Farm Ireland
Independent.ie

Sunday 20 May 2018

Advice: Planners and farmers look set for showdown on Vacant Site levy

Land on the outskirts of urban areas that is being used for farming could be subject to the Vacant Site levy if it is zoned for residential development
Land on the outskirts of urban areas that is being used for farming could be subject to the Vacant Site levy if it is zoned for residential development

Theresa Murphy

For many farming families one of the biggest difficulties with housing has been securing planning permission on or near the family farm. However, a bigger issue has reared its head in the application of the Vacant Site levy which threatens many farmers who own land in areas which are zoned residential or regeneration land.

Last month, Kilkenny County Council decided that land belonging to three farmers was subject to the levy which is billed at 3pc of land value. The levy rises to 7pc in the second year if a site remains vacant.

The Kilkenny farmers' lands were zoned for development but the farmers have never received any offers for the land from developers or the local authority.

IFA president Joe Healy described the potential move by local authorities to apply the levy on farmland as "tantamount to extortion".

For many people living in rural Ireland the Vacant Site levy was not a tax that they envisaged would affect them, when it was introduced in the Urban Regeneration and Housing Act 2015.

Nor did it cause any real stir when the rate of the tax was increased in budget 2018.

It now seems that lands which have traditionally been - and continue to be - exclusively used for farming may be subject to this tax where it falls within the land zoned residential in development or local area plans.

The Vacant Site levy is payable on demand within two months, though arrangements may be made for the payment of the levy by the owner of the site by instalments. If not paid, the levy shall be recoverable through the courts.

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Determining market value

Under the 2015 Act the market value of a vacant site is calculated by estimating the value that the land would achieve if it was sold on the open market.

The 'market value' which is applied to the land can be appealed within 28 days.

What land is affected?

The 2015 Act which established this tax set out that a planning authority should include a description and map of any land which was in its opinion a vacant site for a period of 12 months before that land would form part of the register of vacant sites.

This register should be kept at the offices of the planning authority and available on its website.

Register & appeals process

Before entering a site on the register the planning authority must give written notice to the landowner setting out the reasons why it proposes to include the lands in the registry of vacant sites.

The landowner then has 28 days to make submissions as to why it should not be included in the register (if this is their view). It is essential that these submissions are made to the planning authority where land is used for agricultural purposes.

These submissions should include details of the EU payments received and/or claimed in respect of these lands and details of the agricultural use to which it was put during the 12 months prior to the inclusion of the site on the register.

When submissions are made within this 28-day period the local authority must consider them.

If it concludes that the site was a vacant site for the duration of the 12 months concerned and continues to be a vacant site, it shall enter the site on the register and this land will the liable for the tax.

If it is entered on the vacant site register, again, the planning authority must notify the landowner in writing.

If the landowner does not engage the appeals process within the 28 days and finds that the only legal avenue open to them is a judicial review application before the High Court, they may face a risk in relation to the costs of the legal proceedings for failing to use the appeals process first.

The burden of showing that the land 'was not vacant or idle' falls on the landowner.

This means that the submissions which the landowner makes are key to preventing the inclusion of the lands on the register.

Where the board determines on appeal that a site was not vacant or idle for the duration of the 12 months concerned or was no longer a vacant site on the date on which the site was entered on the register, it must notify the planning authority

Where the owner of a vacant site appeals against the entry of a site on the register, the entry will not take effect until the appeal is finally determined.

The 2015 Act places an obligation on landowners whose lands have been included on the register to notify the planning authority if the site becomes no longer vacant/idle.

The 'idle' test and the Department's instructions to local authorities

The legislation which established  the Vacant Site tax clearly set out  that it was to be applied to lands  which are vacant or idle during the year prior to proposed inclusion on  the register.

Farmers and landowners whose land may be affected by a local area plan/development plan and is zoned for purposes of development other than agriculture should maintain annual records in relation to the land usage.

It is my view that lands which are utilised for agricultural purposes should not be considered idle if the landowner can show that the land is used in the course of the farming enterprise. For example if a farmer can show that a Basic Payment scheme application has been made on the land which requires 'agricultural activity' and/or 'maintaining land in GAEC (good agricultural and environmental condition)'.

It is further unlikely that it should be considered idle as the Department of Agriculture will have made a determination in relation to agricultural activity and/GAEC.

However, this has not yet been tested in the courts.

INSTRUCTIONS

The Department of Housing issued instructions to planning authorities on applying the levy.

For example, Kilkenny County Council's Vacant Sites Register contains a total of 29 entries, and two these are in agricultural use.

Both of these sites are subject to an appeal to An Bord Planala as a result of their inclusion in the register.

Kilkenny County Council told the Farming Independent: "In accordance with the Department's circular letter to local authorities, where sites may currently or on an interim basis have an agricultural use, given the purpose of the levy, particularly in the context of the provision of housing… in such cases the levy may be applied, as the site concerned is not being used for the purpose for which it is zoned."

The Department of Housing stated: "It's a matter for a local authority to make an assessment in this regard for any particular site having regard to the need for housing in the area and the suitability of the site for housing in terms of being already served by necessary supporting infrastructure.

"The intention is to issue another circular to LA's (local authorities) on implementation of the levy, get updates on progress and provide any guidance on general matters arising around implementation that may be required."

This raises a number of potential complex legal questions including whether this may be considered to have an effect on the property rights of the landowners.

It also raises questions in relation to what tests the planning authorities have carried out as to the need for housing in the areas where the levies have been applied to agricultural lands.

Theresa Murphy is a barrister based in Ardrahan, Co Galway.


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