61 Old Taupiri Limited v Waikato District Council
[2025] NZHC 2916
•3 October 2025
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2024-419-277
[2025] NZHC 2916
UNDER Section 3 of the Declaratory Judgments Act 1908 BETWEEN
61 OLD TAUPIRI LIMITED
First Plaintiff
99 NGARUAWAHIA LIMITED
Second PlaintiffNEXT CONSTRUCTION LIMITED
Third PlaintiffAND
WAIKATO DISTRICT COUNCIL
Defendant
Hearing: 23 June 2025 Appearances:
C F Muggeridge and M Branch for Plaintiffs K E Cornegé and M Crocket for Defendant
Judgment:
3 October 2025
JUDGMENT OF McHERRON J
Table of Contents
Summary[1]
Background[3]
The Development Contribution Policies[3]
OTL’s development[4]
99 NL’s development[6]
Wastewater pump stations funded by the plaintiffs[8]
Issues[9]
Development contributions[13]
The 2018 and 2021 DCPs[25]
Issue 1: Do the 2018 and 2021 DCPs comply with ss 201(2) and 202(1)(b) of the Act?[26]
The plaintiffs’ argument[26]
61 OLD TAUPIRI LIMITED v WAIKATO DISTRICT COUNCIL [2025] NZHC 2916 [3 October 2025]
Analysis[27]
Issue 2: Does the operation of the 2018 and 2021 DCPs permit the WDC to require a
wastewater contribution at the building consent stage?[37]
The plaintiffs’ argument[37]
Analysis[44]
What about the pump stations funded by the plaintiffs?[71]
Overall assessment[72]
Pleadings amendments[76]
Conclusion[78]
Result[80]
Summary
[1] 61 Old Taupiri Ltd (OTL), 99 Ngāruawāhia Ltd (99 NL) and Next Construction Ltd (Next), the plaintiffs, are involved in property developments on the outskirts of Hamilton City. In the present proceeding, the plaintiffs challenge certain development contributions that the defendant, Waikato District Council (WDC) has required them to pay as part of the building consent process. In particular, the plaintiffs dispute having to contribute to the costs of wastewater infrastructure in the Ngāruawāhia catchment. They seek declarations as to how the applicable development contribution policies (DCPs) are to be interpreted. The plaintiffs also ask the Court to determine whether the DCPs were lawfully made under the Local Government Act 2002 (Act).
[2] For the following reasons, I decline to grant the declarations sought by the plaintiffs. They have not established the WDC’s 2018 and 2021 DCPs are inconsistent with the Act. Nor have they established that WDC has wrongly applied the DCPs in respect of requiring development contributions from them for Ngāruawāhia wastewater infrastructure. The Council is entitled to require a development contribution for wastewater infrastructure at the building consent stage in respect of both OTL’s and 99 NL’s developments.
Background
The Development Contribution Policies
[3]There are two DCPs at issue:
(a)WDC’s 2018 Development Contributions Policy (2018 DCP), which relevantly applies to an application for resource consent, building consent or service connection submitted on, or after, 1 July 2018; and
(b)WDC’s 2021 Development Contributions Policy (2021 DCP), which relevantly applies to an application for resource consent, building consent, certificate of acceptance or service connection submitted on, or after, 1 July 2021.
OTL’s development
[4] OTL, or entities with which it is associated, is developing 26 sections at 61 Old Taupiri Road in Ngāruawāhia. For the purposes of this proceeding I am to assume it has been granted land use and subdivision consents in respect of a number of lots and has been required to make development contributions for those lots under the 2018 DCP (OTL First Assessment).1 A total of $215,200 development contributions were calculated in respect of reserves, facilities, roading and water. No wastewater development contribution was required in the Ngāruawāhia catchment under the 2018 DCP.
[5] Later, after OTL or associated entities applied in 2022 and 2023 for building consents in respect of the OTL’s developments, WDC required additional development contributions in respect of wastewater infrastructure for the Ngāruawāhia catchment under the 2021 DCP (OTL Second Assessment).
99 NL’s development
[6] 99 NL is developing 30 sections at 99 Ngāruawāhia Road, as part of a wider housing development with over 100 houses. WDC assessed development contributions for six of the 24 lots under the 2018 DCP (99 NL First Assessment). A
1 The land use and subdivision consents record the name of the applicant as “The Newell Road Partnership” and several building consents in the common bundle records another party “Construction Properties Ltd” as the applicant. Further, the defendant objected to various documents because they were outside the boundaries of the plaintiffs’ pleaded case. Overall, because of the way the information was presented, I was left with an incomplete understanding of which party applied for which consents. That is why I have described the facts reasonably generally. Because the challenge is primarily advanced on legal grounds, nothing turns on this lack of clarity.
total of $100,478.00 development contributions were calculated in respect of reserves, facilities, roading, roads and transport, stormwater and water. No wastewater development contribution was required.
[7] Later, after Next lodged six building consents between 30 November 2001 and 1 April 2022, WDC assessed additional development contributions in respect of wastewater infrastructure in the Ngāruawāhia catchment for the six lots under the 2021 DCP (99 NL Second Assessment).
