Kilkenny landowner wins appeal against vacant sites levy charge

Hebron Ventures Limited, owner of a site of land on Hebron Road in Kilkenny city that is now occupied by a newly-built housing development, has won an An Bord Pleanála appeal against a previously issued vacant sites levy charge.

This appeal was made against a Section 15 Notice of Demand for Payment of Vacant Site Levy issued by Kilkenny County Council for the year 2019 amounting to €56,350.

Under the Urban Regeneration and Housing Act 2015, the owner of a site who receives a demand for payment of a vacant site levy under section 15, may appeal against the demand to An Bord Pleanála.

The appellant submitted an appeal to the Board against the decision of Kilkenny County Council to enter the subject site on the Register and charge the levy.

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The appellant submitted a response to the planning authority’s submission citing that though ownership changed in February 2019, at no point did the owner delay developing the site for housing.

The An Bord Pleanála Inspector's Report noted that the planning authority 'rightly demanded a charge for 2019', adding that in that same year planning permission was sought for a housing development.

"Permission was eventually secured, and development commenced. A charge for 2020 onwards has not been sought by the planning authority. It is accurate to say that no actual construction activity or other use took place during 2019 and neither the applicant nor planning authority dispute this fact. The site was vacant during 2019 and so the charge can be demanded for that year."

The other part of a section 18 appeal, is the role of the Board, outlined by section 18(3) as follows:

"Where the Board determines that a site was no longer a vacant site on 1 January in the year concerned, or is no longer a vacant site on the date on which the appeal under this section is made, it shall give written notice to the planning authority who shall cancel the entry on the register in respect of that site and shall cancel the demand made in respect of that year."

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Referencing this section, the Inspector notes: "Dispensing with the first element, that of the 1 January in the year concerned (2019), as above, I do not consider that matters changed for the site to avoid the levy and remove the site from the register. However, the second part of section 18(3) refers to the date on which the appeal was made, and this is relevant.

"In my view it allows the Board to consider matters that pertain to the site up until the day the appeal was made and in this case that would be the 4 June 2021. It is evident from the information on file that the project commenced in August 2020 and during 2021, a significant amount of works had occurred on the site to progress the planning permission. These works have continued to occur on site, as an almost complete housing development was observed on the day of my site visit.

"I am satisfied that even though the site may have been a vacant site as of the 1 January 2019 it was no longer a vacant site on the date on which the appeal was made, 4 June 2021. This would accord with the spirit of the 2015 Act as articulated by circular letter that the levy is intended to act as a site activation and release mechanism, to incentivise the development of vacant or idle sites in urban areas identified by planning authorities as “regeneration land” or “residential land”, with a view to bringing such sites into beneficial use."

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The recommendation from the Inspector was that in accordance with Section 18 (3) of the Urban Regeneration and Housing Act 2015 (as amended), the Board 'should cancel the Notice of Demand for Payment of Vacant Site Levy'.

An Bord Pleanála, taking factors such as these into account, cancelled the Notice of Demand for Payment of the Vacant Site Levy.