O'Flynn Construction Company Unlimited Company v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr Justice Barr
• Judgment Date: 14 June 2024
• Neutral Citation: [2024] IEHC 362
• Docket Number: [Record No. 2023/1139JR]
• Court: High Court

Between

O'Flynn Construction Company Unlimited Company

Applicant

and

An Bord Pleanála

Respondent

and

Dublin City Council

Notice Party

[2024] IEHC 362

[Record No. 2023/1139JR]

THE HIGH COURT

JUDGMENT of Mr Justice Barr delivered electronically on the 14 ^th day of June 2024.

Introduction.

1 . This is an application by An Bord Pleanála to strike out the applicant's challenge to its decision dated 17 August 2023, on grounds that the proceedings have become moot.

2 . While the respondent is the moving party in this application, it will be more convenient to refer to the landowner as the applicant, as that company is the applicant in the substantive proceedings. Accordingly, An Bord Pleanála will be referred to in this judgment as the respondent, even though it is the moving party in the present application.

Background.

3 . A tax known as Residential Zoned Land Tax (hereinafter “RZLT”) was introduced by the Finance Act 2021, which inserted part 22A into the Taxes Consolidation Act 1997, as amended. The purpose of RZLT was to provide a new tax to incentivise development of housing on land which was suitably zoned and serviced, as indicated on maps to be provided by local authorities covering their functional areas. The tax was set at 3% of the site value, to be self-assessed by the landowner where such lands were deemed to meet the criteria for payment of the tax, which lands were referred to as being “in scope”; with liability and enforcement arrangements for collection of the tax to be managed through the Revenue system.

4 . All land that was zoned for residential development, or residential development and a mix of other uses, in a development plan or local area plan, before 01 January 2022, and which remained subject to the relevant zoning on that date, was liable for consideration within the initial scope of the RZLT. The imposition of the tax was intended to encourage activation of existing planning permissions on lands, which were identified as being in scope, and to incentivise owners of suitable lands without planning permission, to commence the process of engagement with planning authorities on proposals for development.

5 . The Act provided that for the purpose of identifying which landowners would be liable to pay the tax, the local authority had to prepare a draft map showing which land in their area they deemed to satisfy the criteria as set out in the statute. There was provision for affected landowners to make submissions on the draft map prepared by the local authority. Having considered these submissions, the local authority would then issue its determination. If adverse to the interests of the landowner, the determination could be appealed by the landowner to An Bord Pleanála, following which the final map would be prepared.

6 . The legislation, as originally introduced, set out a timeline leading to the publication by local authorities of the final RZLT maps by 01 December 2023. The relevant dates under that process were as follows: 01 November 2022 – publication by the relevant local authorities of draft maps showing lands that were deemed in scope; 01 January 2023 – final date for submissions to relevant local authorities by landowners and members of the public on inclusions or exclusions in the draft map; 01 April 2023 – determination by relevant local authorities on the submissions received; 01 May 2023 – publication by the local authority of supplemental maps, including any changes arising from the first consultation process; and 01 May 2023 was also the deadline for appeal to the Board against the initial determination by the local authority on the submissions as above. The Board had sixteen weeks to determine appeals; 01 June 2023 – deadline for submissions on the supplemental maps, after which, there was a right of appeal to the Board. The Board had eight weeks to determine these appeals. This was a parallel process to the right of appeal from the local authority determinations. 01 December 2023 was the designated date for publication of the final map by the local authority. 01 February 2024 was the date on which a liability to RZLT would arise on the basis of the final maps. The tax had to be paid by May 2024.

7 . The applicant's lands are located on the former Nissan site on the Naas Road, Dublin 12. In the Dublin City Development Plan 2022–2028, the lands are zoned Z14, as strategic development and regeneration areas. This is a mixed-use zoning, which allows for residential development.

