Divine Intervention on Vacant Site Levy

The levy on vacant residentially zoned land was introduced under the Urban Regeneration and Housing Act 2015 (as amended) (“the Act”). According to the Minister, the principle aim was to encourage the development of land and not the raising of revenue.

The levy may be applied to residentially zoned lands which are (or the majority of which are) vacant and the vacant nature of the site has an adverse effect on existing amenities, reduces the amenities provided by existing public infrastructure and facilities and/or has adverse effects on the character of the area.

For the purpose of assessing whether a site has such an adverse effect, consideration will be given to whether the site being vacant contributed to (i) the site or other properties in the area being in a neglected or ruinous state (ii) anti social behaviour taking place or (iii) a reduction in the number of habitable homes or people living in the area.

As the charge is levied annually in arrears, entry of a site on to the register does not give rise to an immediate levy but instead allows property owners an opportunity to develop the property and apply to the local authority for removal of the property from the vacant site register before the levy becomes due for payment.

The interpretation of what is deemed to constitute a vacant site under the legislation varies between local authorities. Appeals to An Bord Pleanála may be made against the notice of entry on the register, the entry of a site on the register and the demand for payment of the levy. As of 29 November 2018, there had been 122 appeals to An Bord Pleanála against entry on the register, of which 37 were upheld and the entry on the register cancelled [1]. This equates to a successful appeal rate of 30%. Furthermore, 29 of those 122 appeals had yet to be decided at that date. The decisions of An Bord Pleanála have provided some useful guidance on the application of the Act.

Take the recent appeal by the Carmelite Order of a decision by Dun Laoghaire Rathdown County Council (“DLRCC”) – albeit its application is limited to the most devout.

In that case, DLRCC entered a 1.64 hectare meadow in Stillorgan, which was surrounded by a circular path allegedly used by the Carmelite Monastery for exercise and prayer, on the DLRCC’s vacant site register in December 2018 on the basis that:-

The site was in an area zoned for residential development and in which there was a need for housing;
There was minimal evidence that the site was being used for amenity purposes;
The provision of an area "conducive of tranquil reflection, passive thought and allow[ing] for silence and solitude" was not sufficient reason to keep a site vacant.

The Carmelite Order successfully argued that:-

The Order had owned the lands since 1892 – long before the land was zoned for residential use - and retention of the land was important for both the longevity and amenity of the Carmelite Order;
The property was actively used by the Order as both a residence (being part of the grounds of the monastery) and a place of worship, with reflective prayers regularly taking place on the land.

The appeal was upheld by An Bord Pleanála which found that the land was an “integral part” of the monastery complex within which the Carmelite nuns resided and therefore part of the Carmelite nuns’ home. An Bord Pleanála also found that DLRCC had provided insufficient evidence to support its contention that the lands were vacant for in excess of 12 months before placing the property on the vacant site register – relying in part on Google Maps’ aerial photography.

Whilst the specific facts surrounding the Carmelite Order decision are very particular to that property, the decision illustrates the willingness of An Bord Pleanála to reverse the decisions of local authorities to enter sites onto the register.

For further information in relation to this matter, please contact Niamh Greene (Solicitor), Ruth O’Mara (Solicitor), or your usual AMOSS contact.

[1] https://www.oireachtas.ie/en/debates/question/2018-11-29/245/?highlight%5B0%5D=vacant&highlight%5B1%5D=site&highlight%5B2%5D=levy&highlight%5B3%5D=sites&highlight%5B4%5D=vacant&highlight%5B5%5D=site&highlight%5B6%5D=levy#pq-answers-244_245