Wastewater pump stations funded by the plaintiffs
[8] OTL has commissioned a wastewater pump station. That wastewater pump station has been vested in WDC. 99 NL is in the process of commissioning a wastewater pump station and that wastewater pump station will be vested in WDC. There are parallel arrangements between WDC, Next and other entities to fund these pump stations.
Issues
[9] The plaintiffs seek declarations that WDC is not entitled to require the Ngāruawāhia wastewater development contributions under the building consents because it has already required the plaintiffs to pay development contributions under the land use and subdivision consents.
[10] In addition, the plaintiffs submit WDC’s 2018 and 2021 DCPs do not comply with s 201(2) and/or s 202(1)(b) of the Act.
[11] I consider the most logical way to approach these is to reverse the order of these submissions and ask:
(a)first, whether the 2018 and 2021 DCPs are compliant with the Act; and
(b)second, whether the construction of the DCPs as contended for by WDC is tenable.
[12] Before considering these issues, I set out the scheme of the Act, as far as is applicable, and the relevant wording of the 2018 and 2021 DCPs.
Development contributions
[13] The governing provisions are primarily found in pt 8, subpt 5 of the Act. The purpose of the development contributions provisions is set out in s 197AA. Development contributions are a funding tool created by the Act to enable territorial authorities to recover from those persons undertaking development a fair, equitable, and proportionate portion of the total cost of capital expenditure necessary to service growth over the long term.2 The contributions may comprise money, land, or both.3
[14] The principles set out in s 197AB of the Act apply to those preparing a DCP, or requiring development contributions. Relevantly, they provide:
197AB Development contributions principles
…
(a) development contributions should only be required if the effects or cumulative effects of developments will create or have created a requirement for the territorial authority to provide or to have provided new or additional assets or assets of increased capacity:
(b) development contributions should be determined in a manner that is generally consistent with the capacity life of the assets for which they are intended to be used and in a way that avoids over-recovery of costs allocated to development contribution funding:
(c) cost allocations used to establish development contributions should be determined according to, and be proportional to, the persons who will benefit from the assets to be provided (including the community as a whole) as well as those who create the need for those assets:
(d) development contributions must be used—
(i)for or towards the purpose of the activity or the group of activities for which the contributions were required; and
(ii)for the benefit of the district or the part of the district that is identified in the development contributions policy in which the development contributions were required:
2 Local Government Act 2002 (Act), s 197AA. The term “territorial authority” is defined in s 5(1) of the Act as the city councils or district councils named in pt 2 of sch 2.
3 Section 197(2), definition of “development contribution”.
(e) territorial authorities should make sufficient information available to demonstrate what development contributions are being used for and why they are being used:
(f) development contributions should be predictable and be consistent with the methodology and schedules of the territorial authority’s development contributions policy under sections 106, 201, and 202:
(g) when calculating and requiring development contributions, territorial authorities may group together certain developments by geographic area or categories of land use, provided that—
(i)the grouping is done in a manner that balances practical and administrative efficiencies with considerations of fairness and equity; and
(ii)grouping by geographic area avoids grouping across an entire district wherever practical.
…
[15] A council can use a development contribution to fund capital works for infrastructure of the type required by those who will occupy the development.4 It can be expected that the payments will not be of immediate benefit to the users of that development.5 A developer who makes a contribution provides for infrastructure for future developments and future users, in the same way that users of a contributing development have the benefit of previous contributions in respect of other past developments.6
[16] The basis on which development contributions may be required is set out in s 199 of the Act. The focus is on demand for new or additional assets resulting from developments:
199 Basis on which development contributions may be required
(1) Development contributions may be required in relation to developments if the effect of the developments is to require new or additional assets or assets of increased capacity and, as a consequence, the territorial authority incurs capital expenditure to provide appropriately for—
(a)reserves:
4 Neil Construction v North Shore City Council [2008] NZRMA 275 at [109]: “By s 197, to qualify as a “development” a subdivision or other development must generate a demand for infrastructure.”
5 Beaumont Trading Company Ltd v Auckland Council [2014] NZHC 2954, [2015] 2 NZLR 656 at [14].
6 At [14]. See also s 199 of the Act.
(b)network infrastructure:
(c)community infrastructure.
(2) This section does not prevent a territorial authority from requiring a development contribution that is to be used to pay, in full or in part, for capital expenditure already incurred by the territorial authority in anticipation of development.
(3) In subsection (1), effect includes the cumulative effects that a development may have in combination with other developments.
[17] “Development” is defined as any subdivision, building (as defined in s 8 of the Building Act 2004), land use, or work that generates a demand for reserves, network infrastructure, or community infrastructure.7 Relevantly, “network infrastructure” is defined as “the provision of roads and other transport, water, wastewater, and stormwater collection and management”.8
[18] A territorial authority has power to require a development contribution in three circumstances:9
(a)when a resource consent is granted under the Resource Management Act 1991 for a development within the territorial authority’s district;
(b)when a building consent is granted under the Building Act for building work situated in the territorial authority’s district (whether by the territorial authority or a building consent authority);
(c)when an authorisation for a service connection is granted.
