Wellington Scoop

Appeal Court rejects plan for new development at Shelly Bay


News from Court of Appeal
The Court of Appeal today released its judgment in Enterprise Miramar Peninsula Inc v Wellington City Council. The Court allowed the appeal and quashed a decision granting resource consents for a significant development at Shelly Bay, Wellington.

2. The Court found that the Wellington City Council (the Council) made an error of law in its interpretation and application of s 34(1) of the Housing Accords and Special Housing Areas Act 2013 (HASHAA) when determining whether or not to grant resource consent. As a result of the error, matters such as the environmental effects of the proposed development were not given appropriate consideration and weight by the Council.

3. The effect of the Court’s judgment is that the Council must reconsider the application for resource consent afresh. The Court has ordered that the Council should consider whether or not to appoint independent commissioners to perform that task, given the extent to which the Council has defended its original decision in this litigation.



4. The Wellington Company Ltd (TWCL) applied for resource consent for a significant development at Shelly Bay on 15 September 2016. The proposed development involved the construction of some 350 dwellings made up of 12 multi-level apartment buildings of up to six storeys high (containing approximately 280 apartments), 58 townhouses and 14 individual dwellings. The proposal also included a 50-room boutique hotel, an aged care facility and buildings for commercial and community activities.

5. Prior to this, in 2015, the Governor-General, on the recommendation of the Minister for Building and Housing, declared Shelly Bay to be a special housing area under HASHAA. The purpose of this legislation is to enhance housing affordability by facilitating an increase in land and housing supply in regions or districts identified as having housing supply and affordability issues. Given that the development company’s proposal was predominantly residential, the application for resource consent was determined under the more permissive resource consenting process available under HASHAA. Under HASHAA, the usual controls in the Resource Management Act 1991 (RMA) are relevant considerations, but they do not directly apply. Therefore, a development that could not be granted resource consent under the RMA could be granted resource consent under HASHAA.

6. The Council granted the application, subject to conditions. Enterprise Miramar Peninsula Inc (Enterprise), an incorporated society representing the interests of the business community in Miramar, challenged that decision in the High Court. The High Court upheld the Council’s decision in a judgment released on 9 April 2018. Enterprise appealed to the Court of Appeal.

The judgment

7. This Court has found that, in considering the application for resource consent, the Council had relied on the purpose of HASHAA, which is to enhance housing supply, without giving sufficient consideration to the other matters listed in s 34(1) of the Act. For example, the Council failed to give substantive consideration to the matters in Part 2 of the RMA, such as the preservation of the natural character of the coastal environment and the protection of historic heritage from inappropriate use and development.

8. Furthermore, the Council relied on the need to enhance housing supply in order to find that the environmental effects of the proposed development were no more than minor. The need to enhance housing is not logically relevant to the question of whether an environmental effect is more than minor. The Council’s approach meant that the environmental effects of the development were not given the required recognition and weight.

9. Properly interpreted, s 34(1) of HASHAA required the Council to assess the matters listed in subs (1)(b)–(e) uninfluenced by the purpose of the Act, before standing back and conducting an overall balancing. The Court has therefore directed that the application for resource consent be remitted back to the Council for reconsideration.

10. The Court rejected Enterprise’s arguments that the Council had made other errors in its application of the law. The Court also rejected Enterprise’s argument that the Council should have appointed independent commissioners to determine the developer’s application for resource consent from the outset. Enterprise argued that the Council was interested in the application because of its public and private support of the proposed development and its ownership of land that the developer would need to lease or purchase to carry out the development.

11. The Court rejected these claims, finding that the Council had brought an open mind to its decision, and was not disqualified by the interests referred to by Enterprise. However, given the extent to which the Council has defended its original decision in this litigation, with Council employees being required to give evidence, the Court ordered that the Council should consider the appointment of independent commissioners to reconsider the resource consent application.

Scoop copy of judgment: 2018NZCA541.pdf

This summary is provided to assist in the understanding of the Court’s judgment. It does not comprise part of the reasons for that judgment. The full judgment with reasons is the only authoritative document. The full text of the judgment and reasons can be found at www.courtsofnz.govt.nz.


  1. Save the Basin, 3. December 2018, 14:12

    You’d think the WgtnCC might have learnt the lesson by now that they actually have to follow the law when it comes to resource consents. Clearly the Basin Reserve flyover decision didn’t teach them that lesson. Perhaps this one will. [via twitter]

  2. TrevorH, 3. December 2018, 14:23

    Well done Enterprise Miramar, this is excellent news for all Eastern Suburbs residents and users of the beautiful Marine Parade! Building this behemoth development in the absence of adequate roading, sewerage and stormwater infrastructure in an area likely to be affected by sea-level rise was never an intelligent idea. Will Enterprise Miramar be compensated for their efforts? Lester and Lavery should resign forthwith.

