Shelly Bay – A Rock or a Hard Place

Originally published 7th September 2017.

Over the last two days councillors have been hearing submissions on the proposed development of Shelly Bay.

Some people seem to think Council is committed to this development and all the consultation is window dressing. I suspect those people have missed the real concerns that have been publicly raised over several months by some councillors, notably myself, Chris Calvi-Freeman and Sarah Free.

There have been many issues raised in submissions which have been very valuable, which we had possibly not thought of, or have added to our knowledge. That is an important part of any consultation process, as are ideas about alternatives, and indeed reasons for supporting the proposal.  Some issues which didn’t feature in debates in council, or have got that extra input, have included concerns about loss of parking on the side of the road, valued to get to the small beaches along the way, risk to penguins (korora), and greater emphasis on sea level rise risks. There have been concerns about the development scale, intensity and design. There has also been support. I’d fully expected there would be significant concerns about traffic, infrastructure and funding, and there certainly have been.

A huge issue is the April 2017 resource consent. Many people have asked why something of this scale and impact was not notified. The reason is that the last Council chose on 8 April 2015 by 10 votes to 5 to make Shelly Bay a Special Housing Area (SHA) under the Housing Accords and Special Housing Areas Act. (HASHAA) The five councillors voting against Shelly Bay being a SHA were David Lee, Sarah Free, Iona Pannett, Helene Ritchie and Andy Foster. The size of the SHA was then extended to include Open Space zoned land on 28 October 2015 by the same 10 votes to 5.

Right from the outset HASHAA seemed to me an abhorrent piece of legislation, backed by implicit threats of Ministerial intervention. It is designed to cut right across the rules of the District Plan by making the provision of housing more important than any other environmental (in its widest sense) consideration. In a situation where there has been extensive engagement already about what should happen on a site or area and the District Plan rules reflect that housing is the objective in the area in question that’s possibly not a big deal. In areas with no particular special values that can also be fine. However when the land has special values which are not about just providing housing that is not fine. Where there has been no engagement beyond the landowner that is also not fine. Both are clearly the case with Shelly Bay, and all the more so given much of the land in question (ie the sloped part of the land) is zoned Open Space B, which is clearly not intended for residential purposes. Pulling some words from the Open Space Chapter of the District Plan:

“Open space is characterised by the fact that it has few buildings. It can be enjoyed and experienced from a distance as a visual distinction between built and unbuilt areas of the city. This enjoyment of open space from a distance also needs to be taken into account when activities in open space areas are being considered.”

And “Open Space B land is valued for its natural character and informal open spaces. It involves areas that are used for types of recreation that, in the broadest sense, do not involve buildings or structures. The intention is to keep such areas in an unbuilt or natural state. This type of open space encompasses both formal and informal open space elements. It includes walkways, scenic areas and open grassed areas where buildings are inappropriate. Its characteristics are minimal structures, largely undeveloped areas and open expanses of land.”

And from the Objectives “Identify and protect from development and visual obstruction landforms and landscape elements that are significant in the context of the Wellington landscape, and in particular significant escarpments and coastal cliffs.”

The flat part of the site is zoned Business 1, which allows for a range of activities, within a set of height and design parameters. That’s where most of the proposed development is intended to go. Shelly Bay has its own special Design Guide in the District Plan.

The maximum permitted height in the Design Guide is 11 metres at the back of the site. Beyond that resource consent would normally be required. The tallest proposed buildings are 27 metres. That is so far above the 11 metres, that it is incomprehensible that such a scale would have been permitted without notification were it not an SHA. Design and scale of development are major issues that have been raised by submitters. It’s also been pointed out that having just one designer, however good, limits diversity and creativity. It has been pointed out that there is also a lack of certainty about what we will ultimately get. Many submitters called the current designs ‘pedestrian/plastic, basically uninspiring’.

