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Portmarnock Real Estate Developments Ltd and St Marnock's II Designated Activity Company v An Coimisiun Pleanala
Factual and Procedural Background
These related judicial-review proceedings concern approximately 24.5 hectares of residentially zoned land in The City, which the Respondent determined satisfied the criteria for Residential Zoned Land Tax (“RZLT”). The central factual dispute concerned whether the land had access to the necessary public infrastructure, particularly wastewater infrastructure. [1][2][3][4]
The local authority included the land on successive RZLT maps. The Applicants challenged the Respondent’s decisions confirming inclusion on the first and second annual revised maps. The Respondent conceded that certiorari was appropriate on the limited ground that it had wrongly stated that the permanent pumping station would be constructed entirely on public land without requiring third-party consents. [5][6][7][8]
The Court nevertheless considered whether the proceedings were moot and addressed the statutory issues because they remained material to any fresh decisions. [9][10][11][12]
Legal Issues Presented
- Whether the proceedings were moot despite the Respondent’s limited concession of certiorari. [13][9]
- Whether the Respondent assessed the land by reference to the correct dates: 1 January 2024 and 1 January 2025, and properly reconsidered when the land first came within the RZLT. [14][15][16]
- Whether fair procedures were breached by the Applicants’ alleged misunderstanding of the relevant assessment date. [17][18]
- Whether developer-provided infrastructure could satisfy the requirement for access to public infrastructure under section 653B(b) of the Taxes Consolidation Act 1997. [19][20]
- Whether future or incomplete infrastructure could be considered in determining whether land was “in scope”. [21][22]
- Whether the Respondent had to distinguish between different phases of the land and assess capacity in the drainage network, rather than only at the wastewater treatment plant. [23][24][25]
Arguments of the Parties
Applicants’ Arguments
- The land was not “in scope” because the necessary public wastewater infrastructure was absent. [4][26]
- The Local Area Plan’s phasing requirements excluded the land from the tax until the plan expired. [27][28]
- The Respondent should have assessed the land as at the statutory dates and should not have relied on later events or future infrastructure. [29][16]
- Developer-led infrastructure could not constitute the public infrastructure required by section 653B(b). [30][20]
- The phrase “reasonable to consider” required objective evidence, not the exercise of an unreviewable discretion. [31][32]
Respondent’s Arguments
- The proceedings were moot because certiorari had been conceded and the matters could be remitted for fresh determination. [8][33]
- The Applicants had not specifically appealed the date on which the land first came within scope. [34]
- Section 653B(b) conferred a discretionary power reviewable only on the limited grounds identified in O’Keeffe v. An Bord Pleanála. [30]
- Future infrastructure and the availability of treatment capacity could support a finding that the land was serviced. [22][35]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Lofinmakin v. Minister for Justice [2013] IESC 49, [2014] 4 I.R. 274 | Mootness and the court’s discretion to determine a moot case in the interests of justice. | Distinguished because the present cases concerned extant appeals requiring fresh decisions; alternatively, the interests of justice favoured determination. [36][37][38][12] |
| M.A. v. Minister for Justice | Principles governing an application to revoke a deportation order. | Referred to in explaining why the decision in Lofinmakin became academic. [39][37] |
| P.O. v. Minister for Justice and Equality [2015] IESC 5, [2015] 3 I.R. 164 | Approval of the principles concerning revocation of a deportation order. | Used in the comparison with Lofinmakin. [40][37] |
| O’Brien v. Personal Injuries Assessment Board (No. 2) [2006] IESC 62, [2007] 1 I.R. 328 | Mootness where the underlying issue no longer arises. | Distinguished because the present appeals still required fresh decisions. [41][10] |
| Right to Know CLG v. Commissioner for Environmental Information [2020] IEHC 392, [2023] 1 I.R. 793 | Mootness where the requested documents had already been supplied. | Distinguished because remittal remained a live possibility here. [42][10] |
| O’Flynn Construction Limited v. An Bord Pleanála [2024] IEHC 362 | Mootness where the challenged map no longer had legal effect or generated tax liability. | Distinguished because the challenged revised maps continued to create tax consequences and fresh decisions were intended. [43][44][45] |
