9 April 2018
Council welcomes Shelly Bay court decision
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 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.
ends