrastructure. During the construction, the area in usage will be even larger, leaving only a five-metre unobstructed margin for pedestrians to use. The final structures will be approximately 10 metres wide, taking up roughly one third of the road’s width. Further, the 40-year licence term is very lengthy. The licence authorises obstructions that are materially different to the relatively minor or temporary encroachments typically tolerated on roads at common law.

The fact that some pedestrian access will remain does not negate the existence of a public nuisance. The land within the licensed areas is rendered unavailable for any other use, including public passage, for decades. There is no requirement that a remote or unformed road must be completely blocked before an obstruction can constitute a public nuisance. While the road is currently not in use and may never be, this context can only be taken so far. If the Council is of the view that the road is no longer needed for roading purposes, it could embark of the process of stopping the road or advise the Crown of its view that the land is no longer required for a road. As the Crown has a statutory right to resume ownership of unformed roads at any time, without consideration, the likely result in either case would be that the road would then be resumed by the Crown and become part of the Wharekirauponga Forest. It would then be subject to the same constraints as the surrounding Crown land.

As the licence permits activities and structures on the road that constitute an appreciable interference with the public’s right of passage, it purports to authorise a public nuisance, which the Council has no power to do. The decision to grant the licence is accordingly declared unlawful and is set aside.

As the Court decided that ONM’s appeal succeeded on this ground, it was not necessary to address the alternative grounds, namely that the Council had exercised its powers for an improper purpose (to circumvent the stringent requirements of the access regime for mining on conservation land) or that the licence was in substance a lease, which the LGA 1974 prohibits the Council from granting.