Navratil v an Bord Pleanala

JurisdictionIreland
JudgeMr. Justice Michael MacGrath
Judgment Date12 May 2020
Neutral Citation[2020] IEHC 292
Docket Number[2018 No. 750 JR]
CourtHigh Court
Date12 May 2020

IN THE MATTER OF SS. 50, 50 A AND 50 B OF THE PLANNING AND DEVELOPMENT ACT 2000 AS AMENDED BY THE PLANNING AND DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006, THE PLANNING AND DEVELOPMENT (AMENDMENT) ACT 2010 AND THE ENVIRONMENT (MISCELLANEOUS) PROVISIONS ACT 2011

AND

IN THE MATTER OF SS. 5, 6 AND 7 OF THE URBAN REGENERATION AND HOUSING ACT 2015

BETWEEN
ALLAN J. NAVRATIL
APPLICANT
AND
AN BORD PLEANALA
RESPONDENT
AND
CORK COUNTY COUNCIL
NOTICE PARTY

[2020] IEHC 292

Michael MacGrath J.

[2018 No. 750 JR]

THE HIGH COURT

JUDICAL REVIEW

Planning and development – Agricultural land – Applicant seeking to challenge the decision of the respondent to refuse an appeal – Whether the decision of the respondent was irrational, ultra vires and unlawful

Facts: The applicant, Mr Navratil, was a farmer and resided at Ballinacurra House, Midleton, Co. Cork. He was the owner of lands comprised in Folio 37519, Co. Cork which were zoned ‘residential’ in the 2011–2017 Midleton Electoral Area Local Area Plan and in the 2017–2023 East Cork Municipal District Local Area Plan (LAP). The local authority and notice party, Cork County Council, having inspected the lands, made a decision to enter them on the register, despite the lands being in use for agricultural purposes. Mr Navratil’s appeal to the respondent, An Bord Pleanála (the Board), against that decision was refused by order made on 31st July, 2018. The decision of the respondent to refuse the appeal was challenged. The challenge centred on two areas: (a) the applicant contended that the lands were not vacant or idle because they were in full use and production as a farm for agricultural purposes from which he derived his livelihood, and that the decision of the Board to the contrary was irrational, ultra vires and unlawful; (b) the decision of the Board to accept that the lands were suitable for housing development for the requisite period was irrational, unlawful and ultra vires. It was contended that the lands were not suitable for housing because they were not, at the time of the decision, served by public infrastructure and facilities within the meaning of s. 48 of the Planning and Development Act 2000. In this regard it was contended that the lands were not adequately serviced by water/waste water and that there was during the relevant period a necessity to construct a link road to enable development of housing to take place. It was said that these issues had been highlighted in the LAP.

Held by the High Court (MacGrath J) that the Board (and the inspector) when considering the requirements of s. 6(5) of the Urban Regeneration and Housing Act 2015 addressed the incorrect question by looking to the future and in particular to the future completion of a statutory process, rather than the question which it was required to address of whether the site was served by the public infrastructure (in this case the slip road at the Lakeview roundabout) necessary to enable housing to be provided and serviced and fell into legal error in so doing. MacGrath J held that a site is vacant or idle for the purposes of s. 5(1)(a)(iii) of the 2015 Act, if it is unoccupied, idle or not in use. He held that whether the applicant’s lands were vacant or idle within the meaning of the legislation was a matter for assessment by the Board in accordance with the court’s determination of the meaning of the provision. MacGrath J was not satisfied that lack of candour had been established, but even if he was incorrect in this, he held that it was not material to the issues to be determined. He held that to exercise the court’s discretion to refuse the relief sought would not be in accordance with principle and would be a disproportionate exercise of such jurisdiction.

MacGrath J held that the applicant was entitled to succeed. The parties were invited to communicate with the court in relation to the form of order.

Relief granted.

JUDGMENT of Mr. Justice Michael MacGrath delivered on the 12th day of May, 2020.
The Urban Regeneration and Housing Act 2015
1

The Urban Regeneration and Housing Act 2015 (“ the Act”) was enacted to address concerns regarding the shortage of housing and of lands upon which to build them. The focus of the Act is on vacant sites as defined therein and concerns ‘residential’ and ‘regeneration’ lands. This case concerns lands zoned for residential purposes.