[19] A territorial authority may only require a development contribution as provided for in a DCP adopted under s 102(1) of the Act that is consistent with s 201.10 The DCP must be in force at the time that the application for a resource consent, building consent, or service connection was submitted, accompanied by all required information.11
7 Section 197(1), definition of “development”.
8 Section 197(2), definition of “network infrastructure”.
9 Section 198(1).
10 Section 198(2).
11 Section 198(2A).
[20] A territorial authority cannot require a development contribution if, and to the extent that, it has already imposed or required a development contribution for the same purpose in respect of the same building work, whether on the granting of a building consent or a certificate of acceptance.12 Nor can a territorial authority require a development contribution where the developer will fund or otherwise provide for the same infrastructure.13 However, an authority may require another contribution to be made to reflect an increase in the scale or intensity of the development since the original contribution.14
[21] The development contribution itself must be calculated in accordance with the methodology in sch 13 of the Act.15 Section 102 requires the adoption of specified funding and financial policies “in order to provide predictability and certainty about sources and levels of funding”. A requirement for a development contribution is not a condition of a resource consent that gives rise to any right of objection or appeal.16
[22]Sections 201 and 202 set out the required contents of a DCP and its schedule:
201 Contents of development contributions policy
(1) If a territorial authority has determined to seek funding for community facilities under this subpart, the policy required by section 102(1) must include, in summary form, in addition to the matters set out in section 106,—
(a)an explanation of, and justification for, the way each development contribution in the schedule required by subsection
(2)is calculated; and
(b)the significant assumptions underlying the calculation of the schedule of development contributions, including an estimate of the potential effects, if there is a significant level of uncertainty as to the scope and nature of the effects; and
(c)the conditions and criteria (if any) that will apply in relation to the remission, postponement, or refund of development contributions, or the return of land; and
(d)the basis on which the value of additional allotments or land is assessed for the purposes of section 203(1).
12 Section 200(1) and (ba).
13 Section 200(1)(b). This has been described as a “safeguard against ‘double dipping’” in Neil Construction, above n 4, at [61].
14 Section 200(4).
15 Section 197, definition of “development contribution”.
16 Section 198(3)(a).
(2) A development contributions policy must contain a schedule in accordance with section 202.
202 Contents of section 201 schedule
(1) The schedule of development contributions required by section 201(2) must specify—
(a)the development contributions payable in each district, calculated, in each case, in accordance with the methodology in respect of—
(i)reserves; and
(ii)network infrastructure; and
(iii)community infrastructure; and
(b)the event that will give rise to a requirement for a development contribution under section 198, whether upon granting—
(i)a resource consent under the Resource Management Act 1991; or
(ii)a building consent under the Building Act 2004; or
(iii)an authorisation for a service connection.
(2) If different development contributions are payable in different parts of the district, subsection (1) applies in relation to the parts of the district.
(3) The specifications required under subsection (1) or subsection (2) must be given separately in relation to each activity or group of activities for which separate development contributions are required.
[23] In addition, under s 201A, a territorial authority that has determined to seek funding for community facilities using development contributions must include a schedule of assets for which development contributions will be used.
[24]I now turn to the DCPs at issue in the present case.
The 2018 and 2021 DCPs
[25] The substantive clauses at issue are materially the same in both the 2018 and 2021 DCPs. The essential difference between the two DCPs for the purpose of the present application is in the appendices. In the 2018 DCP, no provision is made for wastewater infrastructure in the Ngāruawāhia catchment as a matter for which a development contribution can be required. However, in the 2021 DCP, wastewater is
included in respect of Ngāruawāhia, both in terms of the development contributions effective from 1 July 2024 as set out in Appendix 1 ($14,581 for wastewater in Ngāruawāhia) and in terms of the specific wastewater capital works projects identified for Ngāruawāhia in Appendix 3. These include wastewater pump station upgrades, wastewater reticulation renewals and wastewater treatment plan upgrades, with a total estimated cost of over $56m. The schedule of assets in the 2021 DCP does not include any projects related to the plaintiffs’ funded pump stations at Old Taupiri Road or Ngāruawāhia Road. I return to this issue at [71] below.
Issue 1: Do the 2018 and 2021 DCPs comply with ss 201(2) and 202(1)(b) of the Act?
The plaintiffs’ argument
[26] The plaintiffs submit that the DCPs do not comply with s 202(1)(b) of the Act because they do not contain a schedule in accordance with s 201(2).17 Section 202(1)(b) states that the schedule must specify the event that will give rise to a requirement for a development contribution (a resource consent, building consent, or service connection). The plaintiffs emphasise the need for predictability and certainty in respect of this requirement. Yet, the plaintiffs say, the event that will give rise to a requirement for a development contribution is not specified. The plaintiffs submit that this has led to a situation where the defendant has used two events (the two different types of consent) to require development contributions for the same project.
