O'Flynn Construction has to pay An Bord Pleanála legal costs over application, court rules

Developer Michael O'Flynn: Judge said he was not satisfied O'Flynn Construction's challenge was a test case and said the construction firm should pay An Bord Pleanála’s costs of the application. File picture: Collins Courts

O'Flynn Construction has been ordered to pay the legal costs of An Bord Pleanála’s application to the High Court to have the company's challenge to a new land tax struck out.

Mr Justice Anthony Barr said he was not satisfied the challenge by Michael O'Flynn's firm was a test case and he therefore awarded costs to An Bord Pleanála.

Last month, the High Court ruled the challenge by O’Flynn Construction Company to a new tax targeting its undeveloped lands on the Naas Road in Dublin was moot and struck out the proceedings.

An Bord Pleanála had argued O’Flynn Construction's case against it was “moot” as the original map of taxable lands has been abandoned.

The matter was back before the judge on Friday to decide on who should pay the legal costs of the main case and of the An Bord Pleanála application.

The judge said the costs of the main proceedings would be relatively small in relation to the drafting of papers and the motion for leave to bring a judicial review. He ruled there should be no order for costs, which means both sides pay their own costs.

In relation to the successful An Bord Pleanála application, Mr Justice Barr said there had been an invitation from the planning appeals body in a letter to O'Flynn Construction to withdraw the challenge.

He said O'Flynn Construction had submitted it was a test case and other land owners were awaiting the outcome of the proceedings.

The judge said the construction firm should pay An Bord Pleanála’s costs of the application. He said he was not satisfied it was a test case.

28-day stay granted

On the application of the O'Flynn counsel Oisin Collins SC, the judge granted a stay of 28 days in the event of an appeal.

The Residential Zoned Land Tax (RZLT) was due to apply to eligible lands from last February, but the minister for finance has delayed its activation by one year and directed local authorities to draw up a fresh list of sites for which it will apply.

The levy, set at 3% of a site’s value, was introduced in Budget 2022 in a bid to “the use of land for building homes”. Land zoned for residential development before January 1, 2022, is liable for consideration within the initial scope of the RZLT.

Dublin City Council had zoned the O’Flynn lands, located on the former Nissan site on the Naas Road, for mixed-use, which allows for residential development. The O'Flynn group secured 10-year permission in 2021 to develop more than 1,100 apartments on the 19-acre site.

The council and appeals board agreed the lands should be included on the list of sites to be subject to the RZLT from February 2024.

The O’Flynn firm and several other large landowners separately initiated legal challenges over negative determinations from An Bord Pleanála.

However, with the changes introduced by the minister for finance, An Bord Pleanála argued in the High Court the O’Flynn firm’s legal action was now challenging a “redundant” decision that is a “legal nullity”.

The company has made fresh submissions to Dublin City Council ahead of the drawing up of the new RZLT list and can appeal any decision made to the board and then any appeal decision to the court, the planning authority submitted.