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Compulsory Purchase Order

In order for each of us to have access to infrastructure i.e. road, rail etc in Ireland, it is sometimes necessary that local authorities acquire land through the medium of Compulsory Purchase Orders (CPO).

Local Authorities use their powers of compulsory acquisition of land through CPOs which are statutory in nature to ensure that all necessary lands are available when construction takes place.

CPOs exist in many countries and not just Ireland. The Land Clauses Consolidation Act, 1845 is the foundation legislation in relation to CPOs. This law seeks to balance the right of the common good i.e. infrastructure and the right of individuals to own their own land. The Irish Constitution of Ireland, 1937 recognises and appreciates that people have a right to own their own land however this must also be balanced in a social context.

Before a CPO is proposed, for example motorway construction, the local authority will engage in extensive discussions with members of the public and designs are carried out to ascertain exact road markings. At this point, the relevant land owners are identified as and when the CPO is being made.

When a CPO has been made, the Local Authority publishes the Order in at least one newspaper in the area affected. Individual land owners are also contacted and maps and schedules are displayed in the offices of the local authority for a period of not less than one month. People who have an interest in the land have a period of not less than two weeks after the end of the period of inspection to object to an Bord Pleanála (The Board) The Board may approve / refuse the scheme the subject of the CPO depending upon oral hearings where objections have been made.

If the Board approve the CPO, their decision is once again published in at least one newspaper in the area where the land is affected by the CPO. The CPO scheme then becomes operational three weeks following publication of the notice and the local authority can then start to acquire the lands upon which to develop / construct the proposed scheme.

Remedies for land owners

When the scheme has been approved, the local authority (within eighteen months of the scheme becoming operative) serves a Notice to Treat on the affected land owners. A Notice to Treat is effectively compensation payable to the land owner by the local authority to acquire the land. This compensation is negotiated between valuers for land owners and the valuers for the local authorities.

Where the land owner and the local authority cannot agree on the level of compensation, the law provides for independent arbitration where an arbitrator, determines the amount of compensation payable having listened to both parties. The decision of the arbitrator is binding on both parties.

Injurious Effect with regard to compensation / CPOs

Injurious affection entitles a landowner to be compensated for the value of the property taken for the effects (if any) of severance and for injurious affection of retained lands by anticipated use by others of the lands acquired from landowners.

Section 63 of the Lands Clauses Consolidation Act 1845 provides: 'In estimating the purchase money or compensation to be paid by the promoters of the undertaking, in any of the cases aforesaid, regard shall be had by the justices, arbitrators, or surveyors, as the case may be, not only to the value of the land to be purchased or taken by the promoters of the undertaking, but also to the damage, if any, to be sustained by the owners of the land by reason of the severing of the lands taken from the other lands of such owner, or otherwise injuriously affecting such other lands by the exercise of the powers of this or the special act, or any act incorporated therewith.'

The above section was taken to be construed and understood that compensation for injurious affection was limited to land actually acquired from landowners and compensation would not be awarded where the landowner claimed that their retained lands would be devalued by construction of a motorway for example and the use of the motorway in the future.

This has been decided in a number of cases with the most recent case of Representatives of Chadwick (deceased) and (Plaintiff) another v Fingal County Council (Defendants). In that case Fingal County Council were constructing a motorway and were given statutory power to compulsorily acquire certain lands that belonged to the Representatives of Chadwick. Fingal County Council only acquired a small portion of land from the Plaintiffs which was to be used as an embankment. The Plaintiffs claimed compensation for injurious affection arising from the compulsory acquisition of their land however the property arbitrator held that compensation for injurious affection, as interpreted under section 63 of the Lands Clauses Consolidation Act 1845, meant that compensation was limited to injurious affection to the land actually acquired from the plaintiffs. The High Court had agreed with the arbitrator's findings however the plaintiffs appealed the decision. The Supreme Court dismissed the appeal and agreed with the finding of the arbitrator and the High Court.

Compulsory Purchase Orders are important from the view point of the landowner and the Local Authorities but as enunciated previously the law seeks to balance the right of the common good i.e. infrastructure and the right of individuals to own their own land.

Please note that this article is for information purposes only and does not constitute legal advice.

If you would like to discuss Compulsory Purchase Orders please contact Malcomson Law by calling 01 8744422 or complete an Online Enquiry Form. A solicitor who specialises in the private client area will contact you to advise you of your legal rights and entitlements.

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