Analysis
[27] I do not accept the plaintiffs’ argument that the DCPs do not adequately specify the event that gives rise to a requirement for a development contribution. Rather, I consider the DCPs clearly specify the information that is required in cls 11.1 and 11.2:18
17 Section 202 is set out above at [22].
18 There are minor differences in wording and punctuation between the 2018 DCP and the 2021 DCP, but these differences are immaterial.
11 Assessment and application of policy
11.1 Timing of assessment
Development contributions do not automatically apply to every development in the district. Only developments that place extra demands on infrastructure - and which cause the council to incur capital costs – will be liable.
Whether or not a development will have to pay development contributions will usually be decided when granting/issuing:
a)a resource consent under the RMA for a development;
b)a building consent under the Building Act 2004; or
c)an authorisation for a service connection; or
d)a certificate of acceptance under the Building Act 2004.
11.2 Assessment process
Assessment of whether development contributions will be required will be made against the first consent application lodged for each development, and when (if any) subsequent consent is sought, a re- assessment will be undertaken. If, for whatever reason, development contributions were not assessed at the first available opportunity, they still may be required at subsequent stages in the development process.
[28] Clause 11.1 provides that not every development will result in a development contribution. Only developments placing extra demands on infrastructure, and which cause WDC to incur capital costs, will be liable. Clause 11.1 also identifies the usual decision points at which WDC will decide whether a contribution has to be paid in respect of a development.
[29] Clause 11.2 makes it clear that the assessment process may be repeated in respect of subsequent consents for the same development. Even if a contribution was not assessed “at the first available opportunity”, it still may be required at subsequent stages in the development process.
[30] Clause 11.3 then gives more detail as to contributions required at different stages of the development process. In respect of building consent applications, cl 11.3.2 provides:
Dwellings constructed on allotments with registered titles may attract development contributions under this policy. The extent of any contributions
payable will depend on whether any payments were made at earlier stages in the development process, as well as the specific services that the development is connected to.
….
[31] Clause 11.9.1 of the 2018 and 2021 DCPs provides for credit for development contributions already paid:19
… There are two types of credit. The first relates to development contributions that have already been paid in the past. For instance, a development may have paid contributions at the subdivision stage, and these must be taken into account if any further or additional development triggers reassessment at subsequent stages.
In general, credits will be given towards activities for which payment was made on a ‘HEU by HEU’ basis. Thus, if a development has already paid for two water HEUs, a credit for two water HEUs will be given at any reassessment. To clarify: credits are not provided for the dollars paid, but for the number of HEUs to which any previous payments correspond.
[32] A stepped methodology the Council uses to calculate development contributions is summarised at cl 15. For present purposes, step 8, the final step is most relevant. It links to a schedule of charges in the 2018 DCP (Appendix 1) which enables contributions to be calculated by infrastructure type and catchment:20
Development contributions effective from 1 July 2020 (charges include GST)
Catchment
District Wide
Reserves
*
District Wide community
facilities
District
Wide Roading
Roads and Tran-
sport
Storm- water
Waste- water
Water
Total charges
All areas (if not covered below) $3,099 $1,379 $987 $5,465 Horotiu 1 $3,099 $1,379 $987 $5,119 $14,871 $507 $25,962 Huntly $3,099 $1,379 $987 $31 $1,434 $6,930 Lorenzen Bay 2 $3,099 $1,379 $987 $13,031 $602 $5,335 $4,630 $29,063 Meremere $3,099 $1,379 $987 $8,322 $13,787 Ngaruawahia $3,099 $1,379 $987 $2,859 $2,669 $3,143 $14,136 Pokeno $3,099 $1,379 $987 $8,768 $3,831 $1,696 $4,664 $24,424 Raglan $3,099 $1,379 $987 $10,692 $602 $5,335 $4,630 $26,724 Rangiriri $3,099 $1,379 $987 $8,322 $13,787 Southern Districts $3,099 $1,379 $987 $2,822 $8,287 Tamahere CLZ $3,099 $1,379 $987 $8,745 $2,822 $17,032 Tamahere Subcatchment A $3,099 $1,379 $987 $43,854 $2,822 $52,141 Tamahere Subcatchment B $3,099 $1,379 $987 $54,541 $2,822 $62,828 Taupiri/ Hopuhopu $3,099 $1,379 $987 $3,143 $8,608
19 Noting there is an incorrect cross-reference in the 2018 Policy, but the relevant wording is identical.
20 Highlight added. This is the schedule required by s 201(2).
Te Kauwhata $3,099 $1,379 $987 $3,261 $359 $19,432 $8,322 $36,839 Tuakau $3,099 $1,379 $987 $1,874 $11,073 $6,273 $24,685 Whaanga Coast $3,099 $1,379 $987 $34,245 $39,710
[33] The 2018 DCP also contained a capital works schedule of assets (required under s 201A) for which development contributions would be used. It specifies no assets for wastewater in the Ngāruawāhia catchment.