  3. greenwelly, 3. December 2018, 14:44

    Hmm…. Council making faulty decisions with consents involving SHAs and the Wellington Company,

    I suspect lawyers are frantically checking that all the Ts and Is were crossed and dotted on the Erskine development…..

  4. aom, 3. December 2018, 14:45

    Finally some deeper pockets have proved the obvious, WCC uses a ‘kinda legal’ approach to getting its way – especially for its developer friends. Usually the Council burns off challenges by attrition, knowing that the ratepayers are an endless source for paying legal costs, and that appellants can’t generally afford to mount appeals. It now remains to be seen if the Kumutoto Site 9 decision of the Environment Court is a ruling or just an opinion that can be over-ridden, as claimed by the CEO’s legal advisors.

  5. D'Esterre, 3. December 2018, 14:50

    The Shelly Bay development has, from the beginning, looked impracticable. It’s a great puzzle that Council allowed it to get to this point, given all the sceptical voices, both at the time of the first proposal and since.

    Development of any sort there would be bedevilled by the sheer difficulty of providing infrastructure, the risks of landslide from the hills behind, and the manifest inadequacy of the access road.

    Given that this was a cockamamie proposal from the outset, let’s hope that we hear no more of it. Certainly no more ratepayers’ money or assets should be applied to it.

  6. michael, 3. December 2018, 17:44

    This is another example of the council bending the rules for the benefit of the developers, while costs to defend their decisions continue to increase for long-suffering rate payers. And, even when it is clear the environmental effects of a proposed development are considerably more than “minor”, council officers do not notify the majority of development applications for public consultation or hold hearings. One must question the influencing factors and rationale behind these decisions.

  7. Michael Gibson, 3. December 2018, 19:59

    Perhaps the people at WCC will take the unusual step of listening to the people who are Wellington residents this time.
    This Shelly Bay fiasco is NOT funny.

  8. Polly, 4. December 2018, 8:42

    Well done Enterprise Miramar and interesting to read in the Dompost that the CEO declined to comment and the Mayor was unwilling to comment…..one has to ask how much this has cost the ratepayers.

  9. michael, 4. December 2018, 8:54

    @Michael Gibson – agree. Shelley Bay, Island Bay, the Movie museum, the Chinese Garden etc. These must have cost ratepayers a fortune. How many more fiascos do we have to tolerate before someone is held accountable. I know I cannot afford anymore rate rises and I am not alone.

  10. Michael Gibson, 4. December 2018, 9:13

    Thank you, michael. Yesterday I emailed Dr Lavery: “What is the total paid by the Council for all legal costs in respect of the proposed development at Shelly Bay?” I look forward to the answer and will, of course, ask later how much more they have spent on their next defence.

  11. Tony Jansen, 4. December 2018, 11:00

    Yet another debacle from the leadership team of WCC – Lester and Lavery. Two more examples of our dreadful senior management elite (GWRC Chair and CEO included) who play fast and loose with the rules. If it weren’t for the efforts of many community groups challenging and holding these cowboys to account, just where would we be. Unfortunately the money it is costing the community and the sheer waste of money by the councils defending the indefensible is staggering.
    Well done Enterprise Miramar. Let’s hope we have similar success with the Chinese Garden, the runway extension, the pointless plan to dredge the harbour by CentrePort for big ships that will never come, as well as a stop to the pointless Convention Centre. That will just leave the idiotic plans for the indoor stadium…..
    It will stop if we vote all these idiots out at the next elections. So tell all your friends to get energised and mobilised to bring about some democratic change.

  12. Mark Shanks, 5. December 2018, 11:36

    I was so cheered to read the court of appeal decision castigating the council for the extremely poor and illicit decision making regarding development of Shelley Bay. A similar good outcome is possible at the other end of the peninsular with regard to the proposed airport extension. WIAL’s application has every chance of being struck out next week. The egg is falling all over the faces of our mayor, ceo and planning people. Clearly the law and the residents do not agree with the way this council is operating.

  13. Johnny Overton, 7. December 2018, 14:45

    Finally sanity prevails. Best news I’ve heard all year. Time to call time on the p.c. neo-liberal agenda. Next election I may just lower my sights & have a crack at becoming a Councillor.

  14. Greg Roberts, 10. December 2018, 9:30

    Tony is this city allowed to move forward at all? How on earth is an economically stimulating convention centre and indoor stadium that this city has been needing for decades a bad idea. What about the people in this city who actually want to go and do things and spend money in their own economy instead of having to go to Vector in Auckland.

  15. Peter Kerr, 10. December 2018, 10:33

    Greg, it’s because we’re fed up with growth projects that plunge the next generations further into debt. We, that is the people who stump up with the cash, are never consulted about whether we want them.
    We’re going to need all the investment we can lay our hands on to preserve our water supplies, to offset inundation in low lying areas of the city and region, to preserve arable and horticultural land, to cope with run-off from increasing areas of urbanized land.
    Your need to go to a new concert venue or to mill about with conference delegates comes way down the list of priorities, since these things already exist here.