Plans to fly a giant version of the NZ alternate flag from the Elizabeth St/Takitimu Drive flagpole are being challenged by Mount Maunganui lawyer Rob Paterson.

Tauranga City Council has permission from the government committee that looks after flag flying and has checked the resource consent about a plan to fly the alternate flag on alternate days, but Rob says the flagpole's consent only permits the New Zealand flag to be flown.

Tauranga City Council is going to fly the alternative flag on the Elizabeth Street/Takitimu Drive flagpole.

Rob was a submitter on the original Resource Management Act application to site the former Woolworths flagpole there in 2006.

'In the past week or so, media reports confirm that council and associated parties intend to remove the NZ National Flag and fly an alternative flag in contravention of the RMA Consent.

'Any breach of this nature is unlawful and illegal, and the public can rightly expect council to comply with the law and not deliberately flout it particularly as the Tauranga Council is the consent holder, consenting authority and enforcement authority,” says Rob in a letter to the councillors this week.

Rob expressed concerns before the terms of the original RMA consent for the flagpole were not being adhered to.

'The Resource Consent specifically stipulates only the New Zealand National Flag can be flown.

'In addition there can be no public gatherings or ceremonies at the site of the flagpole.”

The 3m x 6m alternate lag is being sponsored by businessman and BVL chairman Peter Farmer.

Mayor Stuart Crosby says the opportunity to see a giant version of the alternate flag flying from the Elizabeth Street/Takitimu Drive flagpole is the result of a request from Bay of Plenty MP Todd Muller, and the sponsorship of Peter Farmer who is paying for it.

'We have to make it very clear, we're not endorsing the new proposed flag. We propose to fly them both to generate interest and debate over the upcoming referendum,” says Stuart.

The contents of Rob's letter is being assessed by the city council legal team, and then they will make a decisions, says Stuart. The big flag is under construction.

Those in council who promote flying the alternative flag will effectively be parties to any breach of the Resource Consent which amount to a premeditated and deliberate act, says Rob.

He says Stuart is aware of the legal position from correspondence in 2010 and 2011.

Peter Farmer, representing the Tauranga Community Flagpole Trust, was the instigator of the original flagpole project, says Rob. That Trust eventually paid for the flagpole relocation and reconstruction.

'And as I recall, gave assurances that the costs of maintaining same would be met by the Trust, then left it to TCC ratepayers to foot the bill with a $5,000 per year budget for the purchase of new flags, banners, repairs and maintenance,” says Rob.

While it's generous of Peter Farmer to pay the cost of making an alternate flag, the flagpole on the roundabout is not an option where it can be flown, because that would be unlawful and against the RMA consent, says Rob.

'To every New Zealander, it is a fundamental principle that the law be complied with, not deliberately flouted, particularly by a local authority, in this case Tauranga City Council.

'Any failure by council as the enforcement authority and consent holder to take remedial action in respect of any breach that occurs will amount to a continuing breach of the Resource Consent.”