Bolton v New Plymouth District Council
[2025] NZHC 3262
•30 October 2025
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CIV-2024-443-060
[2025] NZHC 3262
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
a decision of the New Plymouth District Council concerning remission of rates
BETWEEN
CLAIRE ALAYNE BOLTON and WARREN LAWRENCE BOLTON
Applicants
AND
NEW PLYMOUTH DISTRICT COUNCIL
Respondent
Hearing: 14 and 15 July 2025 Appearances:
P J Wright, J A R Barrow and C Browne for Applicants H P Harwood and O C Wilson for Respondent
Judgment:
30 October 2025
JUDGMENT OF GRICE J
(Application for judicial review)
[1] On 30 June 2023, Warren and Claire Bolton (the Boltons) applied to the New Plymouth District Council (the Council) for a rates remission in respect of their property for the 2022–2023 rating year “and future years”. The property comprises approximately 24 hectares of land at Bell Block near New Plymouth (the land). On 6 July 2023, the Council refused to grant the remission. The Boltons seek judicial review of that decision.
[2] The Boltons claim that the remission decision should be quashed. They advance various grounds in support of that position. In particular, they say the Council failed to take into account that the land was worth less than the valuation set for rating
BOLTON v NEW PLYMOUTH DISTRICT COUNCIL [2025] NZHC 3262 [30 October 2025]
purposes, and failed to take into account its current use as a rural block. The Boltons also allege that the Council delayed the process of obtaining the subdivision resource consent for residential use of the land, and say the rates should be remitted to account for that delay. In addition, the Boltons contend that the Council failed to properly apply its own policies in determining whether a rates remission was “just and equitable”, and point to “uncertainties” concerning the Council’s policies in relation to the involvement of tangata whenua in the resource consent process.
[3] The Council opposes the application. It says the remission decision was based on lawfully adopted policies of the Council in accordance with the relevant legislation.
Background
[4] The Boltons bought the original 32.5-hectare farmland in 1989. It was zoned Residential 1A by the Council the same year.
[5] About eight hectares of the original farmland was sold to Summerset Villages Ltd for a retirement village in 2018. An application for resource consent was lodged by Summerset in April 2019 and a Cultural Impact Assessment (CIA) was prepared in July 2019. The resource consent was granted on a non-notified basis in October 2019.
[6] On 3 August 2020, the Boltons received a rates demand from the Council for the 2020–2021 rating year in relation to the land, which was being used for grazing. That rates bill was substantially higher than previously, as a result of a significant increase in the rateable value of the land following a recent revaluation.
[7] In November 2020, the Boltons met with the designated Rates Lead officer from the Council. The Boltons asked if their rates could be reduced to a similar level to those assessed for the Māori freehold land adjacent to their property.1 The Rates Lead treated the verbal request as if it were an application for remission of rates
1 The Rates Lead has delegated authority from the Council to make decisions on application for rates remissions. No issue is taken in relation to the delegation.
under the relevant 2018 Council policies in force at the time.2 He refused the application and rejected the Boltons’ offer to pay $20,000 in rates for the 2019-2020 year. The Boltons do not seek reconsideration of that decision, nor is it the subject of the present application for judicial review.
[8] On 3 December 2020, the Boltons entered an agreement for sale and purchase with Robe & Roche Investments Ltd (Robe & Roche) in relation to a further approximately 5.7 hectares of the land. The agreement was conditional, among other things, on Robe & Roche obtaining a resource consent to subdivide the relevant land into residential lots, in accordance with the detailed terms set out in the agreement.
The resource consent was required to be lodged by 30 June 2021.3
[9] On 26 May 2021, Robe & Roche filed a resource consent application for the proposed subdivision. The land was bounded by the Waipu Lagoons, which are wāhi tapu (sacred) to Puketapu hapū, who have mana whenua in relation to the land. Robe & Roche had not been able to engage with the hapū to obtain a CIA for the proposed subdivision prior to the lodging of the consent application.
[10] On 30 June 2023, the Boltons’ lawyer sent a formal letter to the Council seeking a rates remission for the 2022–2023 rating year and future rating years (inclusive of all penalties incurred). On 6 July 2023, the Rates Lead refused that application for remission by email.
[11] The Robe & Roche resource consent ultimately proceeded on a notified basis and was granted on 19 June 2025.
Legal principles relating to judicial review
[12] There was no contest between the parties as to the legal principles relating to judicial review. Both parties refer to the leading decision in relation to local authority
2 The 2018 policies are substantially similar to the present 2021 policies, although the criteria concerning Māori freehold land rates remission have changed somewhat. The Rates Lead explains how he made his decision in his affidavit of 18 June 2025.
3 No deposit was payable, but in the event of a failure to meet the conditions, the Boltons retained the plans, reports and intellectual property in relation to the subdivision.
decision making, Wellington City Council v Woolworths New Zealand Ltd (No 2).4
There, the Court of Appeal said:5
In summary, judicial review of the exercise of local authority power, in essence, is a question of statutory interpretation. The local authority must act within the powers conferred on it by Parliament and its rate fixing decisions are amenable to review on the familiar Wednesbury grounds. Rating authorities must observe the purposes and criteria specified in the legislation. So they must call their attention to matters they are bound by the statute to consider and they must exclude considerations which on the same test are extraneous. They act outside the scope of the power if their decision is made for a purpose not contemplated by the legislation. And discretion is not absolute or unfettered. It is to be exercised to promote the policy and objectives of the statute. Even though the decision maker has seemingly considered all relevant factors and closed its mind to the irrelevant, if the outcome of the exercise of discretion is irrational or such that no reasonable body of persons could have arrived at the decision, the only proper inference is that the power itself has been misused.
[13] The Woolworths principles were described in Mangawhai Ratepayers and Residents Association Inc v Kaipara District Council as follows:6
The right to judicial review of local authority borrowing and rating decisions is long-established and powerful. Courts will not usually intervene in rating decisions on reasonableness grounds, but they respond readily to challenges for illegality.
