Court dismisses challenge to reduced character areas in Wellington

A big win in the historic 2024 District Plan was defended

It seems that we can’t stop winning. Yesterday, the High Court dismissed a judicial review of Wellington City Council’s decision (and the Housing Minister’s approval) to right-size character areas in the inner suburbs. This confirms the legality of one of the biggest wins in the new District Plan. Time to get on with building the homes we need in Wellington!

A bit of background

After four years of campaigning, in March 2024 the Wellington City Council introduced a raft of pro-housing amendments that even went beyond City for People asks.

One of the most significant wins was paring back character areas. Up until recently, these carved off a whopping 88% of residential land in the inner suburbs from any redevelopment, no matter if they were old, overcrowded and mouldy. We’ve always said a small amount of character areas are sensible, but not blanket protections stretching from Thorndon to Berhampore. Keep the best bits, let the rest change.

The Wellington IHP made some truly bizarre recommendations, including shonky economics that more supply doesn’t make housing cheaper, and some truly odd findings about Wellingtonians not being able to walk back home up a hill. The District Plan originally pared back character areas from 306 hectares to 85. The IHP wanted to increase that to 206 hectares. The Council rejected their recommendation and Chris Bishop, the Housing Minister, agreed.

A group called “Live Wellington” (not to be confused with the Wellington Live facebook page) judicially reviewed the Council and Minister saying that their decision-making process was illegal and wanting to uphold the IHP’s recommendation.

What did the judgment say?

Justice Churchman dismissed their challenge on all grounds (read the judgment here). In summary, on each ground of review:

• Of course the NPS-UD applied to assessing the spatial extent of character areas. It was actually a mandatory consideration - the Council and Minister were “explicitly required to justify why character precincts made the level of development provided by the MDRS and NPS-UD inappropriate.”¹

• The argument that the IHP’s recommendations aligned more with the NPS-UD than the Council’s decision was an attempt to attack the merits of the decision. Judicial review is about process and the Minister did not make any errors of law in his decision.²

• The Council and Minister did not need to go into a ‘granular’ analysis of all the character areas; a single decision on all character areas was fine. These are democratically elected decision makers, they can’t be expected to list every street in Mt Vic they want to change based on 100s of pages of reports and maps.³

• The Council and Minister gave adequate reasons for their decisions. They were permitted to trade off up housing development vs character restrictions and they did so.⁴ The Council even cited our submissions,⁵ made through our coalition partner Generation Zero, which supported the Court’s finding that the decision was lawfully made!

• The Council did not apply a ‘fixed policy’ of picking smaller character areas since August 2020. There was no evidence of this and in any event two elections since then meant different councillors were around the table.⁶

Standing back, this was really a nothing case. The legal process worked as intended, the public got their say, and democratically elected politicians weighed up the evidence in front of them based on their values. This was an ultimately futile delay tactic and a huge waste of everyone’s money by the Live Wellington group.

Some thank you’s

Again, thank you to our supporters, volunteers and those who made donations. Our submission to the IHP made a huge difference on the Council’s and Minister’s decisions, and now this court case. Every event, rally, march we put on helped. We even remember our quest to find the yuckiest flat back in 2021 (which was a ‘character’ flat) with our Wellington’s Next Top Mouldel competition!

Thanks to all the councillors since 2020 who voted to support this plan, and Minister Bishop who supported their decision. A special shout to Rebecca Matthews, who championed this cause since the start and moved the amendment in March 2024.

What’s next for housing in the city?

The Court’s decision now means medium density projects can now proceed with certainty in the inner suburbs. For example, there are two proposed developments - one in Mt Vic, one in Newtown, both which replace dilapidated old villas - that could only be built because of the Council’s decision to pick the smaller character areas.

There’s also more zoning changes coming from this Government in the next Council term. The decision on whether to ‘opt out’ of the MDRS (townhouse law), how to adopt more housing near transport links, and enabling mixed-use neighbourhoods. And of course there is going to be the (good) problem of building the necessary schools, pipes, transport and social infrastructure as more homes are built. There’s also going to issues about funding the huge backlog of social housing upgrades.

Local body elections are coming up in September. For the mayoralty, it looks like a two-horse race between incumbent Tory Whanau and Andrew Little. We know Whanau was elected on delivering a big win in the District Plan (and she did!). We know less about Little’s stance - his website says “Prioritising more housing development” is a priority. We will be following closely.

Ultimately the Mayor is one vote at the council table. We are also considering doing some scorecards to help you all assess all candidates come voting time. Watch this space.

From the bottom of our hearts, ngā mihi nui.

— Marko and the City for People team.

1. At [26].

2. At [39].

3. At [59].

4. At [90] and [97].

5. At [79].

6. At [113].