A Countdown supermarket on the site of the Bureta Park Motor Inn is not out of the question yet, with Environment Court mediation processes currently underway.

Progressive Enterprises is appealing Hearings Commissioner David Hill's decision last November to decline consent for the proposed 4,620m2 supermarket development.

Progressive Enterprises is appealing Hearings Commissioner David Hill's decision to decline the proposed Bureta Countdown plans.

Tauranga City Council's principle planner Rebecca Perrett says there has now been one mediation session with no result released by the court.

Mediation is an appellant's first step on the track to a court hearing, if difficulties are unable to be resolved.

The proposed supermarket site is zoned residential, even though it has been home to the former Otumoetai Licensing Trust hotel (now the Bureta Park Motor Inn) for about 40 years.

On November 30, 2012, David denied the application due to the noncomplying land use activity, and traffic issues that would be created by the project.

While the redevelopment would provide many of the benefits PEL claims, at the end of the day the proposal will introduce a level and intensity of non-residential activity not seemingly anticipated in an urban residential zone, says the commissioner's decision

Traffic issues are also a big factor. Former owner Perry Developments obtained resource consent in 2009 for a mixed residential commercial development at Bureta Park that planners say will generate 357 peak hour movements – compared with 546 peak hour movements, from half the area.

The fact the other half of the residentially zoned property is on the market was also mentioned as a factor.

'It would appear that the applicant proposes to take all of the benefit of the consented effects into the western half of the parent site leaving the future owner of the eastern site to take its chances,” says David.

'While such is undoubtedly legitimate practice in commercial terms, compressing the consented effects from a larger site into a smaller one would not appear to be comparing apples with apples as far as the Act is concerned.”

The commissioners also find a proposal to shift The Mill bottlestore to Vale Street not conducive to good planning and operations, and have negative social effect with the city council's own pensioner housing directly opposite the site.

The law requires that before being eligible for consideration generally under section 104 of the RMA, an application for a non-complying activity must satisfy the decision maker either that its adverse effects will be minor, or that it will not be contrary to the objectives and policies of any relevant plan or proposed plan.

'In other words, the threshold for satisfaction is that we must be certain,” says commission chair David Hill.

Without understanding the demands that would be created from the development of the land to the east of the supermarket site, and the continued reliance on the use of Bureta Rd as a primary servicing road for the developments, there is significant doubt about the capacity within the road network, the commissioners say.

The higher demands of a full site development on the Ngatai and Bureta intersection and to a lesser extent, the local roads feeding into Bureta/Vale intersection, would have a more than minor impact on network capacity and safety.

'We consider that to approve a supermarket on part of the site without a high degree of certainty as to the use of the eastern portion, where access is onto Vale St only and hence capacity is even more limited than for the western part of the development, is not an appropriate outcome.”

Ordinarily changing zoning from residential to commercial would be undertaken by means of a Plan Change - requiring an associated careful traffic assessment of both the local and wider network effects. This has not been undertaken, so the magnitude of any such effects cannot, with confidence, be said to be minor, says David.