[14] In general terms, it is for the public authority to determine the degree of weight to be given to relevant considerations.7 Furthermore, it is not appropriate for the Court to substitute its own factual conclusions for those of the decision maker in judicial review.8 Rather, the Court’s role is to look at the process by which the decision was reached, and to decide whether the decision was lawfully made based on the requirements of the empowering instrument.
4 Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 (CA).
5 At 545.
6 Mangawhai Ratepayers and Residents Association Inc v Kaipara District Council [2015] NZCA 612, [2016] 2 NZLR 437 at [101] (footnotes omitted), cited by the Supreme Court with approval in Auckland Council v C P Group Ltd [2023] NZSC 53, [2023] 1 NZLR 35 at [98], n 90.
7 Matthew Smith New Zealand Judicial Review Handbook (2nd ed, Thomson Reuters, Wellington, 2016) at [69.1]–[69.3].
8 Pring v Whanganui District Council [1999] NZRMA 519 (CA) at 523.
[15] The decision maker must take into account any mandatory considerations. In CREEDNZ Inc v Governor-General, the Court of Appeal described the approach to ascertaining mandatory considerations, noting that:9
… it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the Court holds a decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the Court itself, would have taken into account if they had to make the decision.
[16] Mr Browne, for the Boltons, noted that there was a paucity of case law on the review of rates remission decisions, and none were of assistance here.10
Statutory framework — local government and rating legislation
[17] Mr Wright, for the Boltons, took no issue with the overview of the law of rating set out by the Council. Broadly speaking, the Local Government Act 2002 (LGA) sets out the purpose of local government,11 and gives local authorities a general power of competence.12 Section 14 of the LGA contains a number of principles relating to local authorities. Those provisions emphasise the importance of community participation and democratic processes, and act as guide for local authorities’ decision-making.
[18] Local authorities are required at all times to have a long-term plan,13 as well as an annual plan, including a funding impact statement, for each financial year.14 They must ensure that each year’s projected operating revenues are set at a level sufficient to meet that year’s projected operating expenses. This is referred to as the “balanced budget” requirement.15
9 CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA) at 183.
10 Mr Brown handed up Lysaght v Whakatāne District Council (1984) 4 NZAR 304 (HC). That case involved a 1984 application for judicial review of a Council decision refusing to remit rates on the basis of financial hardship. It was decided under the earlier Rating Act 1967. The applicants’ hardship had been caused by economic difficulties in selling subdivided properties. As the Boltons do not claim financial hardship, it is not relevant here.
11 Local Government Act 2002 [LGA], s 10.
12 Section 12(2).
13 Section 93.
14 Section 95.
15 Section 100.
[19] Local authorities’ financial management obligations are contained in s 101 of the LGA. The Court of Appeal considered those provisions in New Zealand Forest Owners Association Inc v Wairoa District Council, and noted that it was implicit in s 101 that councils would:16
…exercise substantial autonomy, deciding where community interests lie, what activities should be undertaken to promote them, how activities will be classified and how expenditure needs will be funded. The obligations are expressed in a very general way and local authorities are to decide what funding sources are appropriate having regard to all the considerations listed in s 101(3), which include the community’s social, economic, environmental and cultural wellbeing. These decisions are to be informed by community preferences revealed through process obligations designed to ensure the community is consulted beforehand and can hold decisionmakers accountable afterward, through the ballot box.
[20] Recently, the Supreme Court confirmed in Auckland Council v C P Group Ltd that rates are a property tax, and there does not need to be a direct correlation between the benefit a ratepayer receives from an activity and the rate set for it.17 Rates are payable regardless of the ratepayer’s views on the services they receive from the council. The Supreme Court, adopting the observations in Woolworths, noted that the ability to impose a differential for the general rate “involves casting a heavier burden than justified solely by relative capital values on one sector rather than another”.18
[21] Rates are assessed and invoiced against rating units as defined in the Local Government (Rating) Act 2002 (the LGRA) and the Rating Valuations Act 1998 (the RVA).19 Liability for rates arises from a person’s status as the owner (or in limited circumstances, the lessee) of the rating unit.20 The features based on which rates can be set differentially, or factors that may be used to calculate liability for targeted rates, are related to the property rather than the ratepayer.21 Rates are levied against properties, not individuals.22
16 New Zealand Forest Owners Association Inc v Wairoa District Council [2023] NZCA 398, [2023] 3 NZLR 476 at [43].
17 C P Group, above n 6, at [62] and [65].
18 At [63], citing Woolworths, above n 4, at 544.
19 Local Government (Rating) Act 2002 [LGRA], s 5 definition of “rating unit”; and Rating Valuation Act 1998, ss 5B and 5C.
20 LGRA, ss 10 and 11.
21 Schedules 2 and 3.
22 Woolworths, above n 4, at 546.
[22] For those reasons, where an individual is responsible for a set of circumstances relating to their property, those circumstances will not generally be a factor in setting the rate. This was illustrated in Kidd v Southland District Council.23 Mr Kidd had a residential complex comprised of self-contained units, each with an individual bathroom. He argued that the Council’s decision to levy rates on the basis of a fixed amount per “pan or urinal” (essentially per toilet) was unreasonable. He contended that the individual toilets in his complex placed no greater demand on the wastewater system than other rest homes that only offered communal bathrooms.24
[23] Mr Kidd’s application for judicial review of the decision setting the wastewater levy was dismissed. This Court observed that Mr Kidd’s argument was “premised entirely on a set of circumstances that are individual to him and of his own making”.25 The Court noted that “[r]ates are assessed on the basis of the characteristics of the rating unit not those of the individual ratepayer, and cannot be determined on the basis of the circumstances of the occupants of the property”.26 Therefore, it said it would not be lawful to set the targeted rates for wastewater on a per occupant or volumetric basis, even if it was practicably feasible to do so.
[24] The process for the setting and levying of rates is laid out in the LGRA.27 Rates are set by resolution of the local authority, and must be set in accordance with the authority’s long term plan as well as the funding impact statement applying to the year in which the rate is set. Relevantly, the Council sets a general rate on a differential basis, which is assessed with reference to the land value, or rateable value, of any given rating unit (for present purposes the land).28 This is set by reference to a number of factors, including the use to which the land is put, the zoning of the land, the area of land, and the value of the land.29 That rateable value must be identified in the local authority’s funding impact statement for the purposes of setting a general rate.
