High Court challenges An Bord Pleanála decision to classify six-acre Kildare site as vacant – making it subject to 7pc levy

An Bord Pleanala

11 April 2022

A High Court challenge has been launched against An Bord Pleanála’s decision to classify a six-acre site in Co Kildare as being vacant lands.

The land in question is located at Rathbride Road in Kildare, Co Kildare, and forms part of the estate of the late landowner and developer Joseph Burke.

Mr Burke, of Hanlon’s Farm, Maddenstown, the Curragh, Co Kildare, died in 2015.

His estate is being administered by solicitor Tom Simpson, who opposed a proposal by Kildare County Council in 2019 to designate the land in question as “vacant” and enter them on its vacant site register.

The owners of lands designated as vacant, and placed on the register, can face annual levies of up to 7pc of the land’s value.

Mr Simpson argued that the lands did not meet the legal criteria to allow the council to classify the lands as being vacant.

His grounds included that the lands were not suitable for housing development at that time.

There was no evidence of any adverse effect arising out of the condition of the lands, it was also argued.

The lands in question were never zoned as being residential at the relevant time, as the relevant local development plan had expired and remain as undeveloped agricultural land, it was claimed.

It was further submitted that the lands are not serviced by necessary public infrastructure to make them capable of residential development.

However, the council decided that the site should be deemed vacant.

That decision was appealed to the board in 2021.

In its decision made on February 16 last, the board confirmed the council’s decision to enter the lands on the register of vacant lands.

Mr Simpson claims that the decision amounts to a fundamental error of law and fact by the board.

As a result, the administrator has brought High Court judicial review proceedings against the board, Kildare Co Council, Ireland and the Attorney General.

Represented by Niall Handy BL, instructed by LK Shields Solicitors, Mr Simpson seeks various reliefs including an order quashing the board’s decision that deemed the lands that are the subject of the proceedings to be “a vacant site.”

The plaintiff also seeks various declarations including that when designating the lands as vacant, the board breached the rules of natural and constitutional justice, denied the administrator fair procedures, took irrelevant matters into consideration, and acted outside of its powers.

Mr Simpson further seeks an order directing Kildare County Council to remove the lands from the vacant site register.

The case was briefly mentioned before Mr Justice Michael Twomey at Monday’s vacation sitting of the High Court.

The judge adjourned the matter to a date in May.

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