Reading the non-notified Resource Consent decision for Shelly Bay it is clear that officers did not put much weight on the District Plan at all. The decision says: ‘The provisions of the Operative District Plan (ODP) are a matter that regard must be had to under S34(1)(d)(i) of the HASHAA. However less weight will be given to those provisions than to the matters specified in S34 as carrying greater weight. Particularly relevant matters of the ODP have been identified and commented on where appropriate but relatively little weight has been given to these provisions due to the weighting specified in HASHAA.’

When it comes to the decisions comments on the scale of development it say the proposed development : ‘will be enabling the purpose of HASHAA by increasing housing yield that would otherwise by limited by the District Plan bulk and location regulations.’

Translation ? The District Plan objectives, policies and rules will be looked at but the main consideration will be the provision of housing. HASHAA Section 34 does say that the greatest weight should be placed on provision of housing, and the Purposes and Principles of the RMA, and the District Plan should receive lesser weight. However the language used in the decision seems to indicate that they received almost no weight. That merits scrutiny.

I’ve had more involvement than all my current colleagues put together in developing the District Plan. The policies and rules in there may not always be perfect and current Government in particular has made constant changes to the Resource Management Act. The intent of most of Government’s changes is deliberately to reduce public participation, which is a huge concern to me. The District Plan and its zonings has been through an extensive engagement process, in many cases through the Environment Court, to become what it is. It is designed to reflect the special character of Wellington’s many diverse features. That’s also why I think more resource consents which breach the District Plan to the extent they do should be exposed to the notification process. However HASHAA at the stroke of a political pen, pretty much sweeps all of this engagement and detailed consideration aside.

HASHAA specifically forbids notification to anyone beyond the landowner, the Council, infrastructure providers and immediate neighbours. Housing provision is really important. New Zealand and Wellington’s populations are growing at a rapid (and ultimately unsustainable) rate, (don’t get me on to the lack of long term planning around population levels and distribution by successive Governments!) so we have to provide more housing. However in providing for population increase we must not destroy the very things we love about Wellington. That danger is very real and exacerbated by the speed of growth. Big and better are not the same things.

As several submitters have noted the fact that the resource consent has not gone through a notified consent has meant only the most cursory examination of key issues of design, scale and traffic impacts. Given the feedback on the current proposal to sell and lease some of Council’s land I am sure there would have been a lot of input into a publicly notified consent !

The road between Shelly Bay and Miramar Cutting has always been critical. Even the limited transport assessment says the current 1000 vehicles per day is expected to go to 4700. There’s precious little consideration of construction traffic over many years. As several of us pointed out very strongly, the initial proposal that an unsealed 1 ½ metre wide ‘shared path’ would somehow cater for cycling and walking was patently absurd. Living Streets’ submission pointed out this width is below the absolute minimum for a footpath alone. The proposal then shifted to cyclists being on the road. The problem is that the traffic volumes will increase dramatically and this is probably the most popular (flat, scenic, currently relatively undeveloped) recreational cycling place in the city. The safety risk is obvious.

That leaves the question of whether a road and shared path design can be created that is safe. The ideal transport option is widening the road or more likely a wider shared path. Problem is can such a path fit ? Would it be acceptable ? Would it be able to get resource consent ? I think that is challenging to say the least. I want to see a high level design to show what can – and cannot be done.  I suspect it simply cannot fit and be consented. Other options are one way travel only – not a likely prospect, further reduced speed limits, or much more traffic calming of some sort. We heard some creative thinking about this too. I think the road is the potential Achilles heel of the proposal. This would undoubtedly have been thoroughly scrutinized during a notified consent hearing – if there had been one. We can’t leave this unresolved as part of any decision.

Then there is the question of infrastructure and who pays for it. In the normal course of events developers pay for all of the infrastructure on their site, and they pay an appropriate contribution towards infrastructure (roads, pipes) beyond their site. That contribution should reflect the degree to which infrastructure needs upgrading because of their development. Any other approach is asking existing ratepayers to subsidise the development. As a matter of principle Council should only be paying for things that are of public good, not private benefit to the developer.