23 Kidd v Southland District Council [2019] NZHC 1947.
24 At [7].
25 At [43].
26 At [49].
27 LGRA, s 23.
28 See ss 13, 14, and 43. Rates must generally be assessed in accordance with a rating unit and its rateable values, which are set out in the rating information database.
29 Section 14 and sch 2.
[25] The rating valuation process is a separate function which is carried out by Quotable Value (QV) on behalf of the Council. The appropriate method for a ratepayer to seek an adjustment to a land valuation assessment (including for rating purposes) is by way of objection under pt 4 of the RVA.
[26] A publicly accessible rating information database is kept by the Council, recording the relevant information used for the setting of rates.30 Ratepayers may object to rating information held in the database.31
[27] Once the rate has been assessed, the Council must deliver a rates assessment to the ratepayer, giving notice of the ratepayer’s liability for rates.32 The ratepayer then becomes liable for those rates.33 The ratepayer and members of the public (to a more limited extent) may inspect the rates record for any rating unit.34 A ratepayer may object if rates have been calculated incorrectly.35
[28] A person may not refuse to pay rates on the ground that the rates are invalid unless they bring proceedings in the High Court to challenge the validity of the rates, on grounds that the local authority is not empowered to set or assess the rates on the particular rating unit.36
[29] A local authority has the power to remit all or part of the rates on a rating unit, provided it has adopted a rates remission policy under s 109 of the LGA, and the conditions and criteria of the established policy are met.37 Section 109 of the LGA provides that a rates remission policy must state the objectives sought to be achieved by the remission of rates, and the conditions and criteria that must be met for rates to be remitted. Otherwise, a local authority has a broad discretion to set their policies as they see fit. The local authority may also adopt and apply a rates postponement policy.38
30 Section 27.
31 Section 29.
32 Section 44(1).
33 Section 44(2).
34 Section 38.
35 Sections 39–41.
36 Section 60.
37 Section 85.
38 Section 110.
Grounds of judicial review
[30] In general terms, the Boltons say that the decision refusing to remit their rates is invalid on the basis that the Council erred in law by:
(a)misinterpreting the relevant rates remission powers and policy;
(b)failing to take into account mandatory considerations; and
(c)taking into account irrelevant matters.
[31] The Boltons seek a remission of the rates on their residentially-zoned farmland to the level of what would have been charged had the rates been set based on the value of the land if it were zoned rural. Their statement of claim and submissions allege numerous errors in the Council’s decision making. While wide ranging, the allegations fall under four main headings: whether delay in the resource consent process gives rise to grounds for remission; whether the Boltons land is comparable to Māori land for rates remission purposes; whether the Council District Plan provisions for tangata whenua create uncertainty; and whether the valuation of the land should have reflected the fact that it could only be used for rural purposes pending consent to subdivision. The particularised allegations in some instances are relevant to more than one of the general headings.
[32] In addition, the statement of claim alleges that the Council erred by failing to have proper regard to any one or more of a number of local government statutory purposes. These general allegations of breach of various statutory provisions must be considered in the context of the particular issue raised. I have set out the relevant statutory framework above, but deal with the allegations of failure to have regard to particular provisions, insofar as they appear relevant, under the four main headings.39
39 The specific allegations are that the Council erred in failing to have regard to or proper and/or appropriate regard to any one or more of the following statutory provisions: LGRA, ss 3 (purpose), and 85 (remission of rates); LGA ss 3 (purpose), 10 (purpose of local government), 11 (role of local authority), 12 (status and powers), 13 (performance of functions under other enactments), 14 (principles relating to local authorities), and 76AA–82A (decision-making and consultation); Resource Management Act 1991 ss 5 (purpose), 18A (procedural principles), 21 (avoiding unreasonable delay), and 36A (no duty to consult about resource consent applications).
[33] The Council opposes the application for judicial review, and notes that the Boltons have not paid any rates owing on the property for the last five years (since June 2020). The land has an underlying residential zoning, and is categorised as farmland for rating purposes. The rates are levied accordingly. Furthermore, the application for remission was dealt with according to the Council’s remission policy, and it has acted in accordance with the relevant legislation, including the requirements of the LGRA. It says that it made no error in refusing to remit the rates.
[34] Before considering the various allegations, I outline in further detail the Council’s rates remission policy and the Boltons’ remission application.
The relevant rates remission policy
[35] The Boltons take no issue with the process undertaken by the Council in developing and adopting the relevant rates remission policies.
[36]Rates Policy 5 provides:
Rates remission in miscellaneous circumstances Section 85 of the Local Government (Rating) Act 2002. Objectives of the policy
It is recognised that not all situations in which the Council may wish to remit rates will necessarily be known about in advance and provided for in the Council’s specific policies.
Conditions and criteria
1.The Council may remit part or all rates on a rating unit where the Council considers it just and equitable to do so because:
a. There are special circumstances in relation to the rating unit, or the incidence of the rates (or a particular rate) assessed for the rating unit, which mean that the unit’s rates are disproportionate to those assessed for comparable rating units, or
b. The circumstances of the rating unit or the ratepayer are comparable to those where a remission may be granted under the Council’s other rates remission policies, but are not actually covered by any of those policies, or
c. There are exceptional circumstances that mean the Council believes that it is in the public interest to remit the rates and where
granting a remission would not create or set a precedent for other ratepayers to receive similar remissions.
[37] Therefore, in order to qualify, an applicant must satisfy one of the criteria in (1)(a), (b) or (c), and establish that because of that it is just and equitable that they be given a rates remission.
[38] Also relevant is the Council’s Rates Policy 4. This details several schemes dealing with remission for qualifying Māori land, to which I return below.40
The remission decision
[39] The Boltons first sought to have their rates remitted in November 2020, when they met with the Rates Lead. The Rates Lead refused the remission application. His letter of 4 December 2020 to the Boltons, insofar as is relevant, reads:
I have followed up with Quotable Value regarding the rateable valuation of
$13,950,000.00. The property has been valued as residential block sub dividable land and as such Quotable Value consider that it has been correctly valued. There was also no objection to the valuation from you at the time. We have noted that the improvements have not been valued and Quotable Value will be in touch with you to value these.