[34] In my view these clauses clearly and adequately specify the event giving rise to a requirement for a development contribution. I conclude that the DCPs are valid in this regard.
[35] The plaintiffs also submit that the DCPs do not comply with s 201 of the Act because they do not contain a schedule that accords with s 202. There are two parts to what is required in the schedule according to s 202: the development contributions payable and the event giving rise to a requirement. I have already covered the latter of these requirements. The former requirement was not addressed in detail in the plaintiffs’ submissions. However, for the reasons identified by the defendant, I consider that Appendix 1 of the DCPs complies with the requirements of s 202(1)(a). It categorises development contributions according to activities, dividing the district into 16 catchments (plus a residual catchment for areas not covered by a specific catchment location), setting out the individual development contribution components payable in each catchment for each activity.
[36] Accordingly, I reject the plaintiffs’ contention that the 2018 and 2021 DCPs do not comply with ss 201(2) and 202(1)(b) of the Act.
Issue 2: Does the operation of the 2018 and 2021 DCPs permit the WDC to require a wastewater contribution at the building consent stage?
The plaintiffs’ argument
[37] The plaintiffs submit WDC’s requiring development contributions in the First Assessments, without a contribution for wastewater, prohibited it from requiring a specific wastewater contribution under the Second Assessments.
[38] According to the plaintiffs, the first available opportunity for assessing development contributions was under the OTL First Assessment and the 99 NL First Assessment. Both DCPs were, the plaintiffs submit, intended to ensure that all development contributions were calculated at the resource consent stage. Doing so gives developers certainty and predictability, even when the overall project requires subsequent consents and authorisations.
[39] Allowing the WDC to levy “up to three times in [one] project and under three different policies” would “go against the intention of predictable and transparent D[evelopment] C[ontribution] requirements, as noted in the [Act] and key cases”, according to the plaintiffs. In short, they submit territorial authorities are not permitted to double-dip by returning to the same development to require further contributions at a later point in the process.
[40] In the case of OTL, the Development Contributions Advice Notice for the First Assessment outlines the contributions that were assessed:
Development Contribution Calculations
Activity Catchment Quantity Contribution Assessed Reserves District Wide 25.000000 $77,475.00 Facilities District Wide 25.000000 $34,475.00 Roading District Wide 25.000000 $24,675.00 Roads & Transport Not Applicable $0.00 Stormwater Not Applicable $0.00 Wastewater Not Applicable $0.00 Water Ngaruawahia 25.000000 $78,575.00 Total Development Contributions Payable
$215,200.00
[41] The plaintiffs submit that it is clear from the above table, especially from the heading “Contribution Assessed”, that in the First Assessments WDC assessed wastewater at $0,00 and determined that it did not require a contribution. Because of this, the carve out in cl 11.2 that “for whatever reason, development contributions were not assessed …” cannot apply, according to the plaintiffs, because wastewater was assessed. The plaintiffs acknowledge, however, that the reason why wastewater was assessed at $0.00 is that the schedule to the 2018 DCP showed that Ngāruawāhia did
not have a development contribution for wastewater, because there were no capital projects at that time relating to wastewater.
[42] Further, according to the plaintiffs, the other exception, “when (if any) subsequent consent is sought, a re-assessment will be undertaken”21 cannot apply either, because “subsequent consent” must be understood as the exact type of consent originally applied for. The plaintiffs say that where, for example, a land use consent is applied for, followed by a building consent, the latter, different consent, cannot attract an ability to require a contribution. The modifier “subsequent” can only be understood to connect to the original consent.22
[43] In the alternative, the plaintiffs say that even if a subsequent consent can encompass a different type of consent relating to the same development project, the type of consent here does not meet the test to trigger a development contribution.
Analysis
[44] As WDC acknowledges, where a contribution has been assessed for a particular type of development contribution, for example wastewater, at the resource consent stage, no development contributions can be required at a subsequent building consent stage. That is because there would be a credit for the contribution previously requested in the first assessments.
[45] However, where a development contribution for a particular activity (such as wastewater) has not been required, there would be no available credit. That particular activity would potentially remain available for a development contribution to be required at a subsequent consent stage.
[46] The DCPs make it clear that development contributions can be re-assessed on a subsequent application for the same project, but that credit would be available for development contributions already paid.
21 2018 DCP and 2021 DCP at cl 11.2
22 One example is available here on these facts: where 99 NL re-applied for a land use and subdivision consent for 24 lots, a re-assessment of those lots was undertaken in accordance with this clause. This was permissible according to the plaintiffs’ interpretation of the DCP.
