The argument will be solely based on points of law after High Court Justice John Fogarty rejected a application from Fr Mark Chamberlain and Holy Name Church to introduce new evidence to support shifting the altar to the Dunedin church.
The Environment Court had already ruled the altar was a fixture, not a chattel, and could not be moved without resource consent from the Waitaki District Council.
But since that ruling in October last year, Fr Chamberlain had further investigations carried out, including 25 digital radar scans of the altar and its concrete foundation, followed by exploratory drilling.
The High Court was asked to hear the additional evidence from those investigations which, it was contended by Fr Chamberlain, showed the altar was not fixed, was a chattel and could be shifted without resource consent.
He contended the scanning and drilling had rendered irrelevant the opinions expressed in factual evidence to the Environment Court.
Appeals to the High Court against Environment Court decisions are on points of law, although leave can be granted to hear factual evidence if there are "special reasons".
"Special reasons" were used sparingly, Justice Fogarty said.
The Environment Court had sufficient evidence on which to base its decision as to whether the altar was a chattel or fixture.
"There is no doubt that the new evidence being proposed is highly relevant. There may well be a sense of injustice on the part of the Holy Name Parish and Catholic Church," Justice Fogarty said.
However, he did not think that amounted to a special reason to admit the new evidence.
The parties will now focus on points of law when a date is set for hearing the appeal, expected to take half a day.
The parties in the appeal are Fr Chamberlain, as trustee of the Trinity Trust; Trustee Executors and Naylor Love Construction, the company which was to remove the altar, and Susan Scott of the Teschemakers Heritage Protection Society, who opposed removing the altar and stained glass windows.
The chapel, built in 1916, is on land donated by Ms Scott's grandfather, Peter McCarthy, in 1911 and 1918 for the boarding school. He also donated buildings.
The 270-piece altar, from Italy, was donated to the chapel in 1926 by the Hart family.
When the Dominican Sisters sold Teschemakers in 2000, they intended to gift the altar and the chapel's stained glass windows to the Holy Name parish.
That intention was formalised by a deed of transfer in 2010.
In August last year, attempts to remove the altar were thwarted by protesters who obtained an interim enforcement order preventing its removal, which was confirmed by the Environment Court in a decision in October last year after Fr Chamberlain had applied for the order to be set aside.
The court said the altar and stained glass windows were fixtures and could not be removed without a resource consent because that would be an alteration to the chapel, listed in the Waitaki District Plan as a category B heritage item.
Fr Chamberlain and the Trinity Trust then appealed to the High Court, arguing the Environment Court made errors in law. They also sought to introduce new evidence after further investigations.
Timeline
February 1912: Teschemakers Catholic girls' boarding school opens.
1916: Chapel built.
1926: Hart family donates altar for chapel.
2000: Property sold to a Japanese businessman, the late Dr Hirotomo Ochi, but specified chattels in chapel, including altar, excluded.
July 2010: News that altar, stained-glass windows and other items to be removed after being given by Dominican Order to Holy Name Parish in Dunedin prompts opposition.
August 2010: Protest stops altar removal until Environment Court issues stay.
April 2011: Some items removed, but altar and windows remain.
October 2011: Environment Court rules altar is a fixture and cannot be removed without resource consent.
November 2011: Issue appealed to High Court by Fr Mark Chamberlain and Holy Name Church.
October 2012: Interim High Court decision rejects hearing new factual engineering evidence.