The rates have therefore been levied as follows:
General Rate – Farmland 40,999.05 ($13,950,000 * farmland differential of .002939) Uniform Annual General Charge
438.94
Refuse Targeted Rate
189.88
Roading Targeted Rate
132.86
Taranaki Regional Council
4,766.62
Total
$46,527.35
I confirm that we have rated your property as farmland and the increase has been driven by the increase in the rateable value. We have considered all of our remission policies and none apply in this instance.
40 The Council’s other remission policies deal with more specific circumstances and objectives, for instance, aiming to support community, sporting and similar organisations, or encouraging the protection of natural areas. In addition, there are policies which provide for remission: in cases of financial hardship as a result of changes to the rating system; as an incentive to fix significant water leaks; and where a significant unexpected event has occurred.
You have offered to pay $20,000.00 in rates this year. However the Council must treat all ratepayers the same and apply the rates and remission policies consistently. The rates therefore remain as levied.
I have waived any penalties on instalments one and two while this matter was being considered.
[40] Subsequently, in a letter dated 30 June 2023, a further application was made by the Boltons’ lawyer, Mr Ansley, resulting in the decision under review. The letter reads as follows:
The purpose of this letter is to seek rates relief in respect of the above property, for the 2022-23 rating year and for the future
Their land has been rated as “Residential”, which is its Council zoning, but the land is in fact used for rural activities (grazing of cattle).
Were the property to have a zoning matching its actual use, its value for rating purposes (per a very recent Hutchins & Dick valuation) would be $2,500,000.
The reason that the land is being used as a rural block is because of the difficulties in having the land subdivided. Those difficulties are well known to your Council, and arise from the uncertainties caused by the requirements Council imposes on those wishing to subdivide land with the features the above property has, which lead to delay and cost, and do not guarantee a commercially viable outcome.
We submit that it is unreasonable for the Council to impose rates on the property as if it already had residential subdivision consent. We further submit that, until the uncertainties have been dispelled, it is just and equitable for the Council to remit that part of the 2022-23 (and future years’) rates down to that which would be payable if the land was zoned Rural, and had a rateable value of $2,500,000; and also to remit all penalties.
[41] Mr Ansley’s letter attached a valuation of the land dated 9 June 2023, which had been prepared for the Boltons by registered valuers, Hutchins & Dick. The valuation report noted that it departed from valuation standards in that it had not valued the land according to its “highest and best use”, which is the accepted method of determining market value.41 While the land was zoned residential and its highest and best use would be as a development block land for subdivision, Hutchins & Dick had been instructed to value the land assuming a rural zoning based on land use only. The valuation assessed the value of the land as “rural bareland only” at $2,500,000. It
41 However, the report noted that the valuation had otherwise complied with the International Valuation Standards effective 31 January 2022, the Australia and New Zealand Valuation Guidance Papers for Valuers and Property Professionals, and Property Standards.
specifically noted that it was only a “[h]hypothetical assessment assuming rural valuation.”
[42] The Rates Lead conveyed his decision to Mr Ansley on the application by letter dated 6 July 2023. The letter read:
The land has been rated as Farmland. It was valued by Quotable Value as development land 1 September 2019. The rateable land value was increased to $13,950,000.00. Warren and Claire did not object to this valuation which was used to levy the rates from 1 July 2020.
The land has since been re valued to [$15,510,000.00] as of 1 August 2022. Once again Quotable Value have not received an objection.
We have considered all of our remission policies and none apply in this instance.
The rates therefore remain as levied and we are about to start proceedings to recover the outstanding balance as at 30 June 2023.
[43] The Rates Lead notes in his evidence that the letter from Mr Ansley did not identify any “exceptional circumstances” such that it would be in the public interest to remit the Boltons’ rates. The Rates Lead also points to errors in the letter, including the assertion that the land was rated as “residential”, when it was in fact rated as “farmland”.
[44] I now turn to consider the judicial review application under the four general headings I have identified above, cross-referencing to the pleadings.
Does delay in the resource consent process give rise to grounds for remission?
Submissions
[45]Under this heading, the following pleaded allegations are relevant:
36. In making the Decision the Respondent erred in that it:
…
(c)failed to take into account or properly take into account its prolonged and unreasonable delay in progressing and granting the Application and consequent incurring of unnecessary cost and risk…
(d)failed to take into account or properly take into account the difficulties in having the Land subdivided arising from uncertainties caused by the Respondent’s requirements imposed on those wishing to subdivide land with the features of the land, those difficulties being well-known to the Respondent…
…
(h)failed to take into account or properly take into account the uncertainty as to whether and when the Subdivision Resource Consent would be granted and whether on terms and conditions that were commercially viable and/or consistent with the Respondent’s rateable value
(i)failed to take into account or properly take into account the fact that the Subdivision Resource Consent had not been granted at that time
(j)failed to consider or properly consider whether the rates in respect of the Land should be remitted as requested by the Applicants having regard to the process it prescribed and/or applied to the Subdivision Resource Consent application.
(k)failed to consider or properly consider whether until the Subdivision Resource Consent was granted the rates should be remitted to reflect the actual use and/or value of the Land.
(l)failed to consider or properly consider whether it was just and equitable to remit the rates whether under Policy 5 or otherwise as the Applicant requested until the Subdivision Resource Consent
[46] These allegations are considered in light of Mr Wright's submission that the Council failed to expedite the consent process, delayed obtaining a CIA for the land, and did not facilitate the subdivision of the land into residential lots in a timely manner. Therefore, he says, until that was resolved, the rates should have been remitted.42
[47] A central plank of this argument is that the Council had taken over responsibility from Robe & Roche for obtaining a CIA from Puketapu, and then failed without adequate explanation to obtain the report in a timely way. Mr Wright says the Council’s contribution to this delay was a factor in the consideration of what was “just and equitable” in terms of the policy test for remission.