[47] The OTL and 99 NL First Assessments were determined in accordance with a schedule which did not account for any wastewater infrastructure. Wastewater was deemed not applicable, not because the plaintiffs’ projects would not create demand for wastewater infrastructure, but because the 2018 DCP did not incorporate wastewater assets or projects in respect of the Ngāruawāhia catchment. However, the 2021 Policy included wastewater development contributions for Ngāruawāhia, which the plaintiffs had not previously paid. These were accounted for as follows:23
Development contributions effective from 1 July 2022 (charges include GST)
Catchment
District Wide Reserves * District Wide community facilities District Wide Roading Roads and Tran- sport Storm- water
Waste- water
Water
Total charges
All areas (if not covered below) $2,737 $2,764 $1,351 $6,852 Horotiu 1 $2,737 $2,764 $1,351 $2,530 $26,986 $545 $36,913 Huntly $2,737 $2,764 $1,351 $10 $6,984 $1,007 $14,853 Lorenzen Bay 2 $2,737 $2,764 $1,351 $2,689 $522 $6,873 $11,628 $28,564 Meremere $2,737 $2,764 $1,351 $16,419 $23,271 Ngaruawahia $2,737 $2,764 $1,351 $927 $264 $12,908 $1,520 $22,471 Pokeno $2,737 $2,764 $1,351 $6,473 $2,931 $10,436 $5,286 $31,978 Raglan $2,737 $2,764 $1,351 $2,689 $522 $6,807 $11,628 $28,498 Rangiriri $2,737 $2,764 $1,351 $16,419 $23,271 Southern Districts $2,737 $2,764 $1,351 $2,830 $9,682 Tamahere CLZ $2,737 $2,764 $1,351 $7,832 $2,830 $17,514 Tamahere Subcatchment A $2,737 $2,764 $1,351 $18,280 $2,830 $27,962 Tamahere Subcatchment B $2,737 $2,764 $1,351 $20,826 $2,830 $30,508 Taupiri/ Hopuhopu $2,737 $2,764 $1,351 $12,379 $1,520 $20,751 Te Kauwhata $2,737 $2,764 $1,351 $3,753 $207 $16,200 $31,126 $58,138 Tuakau $2,737 $2,764 $1,351 $228 $897 $9,520 $9,056 $26,553 Whaanga Coast $2,737 $2,764 $1,351 $36,841 $43,693
[48] The area in respect of which the development contribution for Ngāruawāhia wastewater infrastructure applied was also represented in the following map included in the 2021 DCP:
23 Highlighting added.
[49] The capital works schedule in the 2021 DCP was also updated to reflect two new Ngāruawāhia wastewater assets, as reflected in the following excerpt from Appendix 3 of the 2021 DCP:
| Work programme/Asset | Catchment | Description | % DCs | % Other | Estimated Capital Cost |
| Wastewater | Ngaruawahia | Ngaruawahia wastewater reticulation renewals | 30% | 70% | $2,600,000.00 |
| Wastewater | Wastewater Treatment | Ngaruawahia wastewater treatment plant upgrades | 20% | 80% | $53,000,653.00 |
[50] These projects are the Ngāruawāhia wastewater pipeline project, replacing the rising main to the Ngāruawāhia wastewater treatment plant.
[51] I accept WDC’s submission that it is allowed to require development contributions in relation to such expenditure, where appropriate, by requiring a certain type of development contribution at a later stage for a different activity, even where contributions for other activities were required in respect of earlier consents.
[52] I also accept WDC’s submission that the natural and ordinary meaning of cl 11.2 of the DCP does not support reading down “subsequent consent” to mean “a consent of the same type as the first consent application”. There is no ambiguity in the clause — the territorial authority is entitled to require a further contribution. Further, cl 11.9.1 informs the correct understanding of cl 11.2. There is no credit available to the plaintiffs in respect of wastewater, as wastewater had not previously been assessed or paid. There is, however, credit available for water, as water had previously been assessed and/or paid (as in the example in cl 11.9.1, set out above).
[53] Contrary to the plaintiffs’ submission, the Act does not preclude further development contributions in respect of subsequent consents for the same project, as long as the subsequent consent creates demand. In response to this alternative argument, WDC submits that the building consents do create demand.
[54] I do not accept cl 11.2 must be understood in the manner contended for by the plaintiffs — that “subsequent consent” refers to the exact type of consent originally applied for. Its meaning in light of the purpose and scheme of subpt 5 cannot be so inflexible.
[55] Moreover, I consider cl 11.9.1 aids this interpretation by narrowing the contribution for which credits will be given to the particular activity for which payment was made, e.g. “water”. My interpretation of both DCPs, the Act and the case law is that a territorial authority may only require a contribution once for each activity at a single milestone (with limited powers for re-assessment in a change of circumstances). But this does not prevent a territorial authority requiring a
contribution for, say, water at the resource management stage, and then a different contribution for wastewater at the building consent stage.
[56] The development contribution here did not “double dip” as it only concerned a contribution for wastewater, not other infrastructure that had already been the subject of a contribution.
[57] My interpretation of the 2018 and 2021 DCPs means WDC’s decision was permissible in principle. However, that is not the final hurdle. The case law is clear that where an additional assessment occurs, the statutory process for a development contribution requires the new consent to generate demand in and of itself.
