Iwi wins bid to appeal on Sylvia Park

By ANNE GIBSON

A High Court judgment has granted the Ngati Maru iwi the right to go to the Court of Appeal over its objections to the planned $500 million Sylvia Park business development in Auckland.

Justice David Baragwanath in the High Court at Auckland said the iwi's need for recognition of protection of wahi tapu (sacred area) over the site should be considered.

He has released his written decision on Ngati Maru's case against the Auckland City Council and the Sylvia Park Business Centre, which sought to challenge a ruling in the Environment Court.

In the largest property project planned in New Zealand, Sylvia Park owner Kiwi Income Property Trust wants to transform its Mt Wellington land into a shopping/leisure/office/housing/transport/entertainment/ project of 148,000sq m.

Since the early 1940s, the block beside the Southern Motorway has been home to World War II storage sheds built for the United States armed forces.

But Kiwi has spent years in court battling to get its plans through and begin developing the land.

Kiwi is the largest diversified property group listed on the Stock Exchange and owns real estate valued at $880 million, including malls at Papanui, Porirua, Palmerston North and Hamilton.

In December, the Environment Court ruled against those opposing Kiwi's plans for Sylvia Park and turned down appeals by rival shopping mall owners Westfield NZ and Two Double Five Broadway, which owned a Newmarket shopping centre.

The two companies had argued against a March 9, 2000, council decision to approve a rezoning of the 21ha Sylvia Park site.

But Ngati Maru took the case a step further. The Environment Court had approved a scheme change for the land - based on a council proposal - on December 3 last year, but Ngati Maru objected.

The iwi's appeal against that Environment Court decision on questions of law was dismissed by Justice John Doogue in the High Court at Auckland on June 7, but then Ngati Maru applied to Justice Baragwanath for leave to challenge the Environment Court decision in the Court of Appeal.

In his decision, Justice Baragwanath said he had "decided that certain questions of law proposed by Ngati Maru are both legally and factually of such importance as to warrant consideration by the Court of Appeal,"

He noted that the respondents had argued about the status of Ngati Maru. They had stated that Ngati Paoa are "content with a protocol that has been put in place following consultation hui on February 17 and March 28, 2000, and ask why, if a scheme change is acceptable to Ngati Paoa as primary kaitiaki, should Ngati Maru have reason for concern".

The Treaty of Waitangi, the amount of earthworks involved and harm from the development on the environment were other issues considered in the case.

But Justice Baragwanath ruled against the arguments of the respondents.

He wrote that the Environment Court had focused "too narrowly" on the protection of wahi tapu and "erred in law" in its treatment of Ngati Maru's entitlement to continue to take part in the planning processes affecting the site.

Evidence had been given in the Environment Court case that umbilical cords and afterbirth were buried on parts of the site and that blood was spilt throughout the whole site, he wrote.

"The relationship between Maori and their ancestral land is not a mere verbal formula, but a value to be given serious weight because of its expression of the sensibilities of actual people," Justice Baragwanath wrote. "What to a Pakeha eye has no particular significance may be very different to one with actual understanding of Maori history."

Asked for comment yesterday, Kiwi's chief executive officer, Angus McNaughton, said the appeal had not held up site work as it had yet to begin.

"Ngati Maru has not won anything yet - they've just sought leave to go to the Court of Appeal. This obviously holds up the rezoning on the site, but it's not on the critical path and it doesn't stop us. We're working through the master plan and dealing with funding, major tenants and structuring, so this is something that is happening on the sidelines. They lost in the Environment Court and High Court already," he said.

An appeal hearing date has not been set.