42 Mr Wright clarified that the “uncertainties” to be dispelled as referred to in Mr Ansley’s letter were those caused by the Council delay in the consent being granted to Robe & Roche.
[48] A substantial amount of the argument at the hearing and of the evidence filed was directed at the delay and its causes. Mr Wright did not suggest the Court should make a definitive finding of fault against the Council.
Resource consent application process
[49]I first set out an overview of the processing of the relevant consent application.
[50] The resource consent application was filed on 26 May 2021. It did not have a CIA attached. Various assessments and reports were obtained. By March 2022, there had been some consultation by Robe & Roche with Puketapu, however it had not obtained a CIA from the hapū, which holds mana whenua over the Waipu Lagoons.
[51] As a result, the Council took over responsibility for the progression of the CIA with Puketapu. The negotiations with the hapū took some time, and on 21 September 2022, Puketapu reported that it would not consent to the subdivision application. It preferred a wider cultural feasibility assessment involving the whole of the Boltons’ land and other nearby properties. The CIA prepared by Puketapu was completed in early 2025.
[52] In the meantime, the Council had put the consent process on hold on a couple of occasions. This was due to the need to assess the wider cultural impact of the subdivision (going beyond the land in question), as well as the Taranaki Regional Council (TRC) indicating that further consents were required from it in relation to freshwater issues following the public notification of the consents in February 2023.43
[53] The freshwater issue involved the wāhi tapu over the Waipu Lagoons and it was ultimately resolved by Beca, the Council’s consultant engineers, who suggested using rain gardens instead of downstream defenders for stormwater drainage in July 2024.44
43 Puketapu and its iwi also lodged objections to the consent when it was notifed.
44 This was set out in a draft memorandum from Beca dated 17 June 2024.
[54] A Commissioner was appointed on 10 December 2024 to oversee the resource consent process. The draft Puketapu CIA report was provided to Robe & Roche in February 2025.
[55] On 25 March 2025, the TRC granted Robe & Roche’s consent applications on a non-notified basis. This relied on the proposals in the Council’s Beca engineering report, resolving the cultural concerns about stormwater drainage into the Waipu Lagoons.
[56] The resource consent hearing was held on 14 and 15 April 2025. The hearing closed on 4 June 2025 following expert consultation on the conditions. On 19 June 2025, the Commissioner issued a decision granting the resource consent based on an amended subdivision proposal by Robe & Roche.
Analysis
[57] Mr Wright, in his detailed analysis of the consent process, argued the Council could have moved things on more quickly. He said that the Council had taken responsibility for the CIA, yet it took a considerable time for that to be produced, and that Robe & Roche should have been advised by the Council to notify the consent earlier.
[58] Mr Wright submits that where a council causes delays in processing a consent, that is a factor to be taken into account when considering remission. Therefore, the allegation of fault directed at the Council is central to the delay argument.
[59] As the Rates Lead correctly notes in his evidence, “rates are a statutory tax to fund Council activities, rather than a payment for services”. Therefore, “[d]issatisfaction with a Council service or the performance of some regulatory function cannot be the basis for granting relief from payment of general rates under the policies”.
[60] The resource management process is a regulatory process and a service provided by the Council.45 Rates are payable regardless of the ratepayer’s views on the services they receive from the Council.
[61] In order to satisfy Rates Policy 5, the only criteria which might be relevant to the delay argument is criteria (1)(c).46 That applies where there are:
…exceptional circumstances that mean the Council believes that it is in the public interest to remit the rates and where granting a remission would not create or set a precedent for other ratepayers to receive similar remissions.
[62] It is clearly not in the public interest to remit rates based on the failure of the Council to deliver a timely service. That would undermine the principle that rates are not related to services provided. In addition, as the Rates Lead noted in his decision and response to Mr Ansley, a remission under Rates Policy 5 in this case would have set a precedent in relation to vacant land blocks with subdivision potential within the residential zone.
[63] The Court of Appeal in New Zealand Forest Owners Association pointed out that if rates were related to services received, there would be no workable standard against which a court could “assess the cost-benefit relationship without being drawn into the merits of that decision”.47
[64] In addition, judicial review is intended to be “a relatively simple, untechnical and prompt procedure”.48 The Supreme Court has also noted the limitations of the judicial review process, emphasising that it is a supervisory jurisdiction.49 Evidence is given by affidavit and deponents are rarely cross-examined. Relevantly to this case, the Supreme Court pointed out that a court does not have the usual fact-finding processes available to it. A court, in considering an application for judicial review, is
45 As noted above, there does not need to be a direct correlation between the benefit a ratepayer receives from an activity and the rate set for it: C P Group, above n 6, at [62] and [65].
46 Criteria (1)(a) and (b) both require comparisons with other rating units.
47 New Zealand Forest Owners Association, above n 16, at [76].
48 Te Runanga O Ngati Awa v Attorney-General HC Wellington CIV-2006-485-1025, 28 March 2007 at [6].
49 Chief of Defence Force v Four Members of the Armed Forces [2025] NZSC 34, [2025] 1 NZLR 21 at [105].
not in position to make a summary assessment of the Council’s fault in relation to delays in the processing of a consent.
[65] In this case, as a secondary issue, it is far from clear that the Council was responsible for the delays. The wāhi tapu issue was complex. Robe & Roche had not obtained a CIA before they lodged their consent, as they had been unable to engage with the hapū. It was identified at the outset that the subdivision would have significant issues for Puketapu, and the Council took steps to work with the hapū and the applicants to manage those issues. Robe & Roche had professional planners, surveyors and lawyers involved in the project who could and did take steps to progress the consent application. It would be difficult in those circumstances to argue material reliance on Council actions or advice as to how best to progress the consent applications.50
[66] In any event, it appears that it was due to Puketapu’s input, likely facilitated by the Council officials, that the subdivision was ultimately consented. Importantly, the subdivision plan that was approved differed materially from that which had been lodged with the consent application initially. Mr Wright says that the differences were not significant, but it is apparent that the lots were rearranged and some resized to ensure a non-residential boundary against the Waipu Lagoons. In addition, it was ultimately the Council engineers, Beca, who suggested the solution to the stormwater runoff that had caused a significant cultural issue for Puketapu. That June 2024 proposal was adopted and ultimately incorporated into the plan, leading to the grant of the consent.
