More than a year after The Spinoff launched the War for Wellington, our editorial campaign on the new Wellington District Plan, the debate over the future of Wellington’s housing is still raging in the courtroom.

The Wellington High Court on Monday heard a judicial review by character housing group Live Wellington (not to be confused with Wellington – Live or Wellington Alive) against Wellington City Council. At issue was the council’s decision to reduce the size of the city’s character precincts – areas where rules make it difficult to demolish pre-1930s homes or build higher-density housing.

The public gallery was packed (by judicial review standards). A crowd of about 20 people stayed for the full day of arguments – mostly members of Live Wellington (which is stylised as LIVE WELLington) and a couple of very online urbanists.

Character precincts were first developed in 2000 after residents in Thorndon and Mt Victoria protested against new housing developments in their neighbourhood. Under the old District Plan, character precincts covered 306 hectares or 88% of inner city residential land parcels.

Under the new District Plan, the council reduced the size to 86 hectares, covering only the most well-preserved streets. This went against the recommendation of the independent hearings panel, which wanted a larger 205-hectare area. In instances where the council and the panel disagree, minister for RMA reform Chris Bishop acts as the tiebreaker. In this case, he sided with the council, saying, “The council’s recommendations give better effect to the National Policy Statement on Urban Development in that they provide additional capacity for housing and business land.”

Live Wellington is challenging the decisions of the council and the minister and seeking to have the ruling quashed. It’s important to note that a judicial review does not challenge whether the council and the minister made the right decision, merely whether they followed the correct legal process.

After seven hours of arguments, the case appears to hinge on these main points:

Qualifying matters: Are character precincts exempt from the NPS-UD?

Duncan Ballinger, the lawyer for Live Wellington, claimed Bishop was wrong when he said the council’s recommendation of smaller character areas gave better effect to the NPS-UD, because the law allowed for exceptions to upzoning if there were “qualifying matters” – such as areas of special character. “My interpretation is that… where a qualifying matter is relevant, there will be an exception to accommodate it,” Ballinger said.

Nick Whittington, the lawyer for Wellington City Council, emphasised one particular word in the legislation – “may”. He said the NPS-UD states that councils may exempt an area from upzoning if there is a qualifying matter – but that Live Wellington was incorrectly implying that councils must apply those exemptions. “‘May’ makes it clear there is a discretion. If the council didn’t want to have character areas, they can do that anyway for political or policy reasons,” he said.

it was clear that the NPS-UD intended to direct councils to realise as much development capacity as possible, “because left to their own devices, decision-makers, over a number of years, have not gone far enough in allowing housing and enabling urban development”.

Amy Hill, the lawyer representing Bishop, said qualifying matters required a test of balance. In this case, the importance of protecting a neighbourhood’s special character needed to be weighed against the national significance of urban development. She argued this was inherently a value judgment that Bishop was entitled to make based on his principles.

Justice Churchman appeared to pick up on this point. Towards the end of the day’s proceedings, he asked Ballinger, “Do you accept that it’s a value judgment?” After a long pause, Ballinger replied, “Yes, but it must be exercised in a structured way that takes into account statutory purpose and framework.” Churchman replied that two reasonable people might look at the same information and come to different decisions, so it was probably not appropriate for the court to interfere.

Granularity: Did the council and the minister provide enough evidence for their decisions?

Any time the council went against the panel’s recommendations, it was required to justify its decision by pointing to a public submission which requested that change. For character precincts, the council used a submission by Generation Zero, which asked that character precincts be limited only to streets with high concentrations of older homes,  so that more housing would be enabled in the inner suburbs.

Ballinger argued that the Generation Zero submission could only form part of the council’s reasoning, but it was required to provide a more detailed analysis of its decisions. He argued that Bishop also breached this requirement.

Whittington presented council reports about how “character” was defined and how many character houses were needed to justify having an entire character precinct. Hill presented several pages of Bishop’s hand-written notes and draft letters which demonstrated his thinking.

Hill said the minister’s statements were brief but his reasoning was clear – he preferred the council’s recommendation of smaller character areas because it allowed for more housing development, so that’s the one he chose.

Predetermination: Did the council have an open mind?

Throughout the District Plan process, councillors and council staff were legally required to have an open mind to all submissions, which is why councillors were forbidden from making public statements or talking to the media about their opinions.

Live Wellington argued that Wellington City Council had a “fixed policy” towards reducing character precincts – essentially that the council had already decided what it was going to do and didn’t properly consider alternatives. Ballinger supported this argument by pointing out that 86-hectare character precincts remained unchanged throughout all three steps of the process: the Spatial Plan, the draft District Plan, and the final District Plan.

Justice Churchman said the council wasn’t obliged to change the size or position of the character precincts to prove they weren’t predetermined. Ballinger agreed but said the council was “unduly influenced” by its earlier decisions.

Whittington, for the council, pointed out that the Spatial Plan and District Plan had been voted on during two different council terms by different sets of councillors. He presented meeting minutes which showed that the vote to reduce character precincts was a notice of motion by councillor Rebecca Matthews, which passed 11-6. “It was open for any councillor to make their own notice of motion and put it to their colleagues. This was the motion that the majority was prepared to accept,” he said.

What will happen now?

After hearing all the arguments, Churchman reserved his decision. He said he had a busy schedule and would release his decision “as soon as I can, but it won’t be in the next few weeks”.

It’s hard to predict what might happen. Churchman is something of a grouchy judge who appeared to have little patience for either side. After the proceedings ended, Whittington said he was pleased Churchman seemed to pick up on his point about value judgments. But the members of Live Wellington also left feeling optimistic.

If the group is successful, Live Wellington wants the judge to quash the entire character precincts section of the District Plan and revert to the old version. Hall said this would be highly disruptive, especially to people who had already started building under the new rules. If Live Wellington wins on a minor point of legal process, the remedy may be as simple as the council or Bishop writing a more thorough letter about why they made their decisions.