Opponents of a $ 500 million development in Wellington continue to fight for the area in court.
Earlier this year, the High Court rejected a request for a judicial review of the proposed development by The Wellington Company and Port Nicholson Block Settlement Trust at Shelly Bay.
The group that appealed against that decision, Enterprise Miramar, was not against the development of Shelly Bay, they only wanted to protect their environmental and historical characteristics, said their lawyer David Laurenson.
They argued in the High Court that the decision on the consent of the source was legally wrong and distorted.
At the end of the nineties, the design plan of Shelly Bay was drawn up and approved by the Environment Court, which protected these functions.
However, the plan for development approved by the Wellington City Council did not reflect those rules, said Mr Laurenson.
The height of some of the planned buildings was too high – at 27 meters – when the Shelly Bay Design plan only allowed buildings of seven meters high.
The council had misunderstood the amount of infrastructure needed for development before the development was given the green light.
The development was quickly followed, because it was a special residential area (SHA), created by the city council to accelerate the development, to build more houses.
SHAs have been developed in the context of the Housing Accords and Special Housing Areas Act (HASHAA), which is designed to build more houses in areas that have been identified as problems with housing and affordability.
Mr. Laurenson said that the council misunderstood that legislation when he gave permission to Shelly Bay.
He said that decision-makers had applied HASHAA as if it were to maximize the house yield instead of improving it.
This meant that they never considered whether the development was in balance with the effects it could have on Shelly Bay, or whether some parts of the project would have to be reduced, such as reducing the number of houses or the height of buildings.
Enterprise Miramar accepted that, in addition to speeding up the consent process, HASHAA would also result in a number of requests for permission from the source that would not be customary under the Resource Management Act.
That did not mean that the district plan that had been drawn up to protect parts of Shelly Bay had to be taken by surprise.
The lawyer of Wellignton City Council, Nick Whittington, argued that the SHA was set up under legislation designed to enable housing developments that could not continue under the Resource Management Act.
The development would see the crumbling of historic buildings upgraded, and Wellingtonians get better access to that part of the city's coast, said Mr. Whittington.
The country in Shelly Bay was assessed by the Minister of Housing and Urban Development at the time, on recommendation of the Council, as suitable for housing.