Government began its appeal court bid yesterday to overturn a Supreme Court decision to block a controversial road scheme which threatened protected woodland.

And the case could set a precedent if Government is successful in its attempt to allow covenants to be changed.

In a ruling earlier this year, Chief Justice Austin Ward said former Environment Minister Arthur Hodgson had given no weight to a restrictive covenant at the Chaplin Estate in Warwick after he granted permission for another access road in 2000.

At the time Mr. Ward said, the Minister had a public duty to protect woodland conservation areas.

The scheme had already been rejected four times by the Development Applications Board and twice by independent planning inspectors before the minister over-ruled.

Yesterday, Government QC Mark Lowe argued the previous covenant - known as a Section 34 agreement under the Development and Planning Act 1974 - could be changed by the Minister.

Planners and original land owner, Charlie Chaplin's widow Lady Oona Chaplin had put the section 34 in place to protect the woodland in return for allowing her to subdivide the lot before homes were built in the early 1990s.

Mr. Lowe said the minister should take into consideration the section 34 but not be bound by it.

The estate is currently accessed through a tribe road from Cedar Hill but Mr. Lowe argued this access road had poor visibility and was narrow and unsafe.

At one point the president of the appeal court bench Sir James Astwood said the home owners were still using the current access road.

He said: "We might have a different view than the minister."

Home owners Keith James and Roger Raynor want access from Harbour Road.

Mr. Lowe said the owners had offered a new chunk of woodland which would more than replace that lost to the new access proposed from Harbour Road.

He said the minister had visited the site and taken into consideration the inspector's decision.

Mr. Lowe said Mr. Hodgson had taken into account the the relevant policy which allows access through woodland reserve if it is necessary for safe vehicle access, there is no safe alternative, width is kept to a minimum and specimen trees are avoided.

The minister had been satisfied that the visual impact of the new road would be ameliorated by existing vegetation and new planting when taking his decision said Mr. Lowe.

"The reasoning of the minister is not flawed as a matter of law and the judgement of the Chief Justice was incorrect to the extent that he considered that the Minister had failed to take the agreement into account."

The Chief Justice had taken the view that the minister was neglecting or refusing to perform his public duty to uphold the agreement, said Mr. Lowe.

Mr. Lowe argued it was for the minister not the court to decide the issue under the law and that he was not bound by the development plan.

He argued the Minister answered to the Premier and Parliament rather than the law courts on bad decisions.

Conservation officers and parks department opposed the access plan saying the woodland screened the densely-populated Cedar Hill area from Hamilton Harbour.

Conservationists feared the development would result in large quarrying and disrupt roots for Casuarina trees, making them prone to being blown down in a storm while exposing others to wind damage.

The woodlands have native and endemic species and was a habitat for the catbird, the cardinal and the Bermuda white eyed vireo.

The National Trust have argued violating the section 34 would set a dangerous precedent.

In court yesterday National Trust lawyer Alan Dunch wondered why the Government had appealed the case because the Chief Justice had not quashed the Minister's decision but merely remitted it back to the minister with the direction he reconsider it.

He said the appeals court was only there to deal with points of law.

Mr. Dunch also argued that the minister had no power to vary or discharge a section 34 agreement.