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Any written submissions received (other than such elements of a submission which may constitute personal data) shall be published on the Dún Laoghaire - Rathdown County Council website not later than 11th January 2023. In order to make a submission, you will need to select the box below to confirm that you understand this.
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Re: Residential Zoned Land Tax
Part 22A of the Taxes Consolidation Act 1997 (as inserted by section 80 of the Finance Act 2021) (for convenience the “ZLT Act”)
Submission made on the draft map published by the local authority under section 653C of the ZLT Act
20th December 2022
Dear Chief Executive,
We,Redacted textare the owner / developer of lands at Redacted text (Folio DN129710F). Our lands are included in the draft map prepared by the local authority under section 653C of the ZLT Act.
We make this submission under section 653D.
In accordance with section 653D(3), this submission is accompanied by a map prepared by Ordnance Survey Ireland at a scale at which the site of our lands can be accurately identified (the “Site”).
We request exclusion of the Site from the final map, for the reasons given below.
Before that, we make the following preliminary observations that are relevant to the submission.
The ZLT Act is a taxing statute and those must be interpreted strictly: see Bookfinders Ltd. v The Revenue Commissioners [2019] IECA 100 and Inspector of Taxes v Kiernan [1981] IR 117. In particular, no liability to tax should be imposed by reason of ambiguity or slack language. As explained by the Supreme Court, in Dunnes Stores v. Revenue Commissioners [2020] IESC 60:
“If, after the application of the general principles of statutory interpretation, it is not possible to say clearly that the Act applies to a particular situation, and if a narrower interpretation is possible, then effect must be given to that interpretation.”
More generally, the purpose of the ZLT Act is “to encourage the timely activation of zoned and serviced residential development land for housing, rather than to raise revenue”. This is clear from section 2 of the Guidelines for Planning Authorities on Residential Zoned Land Tax published by the Minister for Housing &c. in June 2022 (the “Guidelines”). That was also true of the predecessor in function to the ZLT Act, the Urban Regeneration and Housing Act 2015 (as amended) (the “VSL Act”). The purpose of the Act was expressed “as a mechanism to incentivise the use and development of underused or vacant sites, not to raise revenue” (see, in particular, Circular PL 7/2016). In that context, it is logical that the owner should not be burdened with the tax where imposition of the tax would prevent, rather than encourage, the activation of land for residential development.
REASON ONE – NOT SERVICED
The Site must be excluded because it is not, for the purposes of the ZLT Act, serviced land.
Before elaborating this point, we are advised that lands may be considered “serviced” for the purposes of the Planning and Development Act 2000 (as amended) (the “Planning Acts”) or, more correctly, permission may lawfully granted for development of those lands, in circumstances where the same lands do not satisfy section 653B(b) of the ZLT Act.
That is because the ZLT Act and the Planning Acts use different language, and have a different purpose.
Please be advised that we have argued, and will continue to argue, that, for the purposes of the Planning Acts, the Site is serviced.
Without prejudice to that position, we make the submission that it is not reasonable to consider the Site to:
“have access, or be connected, to public infrastructure and facilities, including roads and footpaths, public lighting, foul sewer drainage, surface water drainage and water supply, necessary for dwellings to be developed and with sufficient service capacity available for such development”.
We note that the necessary public infrastructure and facilities must be existing or extant. We say that because the Site must “have access” or “be connected” to services “with sufficient service capacity”. Where residential development is dependent on improvement of public infrastructure or facilities, whether planned, permitted or in the course of construction, the Site must be excluded.
As explained by the High Court, in Navratil v. An Bord Pleanála [2020] IEHC 292, when dealing with this issue under the VSL Act, the fact deficiencies in public infrastructure and facilities “can or will be” addressed is not relevant to the legal test. In the same way, the fact we might have plans within our control, that would resolve any such deficiency, whether within the Site or not, is likewise irrelevant.
