The future of the ancient Ōpihi Whanaungakore urupā may hang on a small legal technicality.
Photo: CHARLOTTE JONES / LDR
Te Rūnanga o Ngāti Awa and Ngāi Taiwhakaea are pinning their hopes of stopping the development of a residential subdivision and retirement village next to the wāhi tapu site on the argument that a retirement village does not count as a "residential activity".
Earlier this year, independent commissioners upheld consent granted by Whakatāne District Council for the subdivision next to the urupā in which some of the most significant ancestors for the two iwi are buried.
The urupā dates back to pre-colonisation and is still in use today.
The iwi are now seeking leave to appeal that decision in the Environment Court.
Yesterday, their lawyers sought to convince Judge David Kirkpatrick that an appeal was necessary.
Counsel for Ngāti Awa Horiana Irwin-Easthope said the issue before the court was whether a retirement village was classifed as a "residential activity" under the Resource Management Act.
This is an important point as the land is zoned for residential use only.
Irwin-Easthope argued a retirement village could not be a residential activity, because there was often a whole host of other associated activities.
These could include hair salons, golf courses, basketball courts, and movie theatres within the village complex.
Irwin-Easthope said her client and Ngāi Taiwhakaea could not provide cultural impact assessments of the retirement village because there were no clear plans for the village.
The resource consent application does not outline exactly how the retirement village will look because the developer, MMS GP Limited, will not be constructing the retirement village itself. This will fall to a specialised retirement village company yet to come on the scene.
Irwin-Easthope said as MMS GP had chosen to "bundle its consents", the entire application could be subject to an appeal for the one non-conforming aspect.
Counsel for the developer Vanessa Hamm said a retirement village was a residential activity and communal facilities were allowed under the Resource Management Act, because they were associated with this residential activity.
For example, a hair salon for the use of the retirement village residents was similar to a homeowner using a sleepout as a garage band studio.
When the time comes to construct the retirement village, detailed design plans must be submitted to the council.
Judge Kirkpatrick said it might be difficult for those outside the planning process to understand how the retirement village might look and what it might involve.
Hamm agreed but said that did not make it unlawful.
She said her client had already amended plans for the subdivision to include larger green spaces between homes and the urupā.
Lawyer for the council Andrew Green reiterated Hamm's point that communal facilities within the retirement complex were associated with the residential activity of the village and were therefore legal.
Judge Kirkpatrick has reserved his decision.
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