8 . The applicant made a submission to the local authority on 22 December 2022, seeking to have its lands removed from the draft RZLT map. On 29 March 2023, the local authority determined that part of the applicant's lands were in scope and should remain on the map. On 28 April 2023, the applicant appealed that determination to the respondent. By order dated 17 August 2023, the respondent refused the appeal and confirmed the determination of the local authority.

9 . On 11 October 2023, the applicant instituted the substantive proceedings herein, seeking leave to proceed by way of judicial review to challenge the decision of the respondent of 17 August 2023. The leave application was opened on that date. It was adjourned to 06 November 2023, when leave was granted to the applicant. On the return date, the respondent was given leave to bring the present application seeking to strike out the application as having become moot, prior to filing its statement of opposition.

10 . The respondent submits that the present proceedings have become moot due to the provisions of the Finance (No. 2) Act 2023, which amended s.653 of the TCA 1997, as amended; providing inter alia that the date of first liability to RZLT would be 01 February 2025, instead of 01 February 2024. More importantly, the effect of the amendment was to provide that the liability to tax would not arise on foot of the 2023 map, but would be on the basis of the final RZLT maps, that will be published by the local authorities by 31 January 2025.

11 . The amending legislation provided that the process leading to the creation of the 2024/2025 final RZLT map effectively has to start again, with landowners having the right to make fresh submissions to the local authority as to whether their land should be included in the draft map and, if dissatisfied with the determination of the local authority, they have a fresh right of appeal to the respondent.

12 . The revised timeline is as follows: the draft map had to be prepared by the local authority by 01 February 2024; submissions from landowners thereon had to be made by 01 April 2024; the local authority has to issue its determination on the submissions by 01 July 2024; the landowner has a right of appeal against that determination to An Bord Pleanála, which has to be submitted by 01 August 2024; An Bord Pleanála will have until 20 November 2024 to issue their decision on any appeal lodged with them.

The Respondent's Submissions.

13 . The respondent's application is that the applicant's challenge to the decision of the respondent on the appeal from the determination of the local authority made in 2023, which decision was given by the respondent on 17 August 2023, is now redundant and is a legal nullity, due to the fact that the applicant can make fresh submissions to the local authority, which it has done.

14 . The determination on those submissions must be given by the local authority by 01 July 2024. If the applicant is dissatisfied with that determination, it has a right of appeal to the respondent. The respondent will have to give its decision on any appeal so lodged, by 20 November 2024. If the applicant is advised that that decision is erroneous, or unlawful in any way, it can challenge it by way of fresh judicial review proceedings.

15 . The respondent submits that any controversy in existence about the inclusion of the applicant's lands in the 2023 map, is not part of any tangible or concrete dispute, because that map has no legal consequence, or effect. Such liability to RZLT, if any, as may arise for the applicant, will only arise on foot of the final 2024/2025 map, on which he has the right to make submissions to the local authority, which right he has exercised, and in the event that their determination is adverse to its interests, the applicant can appeal that determination to the respondent. It is submitted that in these circumstances the present proceedings have become moot by virtue of the amending legislation in 2023.

The Applicant's Submissions.

16 . On behalf of the applicant, it was submitted that as the core issue in dispute between the parties was the state of the applicant's lands as of 01 January 2022, that state of affairs was fixed in time and could not change. It was submitted that in these circumstances, where the submissions that had been lodged on behalf of the applicant, are in almost identical terms to those originally submitted to the local authority, it is more than likely that the same decision will be given by the local authority in their determination, which will be handed down on or before 01 July 2024.

17 . The applicant submits that this is all the more likely given the provisions of s.653K of the Act, which provides that in considering any submissions made on the draft map, the local authority shall reflect the determinations that have already been made under that section of the Act, when making such revisions to the draft map as it considers appropriate. Thus, it is submitted that the local authority is, in effect, bound by its own previous determination on the content of the 2023 map, which included the applicant's lands.

18 . The applicant further submitted that in the event of there being an appeal from any determination that would be handed down by the local authority, that appeal would be in identical terms to that previously brought before the respondent; in which case,...