A character housing group is suing to stop new housing from going up in Wellington’s character suburbs. Do they have any chance?

Character housing advocacy group LIVE WELLington (Not to be mistaken for Wellington – Live) has filed a judicial review application in the High Court attempting to block the new Wellington District Plan’s decision to shrink character precincts.

The character precincts are areas where it is incredibly difficult to build new housing. Removing or demolishing any house build before 1930 requires a resource consent, and the areas have strict height limits and design requirements. In the previous District Plan, character precincts covered 306 hectares of Wellington’s inner suburbs. The council recommended reducing that to 86 hectares, but the independent hearings panel recommended it be bumped back up to 206 hectares. In the final vote, the council put it back down to 86 hectares, and that decision was approved by RMA reform minister Chris Bishop.

LIVE WELLington spokesperson Jane O’Loughlin declined to provide a copy of her group’s legal filing to The Spinoff and wouldn’t go into detail about the legal arguments the group planned to bring. “The legal case will have more legal detail and basis. I’m not sure I want to say any more to you,” she said. A press release from the group indicated it was focused on predetermination, that councillors held a “fixed and narrow view” and did not properly consider all available evidence.

What is a judicial review?

Judicial review is a legal action to challenge any decision by a government body. It doesn’t apply to parliament, but it does apply to every ministry, government agency, council and even public schools. As Eddie Clark, a senior lecturer at Victoria University of Wellington, puts it, judicial review is “the only way to hold governments to account between elections”. But you can’t just argue that the government or agency has made a poor decision. You need to prove it failed to follow the law.

What’s their argument?

To win on predetermination, LIVE WELLington would have to prove a majority of councillors had always intended to overturn the independent hearing panel’s recommendation to expand the character areas, regardless of any evidence presented. That’s a hard bar to clear; according to Clark, no one has won a case on predetermination against a council since 1974. That was a case called Lower Hutt City Council v Bank, where the council agreed to lease land to a developer before consulting the community.

“The law is that councillors must come in with an open mind, not an empty mind. You must be open to changing their position, but the fact that you don’t isn’t proof of anything. It’s not just based on appearance, you have to have evidence someone was never going to change their mind,” Clark said.

Throughout the District Plan process, the council’s legal advisors were extremely wary of a judicial review on predetermination grounds, and repeatedly warned councillors not to make any public statements about their views on the District Plan.

“How democratic is that? They’re trying to hold elected officials to not say what they think and promised, because they’re worried about the small risk of judicial review,” Clark said. “Even though any council hasn’t lost on predetermination in 50 years, lawyers and officials are utterly paranoid about it.”

How can an elected official not have an opinion?

The fear of judicial review created an absurd situation in the District Plan process where councillors couldn’t speak their mind, even though many of them had campaigned on housing issues. Some had built their entire careers based on supporting more density or protecting character precincts. But for a couple of months, they all had to pretend they had no official position and couldn’t speak to media about anything other than the technical process. (Not all councillors followed this rule; Ray Chung was openly getting into debates about apartments in the Scoop comments section).

Ahead of the final vote, hundreds of residents who felt strongly about housing reached out to their local councillors urging them to vote one way or another. But officially, councillors couldn’t take any of that into consideration, because it would have been considered outside the scope of evidence, which could also open them up to judicial review.

What evidence is there?

LIVE WELLington is leaning on the independent hearing panel’s view that the District Plan provided enough housing capacity in the outer suburbs for a projected 30 years of growth, so there was no reason to reduce the character areas. “The paltry reasons provided by the Council for their rejections of these recommendations indicate the move was based more on political performance than evidence or reasoning,” the group’s press release said. 

Of course, the District Plan isn’t just about housing capacity, it’s also about urban form. Large character areas would push density outward, creating potential issues with transport, emissions, and access to services. These are all inherently political issues about the future shape of our city that elected officials hold strong views on.

The press release also takes aim at RMA reform minister Chris Bishop, who made the final decision on each point where the council and the independent hearing panel disagreed. He sided with the council in every instance, except for the decision to remove heritage listings for 10 buildings, including the Gordon Wilson flats. Bishop made it clear he would have personally liked to remove the listings, but felt the council did not provide enough evidence.

“Chris Bishop likewise provided very few details regarding his reasoning and the matters he took into account when accepting the Council’s recommendations,” the press release said.

Clark thought that argument lacked merit, too. Bishop’s office proactively released the background analysis for his decisions, which were extremely carefully written, as if pre-emptively defending the decisions from this exact argument. Clark described Bishop’s decision document as “the most lawyerly set of I’ve reasons I’ve seen”.

The court documents were filed on Monday but have not been processed by the court yet and the date hasn’t been set for hearings. As of now, the new District Plan is in full effect across Wellington.