High Court guidance on HASHAA
High Court guidance on HASHAA
Thursday 3 May, 2018
A very recent High Court decision on the Housing Accords and Special Housing Areas Act 2013 (HASHAA) provides valuable guidance to councils with established special housing areas (SHAs) or in the midst of discussions with the Minister to establish SHAs.
The High Court decision, issued on Monday 9 April, in Enterprise Miramar Peninsula Incorporated v Wellington City Council [2018] NZHC 614 (called the Shelly Bay decision in reference to the SHA which was the subject of the judicial review) provides timely insight into the distinctions between the new HASHAA and the more familiar Resource Management Act 1991 (RMA).
As soon as a SHA is established a resource consent application proposing development predominantly for the residential purposes envisaged by the SHA can be lodged under HASHAA, rather than the RMA, and benefit from HASHAA’s condensed resource consent process. The condensed resource consent process is achieved through the imposition of short processing timeframes, restricted submitter participation and limited rights of appeal.
Council can only notify an application under section 29(3) of HASHAA to:
- Owners of land adjacent to the application site;
- The relevant regional council;
- Infrastructure providers with assets on or adjacent to the application site;
- Requiring authorities with designations on or adjacent to the application site;
who have not otherwise given their written approval to the application. The usual RMA notification thresholds of ‘more than minor adverse effects on the environment’, ‘minor or more than minor adverse effects on a person’ and ‘special circumstances’ do not apply to a HASHAA application. Council is simply directed that it ‘may’ notify the persons listed above if they have not given written approval. The extent of this discretion is new and unfamiliar territory for councils more used to the carefully prescribed and long debated RMA notification process.
The stark difference between the HASHAA and RMA notification processes, and the flow on consequences for hearings, was noted by the High Court in Shelly Bay:
[11] Part II of HASHAA provides that an application in relation to an SHA is dealt with very differently to an application under the RMA. One of the most striking differences relates to the circumstances in which such an application is to be notified and whether or not a hearing is to be held.
[12] The Act provides:
An authorised agency must not notify, or hold a hearing in relation to, an application for a resource consent… except as provided…
[14] Section 22 of HASHAA specifically provides that the RMA… does not apply to an application, request, decision or any other matter under Part II of the Act unless HASHAA expressly applies the provisions of the RMA.
Council can only hold a hearing on a HASHAA application if the application was notified to one or more of the small group of persons listed above and then only if a submitter has asked to be heard. If a hearing is held, it must commence no later than 20 working days and be completed within 30 working days after the closing date for submissions.
A right of appeal to the Environment Court against council’s decision on a HASHAA application, only exists for a proposed development of four or more storeys.
A resource consent application lodged under HASHAA to develop land within the Shelly Bay SHA for 350 houses was neither notified nor heard. This is not surprising given one of the catalysts for HASHAA was the observation that traditional RMA consenting processes had contributed to the perceived housing shortage. However, Wellington City Council’s decision to proceed to consider and decide the application on that basis was challenged by a local Miramar community group through judicial review. The High Court’s decision in Shelly Bay provides useful insight into the important and deliberate differences between the new HASHAA consent regime and the more familiar regime of the RMA:
[42] In the present case, WCC was obliged to exercise the statutory powers given to it by HASHAA in accordance with the terms of that statute. It was also obliged to act within jurisdiction.
…
[186] While HASHAA “does not roll out a blank canvas for development” it is clear that an application does not have to comply with the provisions of the RMA or of any Operative District Plan or other relevant planning instrument. HASHAA operates as a code in relation to applications made under it and the RMA only applies to the extent that HASHAA expressly provides.
…
[189] It is inherent in the structure of HASHAA that applications under that Act need not comply with either the provisions of the RMA or the operative planning instruments. While not every application for a consent for a development in an SHA will be granted, inconsistency with aspects of an operative planning instrument in relation to matters such as height limits or inconsistencies with a local design guide do not result in the development being of a type not envisaged by HASHAA.
…
[245] Part 2 of HASHAA provides an alternative consenting process that is effectively a substitute for the RMA procedures and the statute [that is, HASHAA] anticipates that qualifying developments under HASHAA may be successful even though they might not be under the RMA.
Some interesting commentary on resource consent application processes under HASHAA in the High Court decision include the following:
- A reminder to councils that if the law, under either HASHAA or the RMA, requires a notification decision and then a grant / decline decision, the two decisions should not be combined or fused into one. See paragraphs [63] and [64] of the Shelly Bay decision;
- A council is expected, under HASHAA, to take an active part in the identification of a SHA and then to work with a later applicant to obtain resource consent to develop land as envisaged by the SHA. That is not a conflict of interest necessitating the hearing of the application by independent hearings commissioners. See paragraphs [146] to [148] of the Shelly Bay decision; and
- The decision-making criteria recorded in section 34 of HASHAA are not equal. Councils must give weight to the decision-making criteria in the order they are listed in that section. This means that councils must give the purpose of HASHAA more weight than matters in Part 2 of the RMA in their decision-making on an application. See paragraphs [164] to [166] of the Shelly Bay decision.
The High Court noted that the test for bias in a local government context is different to the test which applies to judges. A judge would be disqualified for the mere appearance of bias, whereas council decision-making would not be invalid so long as the decision-maker’s mind was not closed to argument. WCC’s decisions were not found to be invalidated by bias.
We are currently working with a number of local government clients on their respective SHA, resource consent and delegation processes under HASHAA.
Please feel free to contact Theresa Le Bas or Megan Crocket if you have any questions about HASHAA.