[67] Any claim against the Council for damages based on negligence in causing the delays, breach of statutory timeframes, or otherwise, would need to be pursued as a civil claim under the High Court Rules 2016. This would involve detailed pleadings, evidence, cross-examination, legal argument and a determination following trial. As I have noted, establishing liability for delays in such an action may be problematic. But what is relevant to this application is that the civil claim process cannot be
50 Mr Bolton himself considered there was no wāhi tapu in relation to the land and expressed that view to the Council.
bypassed via a summary determination of fault against the Council in the context of judicial review. The application must therefore fail on this ground.
Is the Boltons’ land comparable to Māori land for rates remission purposes?
Submissions
[68]The relevant allegations pleaded under this heading are that the Council:
(a)failed to consider and/or determine or properly consider whether it was just and equitable to remit the rates
…
(l)failed to consider or properly consider whether it was just and equitable to remit the rates whether under Policy 5 or otherwise as the Applicant requested until the Subdivision Resource Consent was granted.
(m)failed to take into account or properly take into account the objectives, conditions and criteria of Policy 5
[69] In accordance with Rates Policy 5(1)(a), the Rates Lead considered whether the incidence of the Bolton’s rates was disproportionate to assessments for comparable rating units.51 He found that a number of properties in the district (with similar zoning and features) had experienced similar increases in ratable value with corresponding increases in rates.
[70] Mr Wright submits that the appropriate comparator in undertaking the 5(1)(a) assessment was Māori freehold land, given the similarly limited subdivision potential of such land. He also says that under 5(1)(b), the Rates Lead should have compared the land with the remission policy schemes that apply to Māori land under Rates Policy 4.52 While the possible comparison to Māori land was not a consideration suggested in the letter from Mr Ansley, it had been referred to earlier by the Boltons in their remission discussions with the Rates Lead in 2020. Alternatively, Mr Wright
51 To recap, Rates Policy 5(1)(a) provides that the Council may remit rates where it considers it just and equitable because “[t]here are special circumstances in relation to the rating unit, or the incidence of the rates (or a particular rate) assessed for the rating unit, which mean that the unit's rates are disproportionate to those assessed for comparable rating units”.
52 Rates Policy 5(1)(b) provides for rates remissions where “[t]he circumstances of the rating unit or the ratepayer are comparable to those where a remission may be granted under the council’s other rates remission policies, but are not actually covered by any of those policies”.
submits there are exceptional circumstances under 5(1)(c), which mean that a rates remission would be “just and equitable”.
Analysis
[71] Under s 102 of the LGA, the Council, in setting its rates remission policies, must consider the extent to which remission of rates on Māori freehold land facilitates attainment of objectives listed in sch 11(2) to the Act. The sch 11(2) objectives include:
(a)supporting the use of the land by the owners for traditional purposes:
(b)recognising and supporting the relationship of Māori and their culture and traditions with their ancestral lands:
(c)avoiding further alienation of Māori freehold land:
(d)facilitating any wish of the owners to develop the land for economic use:
(e)recognising and taking account of the presence of waahi tapu that may affect the use of the land for other purposes:
(f)recognising and taking account of the importance of the land in providing economic and infrastructure support for marae and associated papakainga housing (whether on the land or elsewhere):
(g)recognising and taking account of the importance of the land for community goals relating to—
(i) the preservation of the natural character of the coastal environment:
(ii) the protection of outstanding natural features:
(iii) the protection of significant indigenous vegetation and significant habitats of indigenous fauna:
(h)recognising the level of community services provided to the land and its occupiers:
(i)recognising matters related to the physical accessibility of the land.
[72] Rates Policy 4 was adopted to promote those objectives, and includes four schemes relating to Māori land. It reads:
Rates remission on Māori land policy
This is the Council’s policy on rates remissions for Māori freehold land and other categories of Māori land made under the authority of sections 85 and 114 of the Local Government (Rating) Act 2002 and sections 102(2)(e), 102(3)(a), 102(3A)(a) and 102(3A)(b), 108 and 109 of the Local Government Act 2002.
Council only remits rates on Māori land, it does not allow postponements. In determining this policy the Council has considered those matters set out in Schedule 11 of the Local Government Act 2002 and the principles set out in the Preamble to Te Ture Whenua Māori Act 1993.
Objectives of the policy
To support the principles set out in the Preamble to Te Ture Whenua Māori Act 1993 by supporting Māori ownership, use, occupation and development their lands.
To support the achievement of Council’s vision and goals through rates remissions that facilitate Māori aspirations for their lands as a cornerstone for Māori wellbeing and prosperity.
[73] The definition of Māori land under Policy 4 includes various categories of Māori land under the Te Ture Whenua Māori Act 1993, as well as general land owned by Māori or Māori organisations. Specifically excluded from the policy is land that is out of Māori ownership, commercially leased land, and land used for the purposes that are inconsistent with the objectives of the policy. Therefore, to support the policy objectives, land will not qualify for consideration unless it meets the definition of Māori land and is in Māori ownership.
[74] Mr Wright suggests that the comparison between the Boltons’ land and land governed by Policy 4 is apt because of the fact there is wāhi tapu on the Boltons’ land.
[75] This argument is misconceived. The Boltons’ land is not Māori land, nor is it owned by Māori. Therefore, allowing the remission of rates for the Boltons’ land does not support the specified objectives of Policy 4. The rationale for allowing rate remissions by way of comparison under that policy does not apply.
[76] Therefore, the Council was not in error in failing to compare the land with Māori land or to apply the special remission policies relating to Māori land in the remission decision by analogy. The circumstances of neither the Boltons nor their land are comparable to Māori land.
[77]The grounds pleaded under this head fail.
