The new premises represented the relocation of an existing business from one site in Kaitaia to another, so there was no question of additional traffic being generated. The only impact in terms of roading would involve a change in traffic flow.
He was also arguing that the business occupied a site bordered by State Highway 1 and North Park Drive, the latter built, and paid for, by the subdivider. There was therefore no cost to the council in terms of roading.
The Auckland case supported his view that the council could not legally demand a contribution towards non-existent costs.
He also noted that the council already had a legal opinion regarding the development levy imposed in the new Pak'nSave supermarket on the other side of SH1 (which the Northland Age understands was reduced by some 90 per cent as a result of negotiations between the council and Foodstuffs).
"Councillors may feel it prudent to review this matter themselves before further and possibly unnecessary legal fees are incurred by both paries," Mr McCarthny wrote.
"It is of some concern to me that this matter has yet to be discussed, or even noted, at a full council meeting, and that as a result most of you may not even be fully aware of the matter at hand."
Mr McCarthny said last week that he had told the council that he could not pay the levy in one sum, but had agreed to make small weekly payments. In mid-2011 he was told by council staff that he needed to increase those payments. He responded that he could not afford to do so, but offered a reduced quantum, which he regarded as fair and reasonable, supported by the Auckland and Pak'nSave precedents. That offer was rejected.
(He also noted that he was being asked to pay more than twice the development contribution imposed on Te Ahu).
Meanwhile, he was adamant that the council's demand was unlawful.
"According to the High Court there has to be a direct causal link between costs incurred by the council and the development contribution," he said.
"There is no causal link here. As far as I'm aware the only road improvements listed in the council's 2006-16 long-term plan, and attributed to growth, in this ward are at Ahipara. I don't understand how that might have been necessitated by our building this store in Kaitaia.
"North Park Drive was built by the developer, and the resource consent said all infrastructure had been provided. So where is the cost to the council?
"I don't think they are applying the law properly, and that's why we're going to the High Court. At least that way we'll get answers to the questions we've been asking.
"You have to wonder why the council seems so intent on making it difficult for businesses in Kaitaia to grow," he added. "I would have thought a development like this one was good for the town, but the council doesn't seem to think so. Perhaps they're sacrificing Kaitaia in favour of Kerikeri. There has to be some explanation, but I don't know what it is."
Cr Colin Kitchen told Mr McCarthny last week that he would be asking council staff for a report. He appreciated that the dispute had been going on for a long period of time and accepted the stress it had caused, and undertook to endeavour to resolve it.
The council's senior development engineer, RF Green, has rejected Mr McCarthny's argument on at least two occasions, however.
In May 2011 he told lawyers for Mr McCarthny that the contribution did not have to have anything to do with the road that the development fronted on to, adding that calculations of traffic generation by Mitre 10, using figures provided by Mr McCarthny, indicated that the levy should have been double what was required.
Mr McCarthny had benefited from the fact that the levy was capped at 6 per cent of the development's value.
The following month Mr Green conceded that the council had made no financial contribution to the subdivision, but reiterated that the levy was not related to any particular subdivision or street.
NDC spokesman Rick McCall said that, as was usual when matters were before the court, the council would make no comment.
