DubCity Council - Development Contribution Levy - unjust?

S

Sophisto

Guest
Hi,

I have a query relating to DCC's Development Contribution scheme. We have what was originally a 3-bed semi d in South Dublin, which has a large side garden and was previously (before we owned it) extended to the side and back, with an extra bedroom added on upstairs to the side. We have recently been granted PP to demolish the ramshackle extensions and to rebuild the ground floor and upstairs extensions. However, all in, we are demolishing 111sq metres, and doing a new build of exactly 111 sq m. Hence the net new space is 0 sq m.

We then received notification that we must pay €11,231.22 as a development contribution under the new Development Contribution scheme which has come in since January 1st, 2010, to contribute towards the additional strain on services arising out of our development.

My question is twofold:
a) Is this correct? That we need to pay a contribution levy even though we are adding no net new space, and therefore placing no additional strain on water, drainage, parking, footpaths, etc?
b) Is this fair? If not, what are our options for appealing it?

Thanks for your help.
S
 
What did your architect say? Was this not flagged as a real possibility?

I don't see it as unjust or unfair.

mf
 
You may have misunderstood the nature of the levies, the basis for which is set out in law.
Don't assume they are there only to support new work - they support existing work and do not all relate to services but usually encompass amenity space, roads, parklands, etc.
There may be an exemption because of the nil increase in development and if so your architect or area planner can advise you of it - this may be noted on the application form somewhere.
Once these levies are voted through by the elected Members and are based on a reasonable provision of services and support by the Council they are set in stone.
You can indeed appeal them, but you'd better do your homework.
I seem to recall Fingal's levies went extortionate there a few years ago and now maybe Dublin is following suit.
Perhaps I'll have a read of the website again soon or you could post the details here.

FWIW

ONQ

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Okay, here we go

Here is the relevant link in the Development Plan:
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13.4.0 Development Levies
Dublin City Council may, when granting planning
permission, attach conditions requiring the payment
of contribution(s) in respect of public infrastructure
and facilities, benefiting development in its area.
Details of such contributions must be set out in a
Development Contribution Scheme.​

13.5.0Bonds
To ensure the satisfactory completion of development,
including the protection of trees, on a site which has
been the subject of a grant of planning permission,
a bond or cash lodgement may be required until the
development has been satisfactorily completed. The
bond or cash lodgement may be sequestered in part
or in its entirety where the development has not been
satisfactorily completed. Dublin City Council will
determine the amount of such bond or cash lodgement.​

Then, on the City Council's Website:

[broken link removed]

Development Contribution Scheme 2011-2017

Development Contribution Scheme 2010 - 2017
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The Consultants report
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PUBLIC NOTICE
DUBLIN CITY COUNCIL PLANNING & DEVELOPMENT ACTS 2000 - 2006 DEVELOPMENT CONTRIBUTION SCHEME

Notice is hereby given that Dublin City Council at its Monthly Meeting of Council held on 7th December, 2009 made a Development Contribution Scheme in accordance with the provisions of the Planning and Development Acts 2000-2006.

Details of the proposed contributions under the Development Contribution Scheme as made for the administrative area of Dublin City Council are as follows:

Description of Development....Residential

Amount of Contribution.........€156.62 per square metre of residential unit

The rates will be amended on 1st January each year during the life of the Scheme in accordance with the Wholesale Price Index. The commencement of the Scheme becomes effective in respect of all permissions granted from January 1st 2010.

[I have had to reformat this for legibility because of my html coding limitations and I don't know what the previous levies were for your development or if they apply]

==========================================

CALCULATIONS:

#1

Let's say this all applies to your development, that's (111 x 156.62) = €17,384.82


#2
Now, on Page 4 of the Final Scheme it notes

EXEMPTIONS AND REDUCTIONS

7.The following categories of development will be exempted from the requirement to pay development contributions under the Scheme:

The first 40sq metres of extensions to a residential development (subsequent extensions or extensions over and above 40 square meters to be charged at the residential rate per square meter);

Assuming this can be applied to your development, that may work out to be:

((111-40) x 156.62) or (71 x 156.62) = €11,120.02


#3

While your contention that there is no net additional extension appears to be correct, it may founder on the definition of "development".
Demolition and rebuilding may be treated as an assumed exemption but one that is not explicitly stated under the legislation.

That being said, you may just be dealing with someone following the rules, as opposed to taking a common-sense view.
Talk to your planning officer first and better still, your building professional who lodged your permission.

If you don't have one, it falls on your shoulders to appoint one or do the deed yourself.
This may need legal input from a solicitor well versed in planning legislation.

HTH

ONQ.

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Thanks ONQ.