Council District Plan provisions concerning tangata whenua
Submissions
[78]The relevant allegations pleaded under this heading are that the Council:
…
(c) failed to take into account or properly take into account its prolonged and unreasonable delay in progressing and granting the Application and consequent incurring of unnecessary cost and risk…
(d) failed to take into account or properly take into account the difficulties in having the Land subdivided arising from uncertainties caused by the Respondent’s requirements imposed on those wishing to subdivide land with the features of the land, those difficulties being well-known to the Respondent…
…
(h) failed to take into account or properly take into account the uncertainty as to whether and when the Subdivision Resource Consent would be granted and whether on terms and conditions that were commercially viable and/or consistent with the Respondent’s rateable value
(i) failed to take into account or properly take into account the fact that the Subdivision Resource Consent had not been granted at that time
[79] Also relevant are the general allegations that the Council failed to take into account its statutory obligations, including: to avoid unreasonable delay; principles of decision making and consultation; and that it had no duty to consult about resource consent applications.53
[80] Mr Wright argues that a factor not taken into account in the remission decision was, as Mr Ansley put it:
…uncertainties caused by the requirements Council imposes on those wishing to subdivide land with the features [the land] has, which lead to delay and cost, and do not guarantee a commercially viable outcome.
[81] It was common ground that this referred to the cultural considerations applying to any subdivision consent application under the Council’s District Plan. The
53 See the statutory provisions listed at above n 39.
document also provides a consultation model process for use in consultation with tangata whenua.
[82] Mr Wright points to the District Plan implementation section, which appears to be a plain English outline of the types of activities referred to in the District Plan. It provides guidance for applicants making resource consents, including the nature of the process, the material they are required to submit, and the issues they must consider. Relevantly, a list of the content required in a resource consent application includes “[a]ny effects on WAAHI TAPU or the cultural or spiritual values of significance to TANGATA WHENUA”. The document also notes that consultation with relevant iwi or hapū may be required, and that the Council will advise which specific group to consult with. It notes that planning staff encourage an applicant to consult directly with tangata whenua where the Council has obtained prior agreement from the relevant iwi or hapū. The document also includes a guide to good practice for consultation. It provides that Council staff will undertake consultation if the applicant does not wish to.
Analysis
[83] Under s 74(1)(b) of the Resource Management Act 1991 (the RMA), a District Plan must be prepared in accordance with the provisions of pt 2 of the RMA. Part 2 includes four sections relevant to the present issue. Section 5 provides that the purpose of the RMA is “to promote the sustainable management of natural and physical resources”. Section 6(e), of particular relevance, provides:
6 Matters of national importance
In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for the following matters of national importance:
…
(e) the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga:
[84] Such persons under s 7 “shall have particular regard to … kaitiakitanga” and, under s 8, “shall take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi)”.
[85] The District Plan provisions, in relation to consultation with tangata whenua and the content of the applications, do no more than reflect one of the ways in which requirements under ss 6, 7 and 8 of the RMA are effected. The Council’s regulatory consent processes are subject to those RMA provisions and Council staff are required to bear them in mind when processing any application.
[86] The “uncertainties” created by the provisions of the District Plan concerning the recognition of Māori and their culture, including wāhi tapu, are simply lawful requirements of the District Plan. There is nothing to suggest that the Plan was otherwise unlawful.
[87] The Rates Lead made no error in failing to take “uncertainties” relating to cultural policies in the District Plan into account.
Reliance on QV valuation for rating purposes
Submissions
[88] The allegations particularised in the statement of claim relevant to this head are that the Council:
…
(b) wrongly took into account that the Land had been “rated as Farmland” when it had been valued by QV as Residential – Vacant Block Land
…
(e) wrongly considered and/or only took into account the QV valuations of the value of the Land giving rise to the rates and/or
(f) wrongly considered and/or took into account that the Applicants did not object to the QV valuations used to set the rates
(g) failed to take into account or properly take into account the Market Valuation – Rural Grazing Property dated 9 June 2023 by Hutchins & Dick to the effect that if the Land had a zoning matching its actual use its value for rating purposes would be $2,500,000
…
(n) misconstrued Policy 5 and/or otherwise acted unfairly or unreasonably as set out herein and/or misunderstood the circumstances and/or was predisposed to decline the Applicant’s Request
[89] Mr Wright submits that the Boltons’ application for remission was misconstrued as a collateral attack on the QV rating valuation, to which the Boltons’ had no objection. In particular, Mr Wright says the land should be treated for rating purposes as if it were rural zoned land, based on the Hutchins & Dick valuation,54 given that it is not currently subdivided into residential lots.
Analysis
[90] Mr Wright submits that, as an alternative to the comparison with Māori land (under Policy 5(1)(a)), a comparison could be drawn to other land with “subdivision potential” but with similar developmental difficulties to the Boltons’ land.
[91] Mr Wright now apparently suggests there should have been a comprehensive search of all subdividable land to check for wāhi tapu causing delays and whether rates remissions had been granted on those properties. That was not necessary. The application for remission was not made on that basis. Mr Ansley’s letter was merely asking for the land to be valued as if it could not be subdivided.
[92] Mr Ansley did not suggest that there should be a comparison with other land which might have had remissions granted. The Rates Lead was not required to give detailed reasons in relation to matters not advanced by Mr Ansley. In the circumstances, the Rates Lead gave sufficient reasons based on the grounds upon which the application was put.55
[93] In effect, the argument boils down to the suggestion that the rateable value of the land as determined by the Council should not be used for the purposes of assessing rates, because the land has not yet been subdivided into residential lots due to lack of
54 Mr Ansley’s letter suggests that the Hutchins & Dick valuation of the land be relied upon for rating purposes. He asks that the rates be assessed as if the land had a “rateable value” of $2,500,000, until “the uncertainties have been dispelled”.
55 In addition, failure to give reasons was not pleaded.
consent. This submission was correctly rejected by the Rates Lead in his decision. The argument overlooks the fact that the general rate must be set by reference to the rateable value of the land.56
[94] In this case, the land was zoned as Residential 1A, and contained an area of approximately 24 hectares. The categorisation for rates also took into account the present use of the land (pending subdivision into residential lots) and its categorisation as farmland (as it was more than four hectares). The value of the land was assessed in accordance with the Council’s valuation by QV.
