Developer challenges decision to refuse permission for land hit with RZLT tax

High Court reporters

A decision to refuse planning permission on account of a site being insufficiently serviced is “irrational” given it was hit with a tax applicable to ready-to-develop lands, a building firm has alleged in the High Court.

The Residential Zoned Land Tax (RZLT) was introduced in the Finance Act 2021. The tax is an annual tax calculated at a rate of 3 per cent of the market value of land.

Jolview Limited says An Bord Pleanála has on the one hand determined there are no capacity issues or other impediments to the development of its lands at Holmpatrick, Rush Road, Skerries, thus making it liable for the Residential Zoned Land Tax (RZLT).

The developer says the board, in considering whether to apply for RZLT, took into account the relevant infrastructure and servicing of the site and its suitability for residential development.

On the other hand, it says, the board later refused to grant it permission to build 18 houses on the greenfield site about 2km from Skerries town centre based on a report from its inspector that found there were “insufficient services and facilities” to support future occupants of the proposed development.

The board also found residential development on the site would be contrary to the Fingal Development Plan, it says.

The Drogheda-based company is asking the High Court to find that the planning refusal is “contrary to natural justice” and that the board is bound by its decision of last February to apply the RZLT to the site.

It says the planning refusal is invalidated by the board’s failure to have regard to its earlier tax decision and by its misinterpretation of the Fingal Development Plan.

The company notes the RZLT decision cannot guarantee a grant of planning development for any residential development on the site, but, it claims, An Board Pleanála cannot revisit or reconsider its earlier determination that the site is suitable for residential development in principle.

The developer also maintains that sections of the Taxes Consolidation Act, which underpins the RZLT scheme, contravene articles of the Constitution as an “unjust and disproportionate attack” on the company’s private property rights.

The RZLT levy, set at 3 per cent of a site’s value, was introduced in the 2022 budget in an attempt to encourage “the use of land for building homes”. It was due to apply to eligible lands from last February, but the Minister for Finance has delayed its activation by one year.

The case came before Mr Justice Richard Humphreys this week.

The developer’s senior counsel, Jarlath Ryan, instructed by Vincent Hoey & Company Solicitors, was granted permission to continue with the High Court judicial review proceedings against An Bord Pleanála, which has not yet had