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High Court approves $500m Shelly Bay housing development

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Wellington.Scoop
The High Court today dismissed a challenge against plans to redevelop Shelly Bay with 280 apartments, 58 town houses, a 50-bed hotel, and a rest home for 150 people. Enterprise Miramar Peninsula had questioned resource consents granted for the $500m project. But the court rejected the group’s request for a judicial review.

News from WCC
Wellington Mayor Justin Lester has welcomed today’s High Court decision to dismiss judicial review proceedings blocking the proposed multi-million dollar development of Shelly Bay. “This is an excellent result. This project aims to transform Shelly Bay for the better and it has my wholehearted support.

“It’s an endorsement of the City Council’s planning processes for Shelly Bay, but, more importantly, it’s an endorsement of the proposal by iwi and The Wellington Company to turn a dilapidated site into something special and beneficial for Wellington.

“I’m looking forward to working with local iwi and getting this project under way. This rundown area has sat dormant for a long time and it’s exciting we will now be able to improve the area.”

Acting City Council Chief Executive Kane Patena has greeted the decision as a vindication of both the proposed development and of the Council’s planning process.

“We were always confident the Council had followed good process in terms of its procedures and its interpretation of legislation.”

Mr Patena says the main points of the decision are:

The judicial review application had two main aspects: first, the Council’s decision to determine the resource consent decision in-house (as opposed to delegating it to a hearing commissioner) was said to show apparent bias, and second, the decision to grant consent was said to be legally wrong.

The High Court accepted the Council’s submissions that both decisions were lawfully available and properly made. Following a careful review of the documents, and the affidavit evidence filed, the Court found no basis for an allegation of bias. In particular, the Judge did not accept any criticism of the Council about the involvement of Chad McMan and Steve Spence at different times on different aspects of the proposal. The Court pointed to evidence confirming that the decision-makers appropriately and properly applied independent judgement to the decisions they were asked to make.

The Court also went further and accepted our argument that the notion of bias does not easily apply to a Council as decision-maker. The Court agreed that s 34A of the RMA is a permissive provision enabling Councils to delegate decision-making to hearing commissioners for a range of reasons. The provision does not require Councils to do so where it has an “interest” of some sort in the application made. In coming to this conclusion, the Court did not accept that the practice of other councils around the country was required legally. This ruling confirms that WCC’s approach to delegations of resource consent decisions (under which non-notified consent decisions are processed and determined by the resource consenting team) is lawful and proper.

So on this aspect of the case the decision supports WCC both factually, in that there is no basis for the allegation of apparent bias, and legally, in that the Council’s actions in processing the consent were all consistent with what HASHAA intends.

Council consent decision legally correct, decision-makers properly applied HASHAA, no basis for criticism of Council’s approach to infrastructure

Enterprise Miramar had made a long list of criticisms of the Council’s decision. The Court dismissed all of those criticisms. Without enumerating them all, the significant ones were that the Court’s confirmation that the Council had correctly applied s 34 of HASHAA, giving appropriate weight to the purpose of HASHAA (and not double-counting it, as alleged), and that the Council had properly understood the need to be satisfied that sufficient and appropriate infrastructure would be provided.

The Court did not accept Enterprise Miramar’s expert evidence suggesting that the Council had misapplied its Code of Practice for Land Development, and considered that some of Enterprise Miramar’s witnesses did not appreciate key differences between the RMA and HASHAA. Overall, Enterprise Miramar’s position was found to be untenable.

The Council had accepted that processing the consent had taken longer than HASHAA expects. This, as the Judge said, was “regrettable”, but that this did not affect the legal validity of the decision. The Judge thought it was ironic that an application that HASHAA required to proceed quickly had been held up even longer by the judicial review application.

September 27: Close vote approves sale of council land at Shelly Bay
September 4: 1100 public submissions about Shelly Bay
May 1: Shelly Bay becomes joint venture

14 comments:

  1. Concerned Wellingtonian, 9. April 2018, 14:39

    How many affordable houses will there be at Shelly Bay?

     
  2. Len Assicas, 9. April 2018, 16:19

    Affordable? It all looks rather exclusive to me. Indeed, I wonder how many of our CEOs and judiciary will be getting penthouse apartments.

     
  3. Sam Donald, 9. April 2018, 17:40

    @Concerned Wellingtonian @Len Assicas – One wouldn’t normally expect prime waterfront land to be the place of affordable housing, but additional housing at any price level will reduce overall pressure on Wellington’s housing stock and so help keep a check on the rate of general price increases. $500m of development in close proximity to a future light rail spine linking Miramar with the Hospital, Massey Uni, Te Aro, the CBD and the Railway Station sounds like sensible city planning to me.

     
  4. George, 9. April 2018, 22:33

    Sad day for Wellington. An iconic Wellington recreation area lost. Ratepayers will foot the bill for infrastructure while developers profit. Expect rates to increase.

     
  5. banana, 10. April 2018, 10:05

    @ Sam – hang on a sec there! You’re speaking sense. This isn’t the forum for such thoughts. This is the knee-jerk nimby site…

     
  6. Ian Apperley, 10. April 2018, 12:09

    Spin spin spin… It doesn’t validate the Council processes really, the Special Housing agreement effectively overrode the allegations that were made, and appear to remain unanswered.
    “The HASHAA simply does not provide for the Miramar community to have a say on applications such as this.”
    And of course the HASHAA was spun through with affordable housing and all kinds of wonderful other amenities as bait.
    The WCC must be rubbing their hands together with glee.

     
  7. MC, 10. April 2018, 13:55

    Banana: summed it up perfectly.

     
  8. Andrew, 10. April 2018, 14:19

    And now the danger has past, the Mayor can repay the developer the donation he received and reinstall himself into the process clean as a whistle.

     
  9. Greenwelly, 10. April 2018, 14:27

    @sam, >in close proximity to a future light rail spine linking Miramar with the Hospital

    Shelly Bay is ~3km from Cobham Drive/Miramar Ave, so that’s like saying Zealandia is in close proximity to the Beehive or railway station. With only ~400 dwellings, there will never be enough demand to run a decent bus service to the place, so residents will likely just drive….

     
  10. Averil, 10. April 2018, 22:19

    The council is yet to explain why land owned by Wellington ratepayers was sold to a private developer for at least 8 million less than market value.

     
  11. Sam donald, 10. April 2018, 23:05

    @Greenwelly. Fair call – ‘fairly easy reach’ would have been a better term than ‘close proximity’. Hopefully a safe cycle route will be included with ample secure cycle parking at LRT stations. With 400 new dwellings likely generating a fair number of peak time trips, it would seem that a shuttle bus to and from the development to an LRT station could be a commercially viable opportunity for some of the taxi drivers no longer required for the Airport – CBD run.

     
  12. adam, 10. April 2018, 23:19

    @Greenwelly – so you are suggesting this needs to be a bigger, grander development. (I agree.)

     
  13. Russell Tregonning, 11. April 2018, 6:48

    Climate scientists are warning that new housing developments should be inland away from the rising seas. This along with the very limited access to the Shelly Bay site makes this extravagant project look most unwise.

     
  14. Sam Donald, 12. April 2018, 14:51

    @Russell. The developers may yet take heed of that sage advice and design with rising sea levels and increased storm events in mind. However until the WCC restrict all new housing developments across the city to say 3m above sea level and maybe a defined distance from the coast, we can’t really place limits on a private landowner’s rights to develop on a one-off basis like that. Maybe a ferry service from Shelly Bay to the CBD could be another access option? Or a walkway and mountain bike track up and over into Miramar, with Active Transport encouraged to the film industry area?