Introduction
The purpose of the introduction of the vacant site levy was to stimulate the development of housing and to eliminate the hoarding of land. When the levy was increased from 3% to 7% in 2019 it was expected that the real effect of the levy would become evident. However, it appears that one of the main obstacles for collections of the levy was the legislation that introduced it - The Urban Regeneration and Housing Act 2015 (as amended) the Act).
In a previous article, we commented on a case taken by a Cork farmer which highlighted the difficulty a local authority can have in proving certain required characteristics for a site to be considered vacant. This includes, in particular, whether the site is vacant and idle. The Court determined that these words, which have been specifically used in the Act, should be given what the judge considered to be their literal interpretation of “empty or unoccupied” and “not in use”. More recent examples have shown that this difficulty continues for the local authorities.
Earlier in 2021, the owner of a warehouse behind the Vicar Street music venue successfully challenged a levy of €70,000. In this instance the challenge was successfully made through An Bord Pleanála (ABP). ABP had been a respondent in the case of the Cork farmer.
ABP in this case, did not agree with the claim of Dublin City Council, as perhaps they were aware of the costs associated with defending the earlier case. The basis for the decision was that the site had been used in support of the music venue. The owner’s statement that the warehouse was used on a daily basis for unloading and storage of gear for the venue was accepted as evidence of use. The fact that the warehouse was covered in graffiti and from the outside looked unused, was not sufficient evidence to satisfy the criteria in the Act.
Dublin City Council had attempted to inspect the premises without success and, despite contrary claims by the owner, stated that there was no documentary evidence of the warehouse being put to the use claimed. However, ABP found that the owner had provided “a rational explanation” for the use in support of the venue.
Conclusion
Without an amendment to the Act or clear evidence, it remains a high hurdle for local authorities to prove that the criteria as set out in the Act have been met. The subjective nature of the qualifying criteria in the Act and the resultant risk of a costly challenge means that local authorities are unlikely to enforce the provisions of the Act with as much gusto as they otherwise might. This will disappoint those who hoped to see these legislative powers employed to stimulate land usage.
From a landowner’s point of view it is important not only to put their properties to use but to generate and retain evidence of that use. Landowners should also engage with the local authorities in order to avoid the burden of having to bring a challenge.
For more information, contact a member of our Real Estate team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.
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