Council welcomes Shelly Bay court decision

9 April 2018

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.

Artist concept of Shelly Bay proposed development.

“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 also 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 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.

No basis for allegation of apparent bias, apparent bias not available as a ground

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.