There are calls for Tauranga City Council to rescind its decision to give 11 Mission St to a Māori trust after council staff left out pivotal information from a report.

One councillor is threatening legal action if the decision is not rescinded.

But the chairman of the Elms Foundation says too much is being made of the left out information and the decision to give the land to the trust should stand.

In split decisions on Tuesday, the council voted down attempts to give the 1400sq m section, worth $1 million, outright to either the Ōtamataha Trust or the Elms Foundation.

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They agreed, six votes to five, to give the land to the trust on the conditions the Elms Foundation give its endorsement and if the two parties could agree on a long-term peppercorn lease of the land to the Elms.

The endorsement was a compromise devised by the council's swing voter, Councillor Rich Curach, because as far as he knew, the foundation had taken a neutral position on the council's decision.

Councillor Rick Curach was the swing vote. Photo / File
Councillor Rick Curach was the swing vote. Photo / File

Soon after, foundation trustee Stuart Crosby told the Bay of Plenty Times the foundation resolved in May that its first preference was to be gifted the land directly. Its second was for the land to go to the trust.

Crosby said the foundation notified council staff of that decision at the time. When he saw it was not in the draft report for Tuesday's meeting, he raised it again.

The resolution had been included in an earlier submission process but council staff decided not to put it in the report.

Former Tauranga mayor Stuart Crosby, a trustee of the Elms Foundation. Photo / File
Former Tauranga mayor Stuart Crosby, a trustee of the Elms Foundation. Photo / File

And when Curach asked about the foundation's position in the meeting, he was told they were neutral. No-one raised the May resolution.

After the meeting, Christine Jones, council's general manager of strategy and growth, acknowledged the information should have been put in the report.

She said the issue would be raised again at a council meeting on Tuesday next week, and in the meantime, staff were talking to the Elms Foundation.

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Curach said the omission was "absolutely, totally unacceptable".

"I found it unbelievable that staff could sit there having multiple opportunities to clarify the position..."

The "critical" information would have changed his vote. He would have supported giving the land to The Elms Foundation.

"Given that information was critical to the decision, that decision needs to come back to the council to be reconsidered."

Councillor John Robson has threatened legal action. Photo / File
Councillor John Robson has threatened legal action. Photo / File

Mayor Greg Brownless and Councillor John Robson - who both pushed for the land to go to the Elms - agreed.

Robson said that if the council did not rescind Tuesday's decision on grounds of the omission and take a new vote on giving the land to The Elms, he would pursue a judicial review.

"I will put $50,000 into the bank account of my barrister and instruct him to prepare an application for a judicial review."

Elms Foundation chairman Ian Thomas said there were no grounds for a judicial review.

"I am a former judge, I think I would know."

Elms Foundation board of trustees chairman Ian Thomas, a former judge. Photo / File
Elms Foundation board of trustees chairman Ian Thomas, a former judge. Photo / File

He said the foundation's position on 11 Mission St was neutral. The council's decision was political and the foundation did not want to influence it.

He said elected members were wrong to give any weight to the foundation's internal resolutions around its preferences, and believe those that were had "spurious" reasons for doing so.

"I can't believe they are making a mountain out of such a trivial gesture."

Thomas said his personal view was the foundation should endorse giving the land to the trust and formalise the lease agreement. He could not say what other trustees would think.

The foundation board was set to meet on Monday but in the meantime, he planned to ring around trustees to discuss the issue.

He hoped to "forestall any attempt" by the council to rescind its decision and get the council to give the trust time.

Councillor Larry Baldock says the council should wait for a decision from The Elms. Photo / File
Councillor Larry Baldock says the council should wait for a decision from The Elms. Photo / File

Councillor Larry Baldock, who pushed for the land to go to the trust, also said Tuesday's decision should stand.

"We shouldn't go off half-cocked next week."

He said the foundation should be given time to consider whether to give their endorsement and the council should wait for a response before rushing into any resolution changes.

"My personal view is the Elms trustees need to be very thoughtful. This decision is going to impact their relationships with iwi going forward."