So if Shelly Bay Road was not going to be upgraded at all without development at Shelly Bay, and it required upgrade only as a result of a new development, then the development should pay the lot. If a road upgrade was proposed then the cost might be shared, or if the road was to be upgraded anyway and the development didn’t make any difference then Council would pay. It’s pretty obvious that there are no Council plans to upgrade Shelly Bay Road, so any work that needed to be done would be as a result of development. Exactly the same is true of water/stormwater/sewer infrastructure. The argument that the existing pipes are run down is irrelevant. In greenfields situations there are no existing pipes – so having something there, even if old, at least gives the developers a head start – for free.

To make all this worse, under the current proposal where Council would pay a significant portion of the infrastructure costs, Council’s liabilities are uncapped, while the developer’s liabilities are capped.

Clearly I am really not happy with the financial arrangements around infrastructure cost allocation. We have been told the developer cannot pay any more towards this. I struggle to think the $500 million development is that marginal, and would need to see their numbers to be convinced. Developer margins are usually in the 15-20% range. Submitters have also questioned the valuation of land owned by the Council, saying it is worth more than stated in the consultation document. That may or may not be so.

The final issue I wanted to comment on which as raised by several submitters, is sea level rise. There is a Ministry for the Environment report now in the media discussing approximately 70,000 properties across New Zealand under threat from rising sea levels and greater frequency of storms. We need to be confident that Shelly Bay will be safe and if there is doubt take appropriate legal steps to be clear that ownership there comes with that risk. In my view in those circumstances it should be very clear that future ratepayers will not be taking any responsibility if Sausilito becomes Venice – or Atlanta.

Some councillors might think that inclusion of some affordable housing somewhere else in the city is an attractive tradeoff. Some councillors will be persuaded that a deal is important to allow Port Nicholson Settlement Block Trust to extract its money and be able to move onto something else, to help their beneficiaries. Both issues are very important. It’s worth noting, given some of the things that have been said during submissions, that the SHA and consent decisions have resulted in a very large increase in the value of the land owned by Port Nicholson Settlement Block Trust.

Now to the hard part. I think many councillors thought when approving the SHA that the private land could not be developed without Council’s land being involved – so Council would be able to govern/veto the nature of any development as a landowner. The 10 votes to 5 decision that made Shelly Bay a SHA, and the subsequent resource consent, means Port Nicholson Settlement Block Trust and The Wellington Company may well be able to develop their land without Council’s land, though they may have to make some modifications. That’s the view that has emerged over the last few months and is clearly PNSBT and TWC’s view. This has to be clarified. So for Council it may well be a decision between a development in which we participate, and one in which we do not, rather than whether the proposal proceeds or not.

Finally four specific points.

  1. I always want to see the numbers in anything. In this case, what are the costs and benefits – financial and non-financial – of being part of the development versus not being part of it ? This analysis must be public.
  2. I want detailed information about how we can make Shelly Bay road safer. It is clear the road will need some changes if the development goes ahead. Any changes must retain it as an attractive recreational walking and cycling route, and not undermine its character. In my view that should be done with community representative groups and the developer. Works should be costed and included in Council’s upcoming Asset Management Plans and subsequent Long Term (10 year) Plan. Then we could charge Development Contributions on this work against the development in Shelly Bay which has necessitated the work. That is exactly what Development Contributions are for.
  3. We also need to have open eyes about future risk. Given the threat of sea level rise I would also strongly suggest that notations be put on all titles to make clear that if there is a future risk of inundation, future Councils /ratepayers will not be liable for protection or compensation.
  4. We all know the need for affordable housing. Several submitters asked for some affordable housing in Shelly Bay. I think PNSBT and TWC should consider making some affordable houses available within Shelly Bay for that purpose if development proceeds as proposed. That is up to them. PNSBT will be around for a long time, and I would have thought it perfectly sensible to provide some form of accommodation to their beneficiaries on a site which clearly holds a lot of value to the iwi.