[58] The plaintiffs rely on the Court of Appeal’s decision in Beaumont Trading Company v Auckland Council in support of their argument that the building consent in respect of which development contributions were required created no additional demand for wastewater infrastructure.24
[59] In Beaumont, the Council granted land use and building consents in 2012 to build a hotel, without requiring an open space development contribution at that time. Then, in 2013, after the hotel had been built, Beaumont applied for a subdivision consent for unit titles for each of the hotel rooms. At this later stage, the Council required a development contribution for open space acquisition in relation to the subdivision.
[60] The Court of Appeal found that the second, later-in-time, consent must generate a demand itself for a contribution to be permissible.25 The parties to that case accepted that the subdivision itself (in 2013) did not generate any additional demand for reserves, as that generation of demand had occurred at the land use and building consent stage in 2012; the subdivision was just an administrative exercise with no effect on demand.
24 Beaumont Trading Company v Auckland Council [2016] NZCA 223, [2016] NZRMA 359 [Beaumont CA].
25 At [24].
[61] In rejecting the submission that the consent upon which a contribution is required need only be connected to the overall development (which does generate demand),26 the Court of Appeal held “the use of the word “for” in [s 198(1)](b) and
(c) suggests the demand must have a direct relationship with the particular consent or authorisation”.27 The Court accepted that the purpose of the provisions relating to development contributions is essentially to ensure the Council is funded and developers pay their fair share. However that does not advance matters if the statutory trigger, in that case the subdivision consent, does not create the necessary demand.28
[62] In the present case, the plaintiffs submit that the land use consent which the defendant approved before building consents were applied for outlined exactly the size of each dwelling, the garage size, as well as water related features such as baths, showers, toilets, a laundry and a kitchen. The plaintiffs submit that the defendant at the time of the land use consent knew exactly the number of household equivalent units (HEUs) that would be generated. It also knew that “wastewater” would be a service requirement that is generated by a housing development. While the dwellings were not physically built (between the land use consent and building consent stage) like in Beaumont, the principle is the same in that nothing from the development has changed in the time between the different consents.
[63]For the following reasons I consider that the Court of Appeal’s decision in
Beaumont is distinguishable from the present facts:
(a)First, in Beaumont, the parties agreed that the additional subdivision consent created no additional demand for reserves. By contrast, in the present case WDC does not accept that the building consents in respect of which development contributions were required, created no additional demand.
(b)Second, in the present case, no building had occurred before the relevant building consents were obtained. Nor would any building have
26 This was the position taken in the High Court, above n 5, and in Neil Construction v North Shore City Council, above n 4.
27 At [28].
28 At [38].
been allowed before consenting had occurred. The demand at issue in the present case was yet to arise and could not have arisen before building had been consented. By contrast, in Beaumont no additional demand would be generated after the hotel had already been built, as the subdivision consent was sought afterwards.
(c)Third, the building consents for which a development contribution was required in the present case do not present the same difficulties in meeting the definition of a “development” in s 197(1) of the Act. That was an essential requirement which was not met in Beaumont. In the present case, the application for a building consent triggers the ability to levy under s 198(1)(b), the phrasing of which is not dependent on there being a development, but rather applies to building work situated in its district. Further, there is a distinction between the facts of the two cases in terms of the demand that is generated at the particular stage. In the present case, the relevant demand for wastewater infrastructure clearly arises at the appropriate stage for which the contribution is required, namely at the building consent stage. There is no concern here that the relevant demand has already been factored into a contribution already targeted towards wastewater infrastructure.
[64] For these reasons, I do not accept the present facts are analogous to those in the Beaumont case. Beaumont is not authority precluding imposition of another separate development contribution in respect of a different activity for the same project. Rather, the effect of Beaumont is to preclude another development contribution being required where the development is simply “reformulated” legally, and no effect or change incurs in fact. In this regard, the Court of Appeal adopted counsel’s submission that:29
…where the building is already occupied there is a sense in which the “lines on a plan” analogy is apt because the subdivision in fact makes no other changes. In a case such as the present it will not lead to or engender environmental effects not already taking place.
29 See Beaumont CA, above n 24, at [37].
[65] The flaw in Auckland Council’s approach in Beaumont was that the unit title subdivision was an administrative exercise which had no effect on demand, not that it had imposed a second development contribution requirement for the same project. A hotel which is already built and in use creates the same demand for reserves no matter how title is arranged. However, a subsequent development contribution following a consent which does create demand is not caught by Beaumont. Nor is there any provision in the Act prohibiting further development contributions to be assessed in respect of a building consent for the same project in respect of which an earlier development contribution has been assessed for different activities. There is no basis for the plaintiffs’ argument that “subsequent consent” in cl 11.2 of the DCP should be interpreted narrowly to mean “a consent of the same type as the first consent application”. There is no ambiguity in that clause. The natural and ordinary meaning of “subsequent consent” is any consent for the same development after the first consent.
[66] The building consents in respect of which development contributions were required in the present case generated demand in and of themselves for wastewater infrastructure in the Ngāruawāhia catchment.
[67] The Council has discretion in respect of which type of development contribution it requires at which stage. It may be preferable to do this at an earlier stage where possible, as Harland J opined in Everton,30 but it is not incorrect to do so at a subsequent stage especially where, as here, the relevant community facilities came into being at a later stage. As in Beaumont,31 the touchstone is that the statutory trigger, here the building consents, creates the necessary demand. If so, then requiring a development contribution at a subsequent consent stage will not be precluded.