[95] The farmland category rate has the lowest differential in the Council’s Annual Plan. The Rates Lead in his evidence sets out the four differentials applied to each category under the 2022–2023 Annual Plan:
(a)Group 1: Commercial/Industrial – 1.5991
(b)Group 2: Residential – 0.4033
(c)Group 3: Small Holdings – 0.3240
(d)Group 4: Farmland – 0.3202
[53] The Rates Lead further describes the method of calculation of the Boltons’ rates as follows:
32.The amount each rating unit pays for the general rate is calculated by applying the differential against the rating unit’s rateable land value. For example, a rating unit with a land value of $1,000,000 within Group 1 for the 2022–2023 financial year would pay [$15,991.00] (excluding GST) for the general rate. ($1,000,000 x 1.5991% = $15,991).
33.For the 2022-2023 rating year, the rateable value for the Property was that at 1 September 2019 which was:
(i) Land value: $13,950,000
(ii)Improvement value: $1,350,000
(iii)Capital value: $15,300,000
34.For the 2023-2024 rating year, and subsequent years, the Rateable Value of for the Property was that set through the 2022 general revaluation …, which was:
56 LGRA, ss 13(3). The local authority can take the rateable value as the annual value, the capital value of the land, or the land value of the land.
(i) Land value: $15,510,000
(ii)Improvement value: $1,350,000
(iii)Capital value: $16,860,000
[96] The Rates Lead notes that the Council received no objection to the land valuation made three years earlier for the year commencing 1 July 2020 (the date from which the unpaid rates had accrued).
[97] Mr Harwood points out the QV valuation was relatively conservative, noting that the March 2018 sale to Summerset realised a significantly higher sale price per hectare than had been assessed by QV.
[98] Mr Wright acknowledges that the QV valuation takes into account the potential of the land, the difficulties of subdivision, and the Waipu Lagoons which are wāhi tapu. He accepts that a valuation objection would be unlikely to succeed in this case. The Hutchins & Dick valuation could not have supported an objection to the QV valuation, as it was not carried out according to established valuation standards (which the valuation report acknowledges) and does not purport to reflect the actual market value of the land.57 As noted earlier, it is only a “[h]ypothetical assessment assuming rural zoning”.
[99] In effect, the Boltons seek to circumvent the proper procedures for challenging the rateable value of the land. They argue that a remission decision can be based on a hypothetical rateable value that does not reflect the true market value of the land.
[100] The Council made no error in concluding that the Boltons were in fact attempting to contest the QV valuation of the land and to do so were required to follow the statutory process. To allow the remission policy to be used as a way of challenging the valuation of the land for rating purposes, when the rates had been set according to Council processes and decisions which are not challenged, would be contrary to the
57 Under s 4 of the Rating Valuations Act 1998, the Valuer General sets the minimum quality standards and specifications for the maintenance and upkeep of district valuation rolls “in the interests of ensuring a nationally consistent, impartial, in dependent, and equitable rating valuation system”.
purposes of the LGRA. Those purposes include “ensuring that rates are set in accordance with decisions that are made in a transparent and consultative manner”.58
[101]The grounds under this head also fail.
[102] Having dealt with the main issues raised, I now consider some procedural issues which arose during the hearing.
Application for production of witness for cross-examination and to exclude evidence
[103] The Boltons made an application to cross-examine Mr Richard Watkins, a Council officer who swore an affidavit for the Council. Mr Watkins was not involved in the handling of the resource consent application, and the Council planners who had been involved are no longer employed by the Council. The evidence was largely in rebuttal to evidence filed by the Boltons concerning the processing of the resource consent application and allegations of delay.
[104] In the course of the hearing, Mr Wright indicated he would not pursue his application to cross-examine Mr Watkins. He said the contested evidence could be dealt with by the Court as a matter of weight. Mr Harwood, for the Council, countered and filed a list of evidence filed for the Boltons, to which he submits little weight should be accorded, alleging the impugned parts are hearsay, opinion or legal submission.
[105] I do not consider the evidence relating to the detail of the resource management process and responsibility for delays is relevant to the issues in the judicial review, apart from it providing context for and the narrative relating to the process. In particular, the evidence suggesting liability on the part of the Council or Robe & Roche and their various consultants is not helpful.
[106] Two late affidavits were sought to be admitted by the applicant, that of Mr Benjamin Lawn and Mr Timothy Coleman. These respond to evidence from the Council (in particular from Mr Watkins) about the resource consent process and, in the
58 LGRA, s 3(a)(ii).
case of Mr Coleman, the discovery of a full copy of an email dated 21 September 2022 alleging it was deliberately omitted by the Council. I admit the evidence of Mr Coleman insofar as it sets out the full email of 21 September 2022 already produced. I admit the affidavit of Mr Lawn only as it relates to the corrections of his previous affidavit.
[107] The balance of the evidence in those affidavits is not cogent. As I have indicated, the affidavits insofar as they relate to the processing of the resource consent and attribution of blame for delays that are before the Court provide context but are otherwise of little assistance. The balance of those affidavits is not admitted.
[108] Accordingly, I place little, if any, weight on any of the impugned evidence, and rely on it only to provide context.
Conclusion
[109] I have analysed the application for judicial review under the four main headings which reflected the submissions made and cross-referenced them to the pleadings. As will be apparent, none of the grounds for judicial review pleaded are made out.
[110] The application for judicial review is dismissed. The Council made no error in refusing the application to remit the rates on the Boltons’ farmland, for the reasons set out above.
Costs
[111] It is agreed that the appropriate categorisation is 2B for the purpose of costs. Regardless of the result, Mr Wright considers costs should follow the event. However, Mr Harwood indicates the Council will seek increased costs if the application for judicial review fails.
[112] It is appropriate that costs follow the event. The Council has five days to file its submissions in support of its increased costs application, and the Boltons have a
further five days to respond. The Council then has a further two days to file a reply (if necessary).
Grice J
Solicitors:
Peter Ansley Legal, New Plymouth for Applicants Simpson Grierson, Auckland for Respondent
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