An Otumoetai business owner is frustrated he has been told to leave his premises to make way for a new Countdown supermarket, despite the development still being before the Environment Court.

Bureta Trust Bar owner Kevin Fraser has been given notice by Progressive Enterprises to be out of his premises by November.

Bureta Trust Bar owner Kevin Fraser faces an uncertain future.

Progressive, which purchased the land in December 2011, is seeking resource consent to construct a 4,620m2 Countdown supermarket, retail shops, liquor store and associated on-site parking on the site at the intersection of Vale Street and Bureta Road.

The site is zoned residential, despite being home to the former Otumoetai Licensing Trust Hotel, now the Bureta Park Motor Inn, for about 40 years.

But Kevin is questioning the legalities as the supermarket is currently in limbo after resource consent was rejected last November due to the noncomplying land use activity, and traffic issues.

Progressive is currently appealing Hearings Commissioner David Hill's decision through Environment Court mediation processes.

Kevin, who has owned the bar since 2009, believes he has been kept in the dark about proceedings with the notice giving him no details apart from a deadline to vacate.

'From what I gather it is under mediation so it's all top secret,” says Kevin.

'They do have a six month redevelopment clause, but of course at this stage there is no redevelopment. It was just suggested to me that I stick to these dates and I don't really see on what grounds.”

Since mediation began there has been no communication between himself and Progressive and he is frustrated tenants are being excluded from the negotiation process after being promised inclusion in the redevelopment.

'Until the notice period it was only to make sure I pay the rent and if there is a redevelopment I always hoped I'd somehow be included in it - because I had existing rights and because it's residential land.

'You would expect there would be an application for building and it would be approved and obviously then you would say ‘well the development is happening'. But they have at this stage played it so close and until the notice period they have always maintained there would be something for me.”

Tauranga City Council planner Rebecca Perrett says as land owners, Progressive is legally entitled to issue eviction notices to their tenants, including Kevin.

'Anyone who owns property and has tenants in it can ask their tenants to move on for whatever reason they want; it's part of property law,” says Rebecca.

'The fact that they might be trying to align that with timing of the consent is a possibility, but at this stage we are not through consultation of that.

There has been one mediation session between Progressive and the Commissioner 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 commissioner also found the proposal to shift the The Mill liquor outlet to Vale Street not conducive to good planning and operations, saying the use of the building could have negative social effects with Council's 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.

But Rebecca admits the proposal is not 'dead in the ditch” with the possibility other options might be on the table as discussions are still ongoing.

'Given it's been this long since the hearing and the mediation things are trying to be worked on as opposed to stop and say ‘we don't go any further'.”