The Site must be considered by reference to the facts and circumstances now existing. When considered in that manner, it is clear that the Site is not, for the purposes of the ZLT Act, serviced land.
We say that because:
(A) With respect to foul sewer drainage, a significant upgrade is needed in the Foxrock catchment area by Irish Water before anymore residential development is feasible.
We have addressed above the items of public infrastructure and facilities listed as illustrative examples within section 653B(b).
The Guidelines suggest, at page 24, that land will be “out of scope” (i.e., should be excluded) where works to connect the lands to services in the public road require planning permission, are not minor and require access to third party lands. The guidelines state that “[i]f the works required to connect the land to services are materially significant, for example require access to 3rd party lands which are in private ownership or would require CPO or planning permission in themselves, then the land should be considered to be out of scope” and, in particular, “examples where land would be considered out of scope would include where the works required to connect the land to services involve the crossing of European Sites, rivers, streams or rail infrastructure where statutory consents are required”.
These are true. If and to the extent the Guidelines can be read to suggest these are the only circumstances where lands are “out of scope”, the Guidelines are not faithful to the language of the ZLT Act.
REASON TWO – PENDING LEGAL CHALLENGE
The Site will soon be developed for residential development, but we are restrained from implementing a planning permission for that purpose. Specifically, legal proceedings that question the validity of the permission have been commenced, and are not yet determined.
The ZLT Act recognises that owners might be prevented from carrying out residential development by appeals to the Board against a decision to grant permission by the Council, or by legal challenge to a permission granted by the Council or the Board: section 653AF of the ZLT Act.
We read the ZLT Act to allow the owner to either:
(A) pay the tax in full and, if the permission survives appeal or legal challenge, get repayment of the tax paid;
(A) defer the tax, but, if the permission does not survive appeal or legal challenge, pay the deferred tax with interest; or,
(B) sell the lands before the appeal or legal challenge is determined, but must pay the tax and interest in full.
We do not believe that fairly respects our property rights, or recognises the ease with which legal challenge is commenced, and the frequency those challenges are successful for reasons beyond our control. For this reason, we must insist that the Site be excluded from the plan because it is impossible to activate the lands for residential development by reason of legal challenge affecting the property.
Yours Sincerely,
Redacted text
Director ofRedacted text
Part 22A of the Taxes Consolidation Act 1997 (as inserted by section 80 of the Finance Act 2021) (for convenience the “ZLT Act”)
Submission made on the draft map published by the local authority under section 653C of the ZLT Act
20th December 2022
Dear Chief Executive,
We,
We make this submission under section 653D.
In accordance with section 653D(3), this submission is accompanied by a map prepared by Ordnance Survey Ireland at a scale at which the site of our lands can be accurately identified (the “Site”).
We request exclusion of the Site from the final map, for the reasons given below.
Before that, we make the following preliminary observations that are relevant to the submission.
The ZLT Act is a taxing statute and those must be interpreted strictly: see Bookfinders Ltd. v The Revenue Commissioners [2019] IECA 100 and Inspector of Taxes v Kiernan [1981] IR 117. In particular, no liability to tax should be imposed by reason of ambiguity or slack language. As explained by the Supreme Court, in Dunnes Stores v. Revenue Commissioners [2020] IESC 60:
“If, after the application of the general principles of statutory interpretation, it is not possible to say clearly that the Act applies to a particular situation, and if a narrower interpretation is possible, then effect must be given to that interpretation.”
More generally, the purpose of the ZLT Act is “to encourage the timely activation of zoned and serviced residential development land for housing, rather than to raise revenue”. This is clear from section 2 of the Guidelines for Planning Authorities on Residential Zoned Land Tax published by the Minister for Housing &c. in June 2022 (the “Guidelines”). That was also true of the predecessor in function to the ZLT Act, the Urban Regeneration and Housing Act 2015 (as amended) (the “VSL Act”). The purpose of the Act was expressed “as a mechanism to incentivise the use and development of underused or vacant sites, not to raise revenue” (see, in particular, Circular PL 7/2016). In that context, it is logical that the owner should not be burdened with the tax where imposition of the tax would prevent, rather than encourage, the activation of land for residential development.
