Enterprise Miramar took to the High Court a Judicial Review case challenging the process followed by the Council in granting resource consents to extensively develop Shelly Bay.
Our main grounds of challenge were, first, that the resource consents granted by the Council to the developer were not consistent with the requirements of the special housing legislation under which the consents had been granted and, second, that the Council should not have decided the resource consent application because it had conflicts of interest. We argued that those conflicts of interests included the fact that the Council owned part of the land that is to be developed at Shelly Bay, and the Council therefore stood to benefit financially from the development being granted resource consents – because the developer will need to buy or lease the Council’s land for the development to go ahead.
On 5 and 6 March 2018 we challenged the Council’s decision in the High Court. The High Court Judge, Justice Churchman, issued his decision in the case on 9 April 2018. He found that there were some legal flaws in the Council’s decision, but that those flaws were not such as to justify the High Court setting aside the resource consents that had been granted to enable the developer to extensively develop Shelly Bay.
Enterprise Miramar has filed an appeal against Justice Churchman’s decision in the Court of Appeal. Our case is due to be heard in the Court of Appeal on 22 August 2018.
We believe that the issues we are raising in our appeal are very important ones for the future of Shelly Bay. The resource consents, if they stand, will result in changes to Shelly Bay and surrounding areas that will have inter-generational impacts, not only on the environment but on businesses and community members who will be affected by the significantly greater volume of traffic that will be generated by the development of Shelly Bay. The appeal also raises wider issues around how conflicts of interests are to be managed where, as here, the Council has an interest in the outcome of a decision that the Council is making.
The development proposed for Shelly Bay includes plans for a new neighbourhood, with 350 homes; a waterfront walkway; green space; parking and seating; cafes, bars and shops; a microbrewery and a 50-bed boutique hotel (1)
Residential development will comprise 280 apartments, 58 townhouses and 14 standalone homes. The front row of houses would be three- level townhouses and detached homes with front doors and gardens facing the road. Behind these, at the base of the steep hill, would be apartment buildings up to six storeys (2)
For more detail refer to the Developers ‘Shelly Bay Masterplan and Design Guide’ and can be found in full here
The Masterplan shows that the development includes 5 ‘types’ of buildings, and the resource consent application (pages 12- 15) describes the following proposed new and adaptive re-use of existing buildings:
The Shelly Bay development is large in size and footprint and it will, as a result, change this part of the Peninsula in a range of different ways, including in terms of its existing character. For instance, the consented development includes apartment buildings up to 27 metres high. Some of those buildings appear to be proposed to be built on land that is zoned as open space.
Enterprise Miramar seeking to overturn the Resource Consent granted by Wellington City. Enterprise Miramar is seeking financial support as Court review proceedings are expensive.
So far, the costs have been met by local businesses and concerned individuals. The cost of the appeal is another ask from our community, but we are confident that we will get the support we need.
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HOW DID IT THE PROPOSAL GET APPROVED?
In response to a request, the Council recommended to the Government that Shelly Bay become a Special Housing Area (SHA). The current Shelly Bay SHA is contained in an Order in Council dated 7 December 2015 (4). A resource consent was lodged in September 2016, and the Council considered the resource consent under the Housing Accords and Special Housing Areas Act 2013 (HASHAA). The HASHAA aims to fast track housing projects in areas including Wellington where the housing market is under pressure. (3)
The HASHAA limits councils’ ability to notify the public about proposed developments in Special Housing Areas. Only owners of adjacent land and infrastructure providers can be notified. So, the resource consent was not publicly notified and was granted by council under delegated authority. (3)
WHAT DECISIONS DID COUNCILLORS MAKE ?
The proposal includes 0.9ha of land owned by the Council. The Council consulted on whether to lease and sell that land to the Developer (4) so the planned development can go ahead as envisaged (3). The Council also made a decision on the infrastructure and public space cost as it relates to infrastructure investment at Shelly Bay. Council’s contribution would be 50% of estimated costs of $20 million (4) and was capped at $10 million (6). Council approved other expenditure above the $20 million, with the intention that it will be recovered from other developments on the Peninsula (6). There were 1103 public submissions received on the proposed sale and lease of Council land at Shelly Bay (4).
HOW DID THE COUNCIL VOTE
The vote was close: with 7 Councillors in favour (Deputy Mayor Eagle, Councillors Day, Gilberd, Dawson, Marsh, Calvert, Free), 5 against (Councillors Sparrow, Lee, Pannett, Foster, Woolf), and 2 abstentions (Mayor Lester, Cr Young) as a result of a conflict of interest. Cr Calvi-Freeman was absent. (5)
The Council said in a media release after the vote:
The vote removes one of the last hurdles to the project which will see a new 350-home development on the former Defence site which will also include a boutique hotel with about 50 rooms, 280 apartments, 58 townhouses and 14 standalone houses.(5)