Application decision - 31 October 2019
Please find the Independent Commissioners’ decision regarding Shelly Bay which we released on 31 October 2019:
Decision of independent hearing panel appointed by Wellington City Council (632KB PDF)
Note: The decision was re-issued on 31 October 2019 with a minor correction under section 56 HASHAA and section 133A RMA. Paragraph 179 has been deleted from the original version of the decision.
The resource consent has been granted.
Specifically the Commissioners unanimously issued three decisions:
- Decision One – Subdivision Consent – Granted subject to conditions.
- Decision Two – Land Use Consent – Granted subject to conditions.
- Decision Three – Cancellation of Amalgamation Condition – Agreed.
In doing so the Commissioners consider that the proposal is consistent with Part 2 of the Resource Management Act largely adopting the assessments provided by the applicant and the Officer’s recommendation report. They considered that the proposal has been designed (with appropriate conditions) to sufficiently mitigate adverse effects.
Regarding consent conditions, other than some refinement to improve clarity in terms of what is required of the consent holder, these are consistent with the conditions as first imposed when the initial Officer decision was made.
Please also note that we will be coming back to Council with a general update on the decision, including a final decision on the sale and lease of Council land and upgrade of roading infrastructure, in due course.
— Kevin Lavery, Chief Executive Officer
Chief Executive response to the Notice of Motion from Cr Foster – 28 August 2019
I was in correspondence with Councillor Foster during July and early August on the subject of a notice of motion in relation to decisions on Shelly Bay.
In that correspondence I confirmed in writing that I would be referring the matter back to Council and that Councillor Foster’s request for a notice in motion was not needed.
There has been considerable speculation and controversy in the press over the last six months about whether Councillors were advised about the changed ownership of Shelly Bay between Port Nicholson Trust and the Wellington Company. In fact, the Council received a report in public excluded on the 26 April 2017. Even though Councillors have had the information before I believe it is in the public interest to release the report and table it for this meeting. There are some minor redactions to protect individuals and commercial interests.
I hope that this sets the record straight.
— Kevin Lavery, Chief Executive Officer
Proposed long-term lease and sale of Council land at Shelly Bay – 26 April 2017 (9MB PDF)
Council minutes (redacted) – 26 April 2017 (310KB PDF)
Chief Executive response to the Notice of Motion from Cr Foster – 11 July 2019
Chief Executive response to the Notice of Motion from Cr Foster
I have received a Notice of Motion from Councillor Andy Foster, which seeks to amend the Shelly Bay decision of Council on 27 September 2017, and require the matter to be referred back to the Council for further decision.
Because of the high level of public interest in this, I believe it is appropriate that the transaction be reconsidered by the Council once the outcome of the resource consent process is known.
I have written to Councillors to explain I do not intend to carry out any action in accordance with the delegation given to me on 27 September 2017.
I will instead bring a paper to the Council’s City Strategy Committee (or equivalent) for referral to the Council, which makes recommendations in respect of the following:
- The outcome of the resource consent process in respect of the development, including any conditions of any consents granted;
- The key terms of the transaction that Council proposes entering into in respect of the development, including the counter party;
- The timeframe for progressing any transaction in respect of Shelly Bay;
- The timeframe, scope and funding of further work in respect of Shelly Bay Road;
- Any of the resolutions made on 27 September 2017, which may need to be amended or rescinded as a result of any of the above.
This will ensure that the Council has an opportunity to consider the transaction with all relevant factors before them, as was the case on 27 September 2017.
Given this is consistent with what Councillor Foster is seeking to achieve with his Notice of Motion I do not believe it is necessary to progress with the Notice of Motion at the August Council meeting. Instead, the matters will be canvassed once the outcome of the Resource Consent process is known, and the Council has the matter before them again. Accordingly, I have invited Councillor Foster to withdraw the notice and allow the matter to be dealt with as above.
Should the Notice of Motion proceed to Council in August, a report from me will be required under Standing Orders. This report will:
- Provide the same commitment from me to refer the matter back to Committee before any decisions are made as set out above; and
- Contain officer advice about the Notice of Motion, including that paragraph xviii(g) contained in the Notice of Motion cannot be agreed to by Council as Council’s advice in relation to the traffic effects has already been provided to the Commissioners as part of the report required by section 42A of the Resource Management Act 1991.
— Kevin Lavery, Chief Executive Officer
On 27 September 2017, the Council agreed to enter into an agreement to sell and lease land with Shelly Bay Ltd so a planned development of housing and public space could proceed. No transaction has been finalised between Wellington City Council and Shelly Bay Limited.
Council meeting agenda and attachments 27 September 2017 (810KB PDF)
Council meeting minutes 27 September 2017 (309KB PDF)
City Strategy Committee Agenda 27 September 2017 (40.4MB PDF)
City Strategy Committee Minutes 27 September 2017 (317KB PDF)
The proposal for the development at Shelly Bay rests with Port Nicholson Block Settlement Trust (PNBST). No transaction has been finalised between Wellington City Council and PNBST, it is now subject to terms being agreed including resource consent.
Regarding the resource consent application by Shelly Bay Ltd
On 18 April 2017, resource consent for the Shelly Bay development was approved under the Housing and Housing Accord and Special Housing Areas Act 2013 (HASHAA).
In December 2018, the Court of Appeal quashed the resource consent approval finding that the Council had erred in its application of the law in relation to one section of the HASHAA and instructed Council to reconsider the application. Three Commissioners with expertise respectively in law, engineering and planning have been appointed by the Chair of the Regulatory Processes Committee to reconsider the resource consent application, which is now underway. This is in accordance with the Council’s standard process and delegations.
Shelly Bay resource consent application
Infrastructure costs and ratepayer liability
The Council’s contribution to the estimated $20 million joint infrastructure fund is capped at $10 million. This was publicly debated and agreed upon by Councillors at its meeting on 27 September 2017. If the costs escalate the risk lies with the Developer not the Council.
Details of the consultation results in relation to Shelly Bay are available online and the Council’s budget is also available for anyone to view.
Shelly Bay Consultation
Long term plan
The proposed road width is 6m with a 1.5m shared walking/cycleway. We have noted the reference to a road width of 14 metres being frequently repeated. This is only relevant to new roads being built on green field sites, which is not the case here. Traffic effects are something the Commissioners will need to consider and so we are unable to provide a substantive comment while this process is underway.
The decision on what to do with its land rested with Port Nicholson Block Settlement Trust (PNBST). Wellington City Council received an application for sub division from The Wellington Company on 5 October 2017, which was processed under the Resource Management Act by our consenting team.
Regarding allegations of possible bias
The Chief Executive of Wellington City Council takes any allegations of bias against officers very seriously and he has full confidence in the integrity of Council officers in this process. Both the High Court and Court of Appeal have fully considered these issues, and they have dismissed all allegations of Council bias and pre-determination.
The Court of Appeal found:
“we consider that the Council brought an open mind to its decision making function under HASHAA”
Copy of full decision
Special Housing Accord
Wellington has a housing shortage, which is why it’s one of our top priorities to help meet the increasing demand for housing in Wellington, and support our vision of "All Wellingtonian’s well housed".
The Wellington Housing Accord was signed in June 2014, and sets out how the Council and the Government will work together to increase housing supply in the City. The accord has set a target of granting 7000 consents for dwellings and sections by 2019.
Housing Accord policy
More special housing areas for Wellington
Housing Accords and Special Housing Areas (Wellington) Order 2017