REASON ONE – NOT SERVICED
The Site must be excluded because it is not, for the purposes of the ZLT Act, serviced land.
Before elaborating this point, we are advised that lands may be considered “serviced” for the purposes of the Planning and Development Act 2000 (as amended) (the “Planning Acts”) or, more correctly, permission may lawfully granted for development of those lands, in circumstances where the same lands do not satisfy section 653B(b) of the ZLT Act.
That is because the ZLT Act and the Planning Acts use different language, and have a different purpose.
Please be advised that we have argued, and will continue to argue, that, for the purposes of the Planning Acts, the Site is serviced.
Without prejudice to that position, we make the submission that it is not reasonable to consider the Site to:
“have access, or be connected, to public infrastructure and facilities, including roads and footpaths, public lighting, foul sewer drainage, surface water drainage and water supply, necessary for dwellings to be developed and with sufficient service capacity available for such development”.
We note that the necessary public infrastructure and facilities must be existing or extant. We say that because the Site must “have access” or “be connected” to services “with sufficient service capacity”. Where residential development is dependent on improvement of public infrastructure or facilities, whether planned, permitted or in the course of construction, the Site must be excluded.
As explained by the High Court, in Navratil v. An Bord Pleanála [2020] IEHC 292, when dealing with this issue under the VSL Act, the fact deficiencies in public infrastructure and facilities “can or will be” addressed is not relevant to the legal test. In the same way, the fact we might have plans within our control, that would resolve any such deficiency, whether within the Site or not, is likewise irrelevant.
The Site must be considered by reference to the facts and circumstances now existing. When considered in that manner, it is clear that the Site is not, for the purposes of the ZLT Act, serviced land.
We say that because:
(A) With respect to foul sewer drainage, a significant upgrade is needed in the Foxrock catchment area by Irish Water before anymore residential development is feasible.
We have addressed above the items of public infrastructure and facilities listed as illustrative examples within section 653B(b).
The Guidelines suggest, at page 24, that land will be “out of scope” (i.e., should be excluded) where works to connect the lands to services in the public road require planning permission, are not minor and require access to third party lands. The guidelines state that “[i]f the works required to connect the land to services are materially significant, for example require access to 3rd party lands which are in private ownership or would require CPO or planning permission in themselves, then the land should be considered to be out of scope” and, in particular, “examples where land would be considered out of scope would include where the works required to connect the land to services involve the crossing of European Sites, rivers, streams or rail infrastructure where statutory consents are required”.
These are true. If and to the extent the Guidelines can be read to suggest these are the only circumstances where lands are “out of scope”, the Guidelines are not faithful to the language of the ZLT Act.
REASON TWO – PENDING LEGAL CHALLENGE
The Site will soon be developed for residential development, but we are restrained from implementing a planning permission for that purpose. Specifically, legal proceedings that question the validity of the permission have been commenced, and are not yet determined.
The ZLT Act recognises that owners might be prevented from carrying out residential development by appeals to the Board against a decision to grant permission by the Council, or by legal challenge to a permission granted by the Council or the Board: section 653AF of the ZLT Act.
We read the ZLT Act to allow the owner to either:
(A) pay the tax in full and, if the permission survives appeal or legal challenge, get repayment of the tax paid;
(A) defer the tax, but, if the permission does not survive appeal or legal challenge, pay the deferred tax with interest; or,
(B) sell the lands before the appeal or legal challenge is determined, but must pay the tax and interest in full.
We do not believe that fairly respects our property rights, or recognises the ease with which legal challenge is commenced, and the frequency those challenges are successful for reasons beyond our control. For this reason, we must insist that the Site be excluded from the plan because it is impossible to activate the lands for residential development by reason of legal challenge affecting the property.
Yours Sincerely,
Director of