O'Flynn Construction Company UnLtd Company v An Bord Pleanala (Approved)

Factual and Procedural Background

This case concerns an application by Defendant to strike out the Applicant's challenge to a decision dated 17 August 2023, on the grounds that the proceedings have become moot. The Applicant is a landowner whose lands were included in a Residential Zoned Land Tax ("RZLT") map issued under legislation introduced by the Finance Act 2021. The tax was designed to incentivise development of suitably zoned and serviced land by imposing a 3% tax on site value for lands deemed "in scope".

The process required local authorities to publish draft maps indicating lands subject to the tax, allow submissions by landowners, issue determinations, and allow appeals to Defendant, who then prepared final maps. The initial timeline required publication of final maps by 1 December 2023, with tax liability arising from 1 February 2024.

The Applicant's lands, zoned for strategic development and regeneration with residential use, were included in the draft map. The Applicant made submissions to have their lands removed, but the local authority determined part of the lands remained in scope. The Applicant appealed to Defendant, who refused the appeal on 17 August 2023.

The Applicant sought judicial review of Defendant's decision in October 2023 and was granted leave. Defendant then sought to strike out the proceedings as moot, citing amendments in the Finance (No. 2) Act 2023 which delayed the timeline and effectively reset the mapping process, allowing fresh submissions and appeals for a new final map to be published by 31 January 2025, with tax liability arising 1 February 2025.

Legal Issues Presented

1. Whether the Applicant's judicial review proceedings challenging Defendant's 17 August 2023 decision have become moot due to legislative amendments resetting the RZLT mapping process.
2. Whether exceptions to the mootness doctrine apply to allow continuation of the proceedings despite mootness.
3. The proper application of the mootness doctrine and the court's discretion to hear moot cases in the context of statutory tax liability and procedural rights.

Arguments of the Parties

Respondent's Arguments

• The proceedings are moot because the 2023 map and related decisions have been superseded by the Finance (No. 2) Act 2023, which resets the mapping process and delays tax liability to 2025.
• The Applicant has the right to make fresh submissions on the new draft map and appeal any adverse determinations, effectively restarting the process.
• Any dispute about the 2023 map is now redundant as it has no legal effect; liability will only arise from the 2024/2025 map.
• The Applicant can challenge any adverse decision on the new map by fresh judicial review proceedings and obtain a deferral of tax payment pending such proceedings.
• Therefore, the current proceedings lack a live controversy and should be struck out as moot.

Applicant's Arguments

• The core issue—the status of the lands as of 1 January 2022—is fixed and unchanged, so the dispute remains live.
• The submissions made for the 2024 map are nearly identical to those previously made, so the same adverse decisions are likely.
• Section 653K of the Act requires local authorities to reflect prior determinations when revising maps, effectively binding them to previous decisions.
• Any appeal against the new determination would raise the same issues as before, and Defendant has not conceded any points, indicating it would uphold its prior decision.
• Proceeding with the judicial review now avoids delay and expense by resolving issues without waiting for the new process to conclude.
• The 2023 map remains relevant because annual revisions of maps are based on it, so it has continuing legal significance.
• Even if the case is moot, the court has discretion to allow it to proceed where it serves a useful purpose, especially given related cases on similar legal issues.
• Some grounds of challenge are of general public importance, such as the interpretation of "vacant and idle" land, warranting continuation.
• The inclusion of the lands in the 2023 map has adversely affected the financial value of the lands, causing prejudice.
• The statutory deferral of tax payment requires judicial review proceedings to be initiated within a short window, placing the Applicant in jeopardy if forced to wait.
• Therefore, the proceedings are not moot or fall within exceptions to mootness allowing continuation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
O'Brien v Personal Injuries Assessment Board (No. 2) [2007] 1 IR 328	Exception to mootness where issue remains live for statutory body in future cases.	Referenced as an example where moot appeal was allowed due to ongoing public importance.
Irwin v Deasy [2010] IESC 35	General principles on mootness and exceptions for public importance.	Used to illustrate exceptions to mootness rule.
Lofinmakin v Minister for Justice Equality and Law Reform [2013] 4 IR 274	Comprehensive statement of mootness doctrine and court discretion to hear moot cases.	Primary authority for legal principles on mootness and exceptions applied by the court.
Whelan v Governor of Mountjoy Prison [2015] IEHC 273	Allowing moot cases to proceed if they serve a useful purpose and involve issues likely to recur.	Referenced in discussion of exceptions to mootness.
Friends of the Irish Environment v Minister for Agriculture Food and the Marine [2022] IEHC 64	Consideration of mootness exceptions, especially time-limited measures evading review.	Applied to assess whether case is immune from review and exceptions to mootness.
Goold v Collins [2004] IESC 38	Doctrine of “capable of repetition, yet evading review” as exception to mootness.	Used to analyse whether the Applicant’s case fits this exception.
Right to Know CLG v Commissioner for Environmental Information [2020] IEHC 392	Summary of mootness principles and discretion to hear moot cases.	Quoted for succinct statement of mootness principles and discretion.
Kovacs v Governor of Mountjoy Women's Prison [2016] IECA 108	Reluctance to hear moot appeals except in exceptional circumstances.	Referenced regarding discretion to hear moot cases only in exceptional cases.

Court's Reasoning and Analysis

The court began by confirming the applicable legal principles on mootness as extensively set out in Lofinmakin and related cases, emphasizing that a case is moot when no practical effect can be achieved by a decision due to disappearance of the live controversy. The court acknowledged that exceptions exist where the issue remains significant for future statutory functions, involves points of exceptional public importance, or is a test case with multiple related proceedings.

The court found that the legislative amendments in the Finance (No. 2) Act 2023 effectively superseded the 2023 map and related decisions, resetting the mapping process and allowing fresh submissions and appeals. This rendered the Applicant’s challenge to the 17 August 2023 decision moot because the decision no longer had legal effect.

The court rejected the Applicant’s argument that the submissions and determinations would inevitably be the same, noting that the Applicant's new submissions would be made with knowledge of prior decisions and could address previous deficiencies. The court held that the process underway was not a mere revision but a fresh mapping exercise, so the local authority was not bound by its earlier determinations.

The court also found that the Applicant retained full procedural rights to appeal any adverse determinations on the new map to Defendant and to challenge those decisions by judicial review, with statutory provisions allowing deferral of tax payment pending such proceedings. Thus, the Applicant's rights were preserved and no meaningful prejudice would arise from striking out the current proceedings.

The court was not persuaded that the issues raised were of exceptional public importance warranting continuation of moot proceedings, as the Applicant's issues were largely site-specific and the general issues could await a case with a concrete dispute. The court distinguished this case from others where mootness exceptions were applied due to broad public impact or settled substantive issues.

Accordingly, the court concluded that the proceedings had become moot, did not fall within any exception to the mootness rule, and should be dismissed.

Holding and Implications

The court’s final decision was to DISMISS the Applicant’s judicial review proceedings on the grounds that they have become moot.

The direct effect of this ruling is that the challenge to the Defendant’s 17 August 2023 decision is struck out as legally redundant due to intervening legislative changes resetting the RZLT mapping process. The Applicant retains the right to participate in the new process, including making submissions, appealing determinations, and seeking judicial review of any adverse decisions arising from the 2024/2025 map. The court also found that the Applicant can avail of statutory deferral of tax payment pending such review, preventing financial prejudice.

No new legal precedent was established beyond the application of established mootness principles to the facts of this case. The ruling underscores the court’s reluctance to entertain challenges to decisions overtaken by subsequent legislative or procedural developments where effective remedies remain available through fresh proceedings.