2

Local authorities are empowered by the Act to enter a vacant site on a vacant site register (“ the register”). Before doing so the authority must be satisfied that certain statutory criteria are fulfilled. In summary, regarding residential land, first, the land must be a ‘site’ which is defined in the Act as an area of land exceeding 0.05 hectares identified by a planning authority in its functional area and does not include any structure that is a person’s home. Second, the land must come within the definition of ‘residential land’, which is defined by reference to the zoning which it enjoys in a County Development Plan or a Local Area Plan. Third, the site must be situated in an area in which there is a need for housing. Fourth, the site must be suitable for the provision of housing. Fifth, the site, or the majority of the site, must be vacant or idle.

3

The planning authority, or the Board on appeal, is obliged by virtue of s. 6(5) of the Act to determine whether or not a site was suitable for the provision of housing by reference to a number of matters. These are (a) the core strategy, (b) whether the site was served by the public infrastructure and facilities (within the meaning of s. 48 of the Act of Planning and Development Act, 2000 ( “the Act of 2000”) necessary to enable housing to be provided and serviced, and (c) whether there was anything affecting the physical condition of the land comprising the site which might affect the provision of housing. Similarly, the planning authority, or the Board on appeal, is obliged by virtue of s. 6(4) of the Act to determine whether or not there was a need for housing by reference to certain criteria which it is not necessary to consider as there is no issue in this case but that there is a need for housing in the area of the applicant's lands.

4

By virtue of the provisions of s. 6(2) of the Act, a planning authority must enter on the register a description, including a map, of any site in its functional area which was, in the opinion of the planning authority, a vacant site for the duration of the 12 months preceding the date of entry. The owner of the lands thereby becomes liable to pay an annual levy on the value of the lands. This is known as a vacant site levy and it remains a charge on the land until it is paid.

5

Prior to making an order for the entry of the lands on the register, by virtue of the provisions of s. 7(1) of the Act, the local authority must give the owner written notice setting out the reasons for the proposed entry. The owner may make representations in respect of the notice within 28 days. Having considered any such representations, if of the opinion that the site was a vacant site for the duration of the 12 months concerned and continues to be a vacant site, then in accordance with s. 7(2) of the Act, the planning authority must enter the site on the register. Under s. 7(3) the planning authority is obliged to give written notice to the owner when it is so entered and, under the provisions of s. 9 of the Act, the owner has twenty-eight days to appeal that decision to the respondent, An Bord Pleanála (“ the Board”). The entry does not take effect until the appeal is finally determined.

6

In accordance with the provisions of s. 9(2) the appellant/owner of the site, on the appeal to the Board, bears the burden of proving that the site, or the majority of the site, was not vacant or idle for the duration of the requisite twelve-month period preceding the entry on the register. This is to be contrasted with appeals under ss. 11 (notices to owners of sites on the register) and 18 (appeals against demand for payment of levy), where the burden is on the land owner to show that the site, or a majority of the site, is no longer a vacant site. Although subject of some debate in written submissions, it is accepted that the provisions of s. 9(2) do not have the effect of reversing the onus of proof in respect of criteria other than that the land was vacant or idle for the twelve-month period.

7

The Act also provides that every planning authority shall, before 1st June, 2018, or such later date in that year as the Minister may specify by order, give a written notice to the owner of any vacant site that stands entered on the register on 1st January, 2018. The levy is assessed on the basis of market valuation which is to be determined in accordance with the provisions of the Act. In respect of 2018, an amount equal to 3% of the market value of the vacant site is payable. Thereafter, the amount rises to 7% determined in accordance with the provisions of s. 12 of the Act, or such other percentage not exceeding 7% as may stand prescribed for the time being by Regulations.

Background
8

The applicant is a farmer and resides at Ballinacurra House, Midleton, County Cork. He is the owner of lands comprised in Folio 37519, Co. Cork which are zoned ‘residential’ in the 2011 – 2017 Midleton Electoral Area Local Area Plan and in the 2017 – 2023 East Cork Municipal District Local Area Plan (LAP). The local authority and notice party, Cork County Council, having inspected the lands, made a decision to enter them on the register, despite the lands being in use for agricultural purposes. Mr. Navratil's appeal to the Board against this decision was refused by Order made on 31st July, 2018. The decision of the respondent to refuse the appeal is challenged in these proceedings. The challenge centres on two areas:

(a) The applicant contends that the lands are and were not vacant or idle because they are in full use...

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