Ruling sets binding limits on how far councils can licence roads
New Zealand's Court of Appeal ruled a council-issued 40-year licence over an unformed road unlawful, jeopardising Oceana Gold's Coromandel mine development.
In Ours Not Mines Limited v Hauraki District Council [2026] NZCA 138, decided on 21 April 2026, the Court of Appeal declared the Hauraki District Council's decision to grant a licence to Oceana Gold (New Zealand) Limited unlawful and set it aside.
Oceana Gold held a mining permit under the Crown Minerals Act 1991 covering the Wharekirauponga orebody, located directly beneath the Wharekirauponga Forest in the Coromandel. The permit authorised exploration and mining activities beneath the land but did not extend to surface activities. To develop the mine, Oceana Gold planned to construct an underground "dual-decline" access tunnel approximately seven kilometres long, commencing from privately owned land and travelling beneath the forest to reach the orebody.
The mine also required up to four ventilation and escape shafts for health and safety purposes. Rather than applying to the Minister of Conservation for an access arrangement over the conservation land, Oceana Gold applied to the Hauraki District Council for a licence to construct the ventilation shafts on a council-owned unformed road running through the forest. The Department of Conservation advised the Council that granting the licence would undermine its legislative mandate to conserve the Wharekirauponga ecosystem. The Council disagreed and granted the licence.
On 15 September 2021, the Council granted the licence for a term of 40 years, conditional on Oceana Gold obtaining the necessary Resource Management Act approvals. During construction, temporary licensed areas of up to 400 square metres would cover most of the road's width, leaving only a five-metre unobstructed margin for public passage. Once construction concluded, the final structures would stand approximately eight metres high, each with a fenced footprint of approximately 100 square metres (and potentially up to 150 square metres), traversing about 10 metres of the 28 to 30-metre road width, which is roughly one third of the total.
Environmental interest group Ours Not Mines Limited sought judicial review of the Council's decision in the High Court. Justice Harvey dismissed the application on all grounds. Ours Not Mines then appealed.
The Court confirmed that a council's power to grant a licence over a road derives from its common law rights as a landowner. However, councils hold roads on trust for a public purpose: to enable the right of public passage. A council cannot authorise obstructions that appreciably interfere with that right, as doing so constitutes a public nuisance.
Applying the contextual "appreciable interference" test, the Court found the scale, duration, and semi-permanence of the licensed structures to be the decisive factors. The structures would functionally remove a significant part of the unformed road from public use for four decades. The Court rejected the argument that the road's remoteness and infrequent use justified the obstruction, reaffirming that unformed roads carry the same legal right of public passage as any busy city street. A road does not need to be completely blocked before an obstruction can constitute a public nuisance.
While not central to its core reasoning, the Court also noted that the Crown's right to resume ownership of the unformed road at any time without consideration further supported its conclusion that granting a 40-year licence of this scale was inappropriate.
The Court of Appeal allowed the appeal and declared the licence unlawful. The Court remitted the High Court's costs decision for reconsideration and ordered the first and second respondents to pay the appellant's usual disbursements on a joint and several basis. On the question of further costs, the Court noted that Ours Not Mines was represented on a pro bono basis and reserved leave for the parties to file memoranda on costs, with the appellant's memorandum due within five working days of the judgment and respondents' memoranda due within a further five working days, after which the matter would be decided on the papers.
Oceana Gold had separately applied for approval under the Fast Track Approvals Act 2024, which, if approved, could potentially render the appeal moot, though the Court noted that had not yet occurred at the time of judgment.