Yes, I suppose it just seems to me to contravene the laws of natural justice. We currently have a four bed house, and when finished our 'development', we will still have a 4-bed house, of exactly same size, albeit a better built, better insulated and generally more efficient structure than before. We won't place additional drain on any local services; we won't be able to accommodate more people than before, and so won't be utilising resources such as parks, amenities or roads any more than previously.

I fully understand the requirement to apply a development levy to new builds or extensions that would have a significant impact on services; however, applying it in our situation seems to me to be functioning as a generic tax applied simply because we had to go through the planning process. We will have no more impact on services than someone who painted their house, and possibly less of an impact than someone who builds an extension that provides additional floor space below 40m sq.

I am keen to know if anyone else has challenged this and their outcome, and in general what the public consensus is on the rightfulness of our case.

Thanks again for your thoughts.
 
Sophisto said:
My question is twofold:
a) Is this correct? That we need to pay a contribution levy even though we are adding no net new space, and therefore placing no additional strain on water, drainage, parking, footpaths, etc?
b) Is this fair? If not, what are our options for appealing it?
Click to expand...


It does seem perverse and unfair.
The 'spirit' of the Contribution Scheme relates to raising funds to support various local services and amenities where 'development' would result in an increased demand for them.
This particular case apparently relates to the reconstruction of part of an existing house with refurbished and upgraded accommodation of an identical area.
It would seem logical therefore that there will be no additional loading placed on any local services (I include amenity space, roads, parklands, etc.).
What is particularly perverse is that the proposed replacement structure will inevitably be to much higher construction standards than what it will replace, therefore reducing emission of CO2, fuel usage, water run-off and water wastage.
This type of 'Development' should be ENCOURAGED NOT PENIALISED.

It appears that in your case a levy has been applied in strict accordance with a set of rules. These rules (Contribution Scheme) do not appear to have foreseen the eventuality of a homeowner wishing to rebuild part of their home in order to upgrade substandard construction.
This is an omission, and one that should have been addressed through the application of some discretion on the part of the person(s) considering the application. Unfortunately, discretion is clearly not applied in such cases for various reasons: The person(s) involved may have no incentive or authority, the rules are blindly applied, and the Council would forgo revenue.
This issue could have been addressed by you or your architect (or agent) prior to lodgment of a planning application. If you engaged a professional person, they should have advised you of this levy and how much it would be. Ideally there should have been a submission to accompany your planning application setting out a comprehensive case as to why your rebuilding proposal should not attract a Development Levy.

DCC's Contribution Scheme notes under Section 9, Note 3 that " New extensions to existing developments, including domestic extensions, will be charged at the above rates also". (€156.52 per Sqm).
It is understandable that an 'Extension' should be charged as it has the potential to give rise to additional usage of local services.
The omission of any reference to 'Reconstruction / Upgrading / Rebuilding / Improvements" which do not result in an increase in floor area and would not result in increased use of services has resulted in your case being unfairly considered as an extension to which normal levies apply.

To highlight the results of this omission further, consider the following:
1- The conversion of a domestic garage attached to the main house having a floor area below 40Sqm is Exempted Development. This will not require planning; will not attract a Development Levy yet it could result in an additional bedroom to house a lodger or extended family member. This intensification could result in increased use of many public services.
2- A domestic extension to the rear of a house complying with all exempted development requirements will attract no levy but could result in additional use of public services.
Yet
3-You could have applied for permission to demolish 111Sqm of substandard construction and reconstruct say 80Sqm of upgraded space and then be levied (€156.62x80)-(€156.62x40) = €6,264.80 for reducing the size of your house, improving its environmental performance, and in theory, decreasing the demand on public services!

If you had the stomach & time for it, a fresh application with some minor alterations and a comprehensive submission addressing the levy might give an opportunity to have this issue addressed, but the outcome could not be predicted. You could discuss this with the planner beforehand.

Unfortunately, there is no point talking to the Case Planner about the current permission as the Manager's Order can't be altered & you don't have any bargaining power - they won't loose any important 'planning gains' if your project does not proceed. You can appeal to An Bord Plenala on the basis that the Contribution Scheme has been incorrectly applied (although this more usually would relate to calculation errors). You will need your Architect or designer to make a very strong submission of your case and of course pay the required fee. And then wait...

As an aside, we have recently negotiated a 50% reduction to a Development Contribution attached to a scheme involving a protected structure. This was not done through the Appeals Process, but through direct submission and meeting with the local authority involved. In this case the local authority did run the risk of loosing the many planning gains associated with a high-profile commercial development (jobs, rates, renovation of important protected structure, etc.). In the case of a domestic renovation you do not have this bargaining position. The argument we made was that the Contribution Scheme neglected to include any provision for an exemption or reduction to the levy for Protected Structures. This is something most other Councils recognize as an effective means of encouraging the renovation of our built heritage.
- A similar form of argument can and should be made for the replacement and upgrading (not extension) of existing substandard construction - but this really would have to made at Planning Application Stage.

