The Construction Industry Federation (CIF) has taken a High Court challenge to new measures by Dublin City Council requiring developers to make financial contributions to local authority infrastructural developments, including roads, parks and footpaths.
Mr James Macken SC, for the CIF, secured leave yesterday from Mr Justice Kearns to challenge the decision of Dublin City Council of December 1st last to make a Development Contribution Scheme (DCS) under Section 48 of the Planning and Development Act, 2000.
He also secured an order restraining the council from implementing the scheme pending the outcome of the proceedings or further order.
Counsel said the CIF was also objecting to a similar scheme planned by Dún Laoghaire Rathdown County Council and indicated he would apply for a similar restraining order against that council if necessary.
In an affidavit, Mr Liam Kelleher, director general of the CIF, said the federation had welcomed the provision for the introduction of DCS "because it thought the schemes would promote consistency, transparency and predictability".
The CIF was gravely concerned, however, that many of the draft schemes published or passed to date by planning authorities, and in particular the Dublin City Council scheme, did not satisfy those objectives.
He said increased residential and commercial development contributions adopted by the elected members of DCC on December 1st last represented a significant increase on the level of contributions previously required in the majority of areas within the DCC area.
Developers were currently asked, for example, to pay €7,650 per house, apartment or flat unity (this will rise to €11,500) and €49 per square metre for offices, shops, entertainment, public houses and industrial. Mr Macken said that, under Section 48 of the Planning and Development Act 2000, planning authorities were empowered to draw up DCS and to impose conditions in grants of planning permissions requiring payment of contributions in accordance with such schemes.
The contributions were to be for public infrastructure and facilities provided or to be provided by the planning authority in its area, whether or not the facilities would be of benefit to the particular development concerned.
There was no right of appeal to An Bord Pleanála regarding the imposition of such contributions provided they were calculated in accordance with the relevant DCS and nor were such contributions repayable in any circumstances.
His case was that the DCS of Dublin City Council, due to come into effect next March, was invalid and in excess of the powers of the council in that the DCS failed to state adequately or at all the basis for determining the contributions to be paid for public infrastructure or facilities.
This was an error in law in that the Planning and Development Act 2000 required that the basis for determining the contributions to be paid must be stated in the scheme itself.
It was not sufficient for the council to simply identify projects in the different classes of public infrastructure or facilities which were provided or are to be provided.
The council must set out the actual or proposed works and the actual costs of completed projects and actual estimated costs of proposed projects.
The CIF also objected to a provision under which the council might require, in addition to a payment under the scheme, a special contribution for "specific exceptional costs not covered by the scheme" incurred by the local authority for public infrastructure and facilities.