| Goold v. Collins [2004] IESC 38 | An appeal is moot only where no controversy affecting or potentially affecting the parties’ rights remains; the court may nevertheless exercise discretion to hear it. | Supported the conclusion that the statutory issues potentially affected the Applicants’ rights. [46][47][11][48] |
| Borowski v. Canada (Attorney General) [1989] 1 S.C.R. 342 | Definition and treatment of moot appeals. | Approved and applied through Goold. [47][49][11] |
| Ballyboden TTG v. ABP [2024] IESC 4 | The supervisory and discretionary nature of judicial-review remedies. | Referred to when explaining that the Court had to consider whether certiorari was appropriate. [50] |
| Bookfinders Limited v. Revenue Commissioners [2020] IESC 60 | Principles of statutory interpretation applicable to taxation provisions. | Supported a certain and non-arbitrary interpretation of the RZLT legislation. [51] |
| Perrigo Pharma International DAC v. McNamara [2020] IEHC 552 | Plain meaning, statutory context, purposive interpretation, avoidance of surplusage, and strict construction of ambiguous tax provisions. | Supported requiring infrastructure to be available on the relevant date. [51][52][53] |
| Dunnes Stores v. Revenue Commissioners [2019] IESC 50 | Context is critical in statutory interpretation. | Quoted within the principles adopted in Perrigo. [54][55] |
| O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 | Limited judicial review of discretionary decision-making. | Rejected as the applicable approach because section 653B(b) establishes taxation criteria rather than a discretionary planning power. [30][32] |
| Joyce-Kemper v. An Bord Pleanála, H.JR.2024.0001079 | Environmental challenge to permission for the permanent pumping station. | Its pendency demonstrated that the proposed infrastructure was not certain to be built by the relevant dates. [56][57][58] |
Court's Reasoning and Analysis
The Court held that the proceedings were not moot. The Respondent’s concession resolved only one limited error and did not resolve the disputed interpretation of Part 22A, including the relevant dates and the treatment of developer-led infrastructure. Those issues remained material to any fresh decision. [9][59][10][11]
The Court held that the first annual revised map required assessment of whether the land was “in scope” as at 1 January 2024, while the second required assessment as at 1 January 2025. Events after those dates could not be considered, because the statutory timetable and fair procedures required the assessment date to be fixed before submissions were made. [16][60][61]
The 2024 decision was unlawful because it relied on later planning permission and later works, failed to reconsider when the land first came within scope, and failed to address the statutory phasing exclusion. [62][63][64][65]
The 2025 decision was also unlawful because it relied on later information and on a pumping station that was neither constructed nor available on 1 January 2025. Future availability could not satisfy the statutory criteria. [66][67][68][69]
The Court interpreted section 653B(b) as requiring objective evidence that the necessary services were available on the relevant date. The provision did not confer a broad discretionary power. [30][32]
Only public infrastructure was relevant. Infrastructure constructed by the developer, including the interim pumping station, could not satisfy section 653B(b). The land also required actual access or a legal right to connect to the necessary infrastructure, together with sufficient capacity throughout the relevant wastewater network, not merely at the treatment plant. [20][70][71][72]
Holding and Implications
THE PROCEEDINGS WERE NOT MOOT, AND THE IMPUGNED DECISIONS WERE UNLAWFUL IN SEVERAL MATERIAL RESPECTS. The Court found that both decisions used the wrong assessment dates, that the 2024 decision failed to reconsider the first date of scope and the phasing exclusion, and that the Respondent unlawfully relied on future, developer-led, and insufficiently assessed infrastructure. [73][74][75]
The Court did not itself determine the Applicants’ final RZLT liability. The precise orders, including any remittal and declarations, were deferred for further submissions. [76][77][78]
The direct consequence is that the Respondent must reconsider the appeals in accordance with the Court’s findings. The decision establishes the stated interpretation of section 653B(b) for that reconsideration; the opinion does not state any further broader consequence. [79][80][81]
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