DBK100 - MESH Architects
 
The answers by ONQ and DBK100 just go to show the importance of competent persons through all stages of construction works.
 
I think DBK100's worked examples are excellent reductio ad absurdem arguments to lay before a solicitor.

I would still have a chat with the local authority/senior planning officer to see if this was a simple cock up.
There may be routes under which it could be rectified apart from a planning permission should they agree with your assessment.

If not, the levy is a serious burden and a solicitor might only cost a grand or two to give you advice on this for negotiation purposes with the Council.

In summary:

#1
If you're within the appeal period you could still appeal the levy as unfair, unreasonable, arbitrary, illogical and perverse - I advise you to note those particular words and use them, making the case there is no nett additional development to be levied.

#2
This issue might be possibly dealt through the local authority outside the normal planning process.

#3
Talk to a good solicitor well versed in planning law.

ONQ.

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Another issue raised by the OP's situation is that we have Planning Authorities determining Planning Applications supposedly on Planning Matters alone,
but
The very same Planning Authorities are assessing and subsequently collecting financial Development Contributions related to the very same applications.

The implications are clear:
Inappropriate rezoning and granting of absurdly high density and amenity-deprived housing schemes in times of plenty,
and
Penal levies rigidly applied to inappropriate cases by cash-strapped Authorities in times of dearth.
...Just my opinion!

Maybe an independent and central "Contribution" Collector is called for who can disencumber Planning Authorities from any potential accusation of partiality is required? The funds could then be apportioned between the Local Authorities according to a suitably fair formula, - and of course with a right to appeal!


If you are to appeal to an Bord Pleanala you will have to demonstrate how the levy has been incorrectly applied. In this instance the figures have been correctly calculated, but the case you need to make is that it is incorrect to apply the levy in relation to the rebuilding and upgrading of existing domestic accommodation. Do use the adjectives ONQ lists, but in a supporting role, -ground your argument in facts. If the inspector and Board were to find in your favour they would most likely be setting a precedent and so the facts are central. Don't be surprised if DCC write to the Board in defence of their position.
 
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Thanks guys, those posts are very helpful in providing a basis for a defence of our position.

We are still within the appeals period, but would not be keen to take an appeal to the Board if we could avoid it. We just don't have the stomach for the possible additional delay that an appeal could add - 4-6 months I believe? Also, it has financial implications for us, as the house is currently in an unlive-able condition, and so we are renting while we wait to renovate it. So the cumulative costs of paying both rent and mortgage for up to an extra 6 months would wipeout most of the gain to be made from having the contribution levy reversed.

I'm thinking maybe we'll try to address it through the planning officer directly, if no joy with the Council then approach local representatives, TDs. Any thoughts of the possibility of success with this approach?
 
+1 what DBK100 has said about grounding my "adjectives" :) in a reasoned argument based on planning issues - I jumped ahead to the court case!

Several people found problems in Dublin City Council due to punctilious processing of applications by planning officers back in 2002-2004 after the new regulations came in.

I was once told my client's house address was incorrect as a reason for returning an application as invalid.
I duly produced a copy of Thom's directory listing the house number and pointed out that this was the third application and that I was going to take legal action to recover loss of earnings.
I had to re-apply for form's sake, because there was no way to accept the aplication as it was out of time, but the planning office paid for the public notices on the final application and we got a clean permission.

The other two referrals on that job were because the applications were deemed invalid for things like:

* not putting a north point on the OS Map and in one case
* not providing a rear elevation in context

The former was rectified in law after lobbying by me and others - the OS Map was out source for north points [north to the top] and now a little arrow get printed on each by the OS Office.
The latter they agreed to omit except for what could be seen from the public domain to the rear lane - the accepted I had no right to survey people's privsate rear open spaces/rear elevations and ifringe their privacy.

But the attitude of the plannerd was what caused difficulty at the time, claiming as they still do that they cannot discuss an application with you during the planning process.
Comments from our office that the application process hasn't really begun while validation is continuing have so far fallen on deaf years, but now I have a bit of free time on my hands I might press this case also.

I suspect that with your application officialdom has taken a wrong turning and you will be intrumental in returning them to the desired course - service to the electorate.

ONQ.
 
Sophisto, you could go into Dublin City Council offices planning section. It is incredibly quiet at the moment with the lack of planning or construction activity, but the two guys on the desk will probably be grateful for the company and they are always very helpful, a fountain of knowledge.

I would follow it up by either you or your Architect telephoning the Planner, as long as he / she will speak to you during the Appeal period - they don't always.

This will clarify your position, as you don't have much time.
 
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