[68] As the Court of Appeal recognised, calculation of demand is undertaken on an activity by activity basis.32 The blank “quantity” column in the First Assessment set out above at [40] shows that no demand calculation occurred in the First Assessment in respect of wastewater. By contrast, an example of the Second Assessment, from
30 Everton Heights Ltd v Hamilton City Council [2023] NZHC 40 at [127].
31 Beaumont CA, above n 24, at [38].
32 At [19].
one of OTL’s building consent development contribution notices, shows the relevant demand calculation in the “quantity” column for wastewater:33
Activity
Catchment
Quantity
Contribution Assessed
Reserves Not Applicable $0.00 Facilities Not Applicable $0.00 Roading Not Applicable $0.00 Roads & Transport Not Applicable $0.00 Stormwater Not Applicable $0.00 Wastewater Ngaruawahia 1.000000 $12,908.00 Water Not Applicable $0.00 Total Development Contributions Payable
$12,908.00
[69] This is also consistent with the wording of cl 11.9.1 of the DCP which refers to credits being given towards the “activity” for which payment was made on a “HEU by HEU” basis.
[70] As WDC submits, ordinarily there would be no additional development contributions payable at building consent stage because of credits for those paid at subdivision/land use consent stage. But where, as in the present case, a particular type of development contribution had not been previously paid there would be no available credit and that particular type of development contribution would therefore be payable.
What about the pump stations funded by the plaintiffs?
[71] Section 200(1)(b) provides that a territorial authority must not require a development contribution for (inter alia) network infrastructure if, and to the extent that, the developer will fund or otherwise provide for the same network infrastructure. I do not think WDC is strictly correct that “even in a situation where a development had an on-site pump station with excess capacity that would be irrelevant to a developer’s liability to pay DCs”. That proposition is too broad. However, as WDC submits, the schedule of assets in the 2021 DCP does not include any projects related to pump stations at Old Taupiri Road or Ngāruawāhia Road. The network infrastructure in respect of which development contributions have been levied — the Ngāruawāhia wastewater pipeline project replacing the rising main to the
33 Highlighting added.
Ngāruawāhia wastewater treatment plant, is different network infrastructure. Section 200(1)(b) is not a barrier to WDC requiring a development contribution in relation to the Ngāruawāhia wastewater pipeline project, notwithstanding the plaintiffs’ paying for pump stations.
Overall assessment
[72] I have concluded for the above reasons that the plaintiffs’ challenges, to WDC’s application of the DCPs to require development contributions in relation to wastewater, lack merit.
[73] As a cross-check, I will apply to the present facts the “stepped process and line of inquiry” proposed by Potter J in Neil Construction.34
Step 1 Is the subdivision or development a “development”, that is does it generate a demand for reserves or infrastructure? (s 197 definition) (s 200). Yes Step 2 Does the development (either alone or cumulatively with another development) require new or additional assets or assets of increased capacity to provide for reserves or infrastructure which will cause the council to incur capital expenditure (s 199(1)) or has already caused the council to incur capital expenditure for the development (s 199(2)). Yes Step 3 Is there an alternative source of funding? No
[74] Potter J supplied examples to illustrate the operation of this process.35 The plaintiffs’ developments correspond with “Project B”:
(i) Generates a demand for reserves/infrastructure and therefore qualifies as a development.
(ii) The effect of the development is to require new assets or assets of increased capacity.
(iii) No alternative source of funding under s 200.
[75] In accordance with Potter J’s approach, which I respectfully adopt, a development contribution may be required.
34 Neil Construction v North Shore City Council, above n 4, at [113].
35 At [114].
Pleadings amendments
[76] At a late stage, the plaintiffs sought leave to amend the statement of claim to include reference to include five additional lots that were not mentioned within the existing statement of claim. The plaintiffs submit that the further building consents related to these five lots would ordinarily be covered by the declaration sought in their existing statement of claim.
[77] In light of my conclusions, it is not necessary to deal with the application to amend the statement of claim, which was opposed. However, the plaintiffs’ position is probably correct that any declaration that I had issued if I had agreed with the plaintiffs’ submissions would be applicable to other similar properties.
Conclusion
[78] I decline to grant the declarations sought. I have concluded that the 2018 and 2021 DCPs of the Waikato District Council are lawful according to, and are being exercised consistently with, the Local Government Act 2002.
[79] Therefore, I consider the Council is entitled to require a development contribution for wastewater at the building consent stage in respect of both OTL’s and 99 NL’s developments.
Result
[80]The plaintiffs’ application is dismissed.
[81] In the joint memorandum filed ahead of the first case management review, the parties agreed they would not be seeking costs against each other. Accordingly, I make no order as to costs.
McHerron J
Solicitors:
Harkness Henry, Hamilton for Plaintiffs Tompkins Wake, Hamilton for Defendant
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