Court strikes out O'Flynn challenge to new tax on Naas Road apartment site

An Bord Pleanála successfully argued that O’Flynn Construction Company’s case against it was 'moot', as the original map of taxable lands has been abandoned

Fri, 14 Jun, 2024 - 17:48

Ann O’Loughlin

The High Court has struck out a challenge by Michael O’Flynn’s construction firm to a new tax targeting its undeveloped lands on the Naas Road in Dublin.

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

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 that 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.

The developer submitted that the core issue in dispute is the state of its lands as of January 1, 2022. It told the court its recent submissions to the council were almost identical to its original ones and it is more than likely that the council will give the same decision as before.

It was also logical to assume An Bord Pleanála would also reach the same decision, the firm said. Considering all this, it argued that awaiting the new decisions of the planning authorities would be a waste of time and money.

The company also said the inclusion of the lands on the RZLT map for 2023 and its likely inclusion on the 2024/2025 map has had an adverse effect on their value.

Friday's judgment

The arguments were set out in the judgment of Mr Justice Anthony Barr who was satisfied the action was moot because the decision under challenge has been “overtaken by subsequent events”.

The judge said the amending legislation did not just push back the timeline for drawing up the RZLT map and imposing the liability, it permitted landowners to make fresh submissions on the new draft map. In so doing, the legislation was effectively setting aside the 2023 map and any submissions made on it and was allowing landowners to start the process over.

He did not accept the developer’s contention that its latest submissions to the council regarding the new RZLT map are identical to what it submitted ahead of the 2023 map. The latest submissions were made with the benefit of knowing the council’s previous decision and so it is reasonable to assume the company will have addressed alleged earlier infirmities in reasoning, the judge said.

Therefore, he said, it cannot be presumed that the council or the planning appeals board will come to the same conclusion this time around. He was satisfied An Bord Pleanála’s rejection of the developer’s appeal was effectively made redundant, making the court proceedings moot.