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Friday 28 July 2017

Advice: Farmers' rights if their lands are subject to a Compulsory Purchase Order

Compulsory purchase order
Compulsory purchase order

Theresa Murphy

Q: I am a farmer in the West of Ireland and depend on the land completely to make a living. I have heard some talk of a local bypass and I am worried that my land might be taken by a Compulsory Purchase Order. I don't want to sell my land and I am very concerned about this. What do I need to know about Compulsory Purchase Orders, and can I stop the local authority from taking my land in this way?

A The issue of Compulsory Purchase Orders (CPOs) will always be a complex one as it tries to balance the public good with the private right to own property.

Certain statutory bodies can take land by means of a CPO without the consent of the landowners. These type of orders are usually used when there is a development of public infrastructure - for example, a road or an urban renewal project.

The legal process involved in compulsory purchases is very complex. It has evolved over a period of 200 years and there is a large amount of case law where the Courts have, over the years, attempted to clarify different aspects of the law in relation to CPOs.

The CPO for road schemes consists of a map or series of maps showing (outlined in red and coloured grey) the lands to be acquired together with a schedule which gives details of ownership of property/land and, where appropriate, lessees and occupiers.

The map and schedules go on display in the offices of the local authority for a period of not less than one month. Persons who have an interest in the land, the subject matter of the Order, have a period of not less than two weeks after the end of the period for inspection within which they can object to An Bord Pleanála in relation to the CPO scheme.

If An Bord Pleanála confirm the CPO scheme, an application for judicial review of the decision may be made to the High Court within eight weeks of the date of publication of the notice of confirmation of the scheme by An Bord Pleanála.

If your land is going to be subject to a CPO, you will receive/be served with a 'notice to treat'. There is also a requirement for notices to be placed in newspapers.


Without delay, you should seek the property advice of a chartered valuation surveyor experienced in the area of compulsory purchase.

Following service of 'notice to treat', the local authority can serve a 'notice of entry', which after 14 days, allows the local authority to enter and take possession of the land described in the CPO, even though compensation may not have been agreed at that stage.

Compensation

Compensation payable for land acquired as part of the CPO is usually negotiated between valuers for the owners (claimants) and valuers for the local authority.

In addition to the property acquired, compensation is payable, where appropriate, in respect of severance, injurious affection and disturbance.

Severance is where the loss of part of a property/landholding reduces the value of the part retained.

For example, the acquisition of a strip of land through a farm for a new by-pass road may make the farm less attractive as a unit and affect the viability of the farm business due to increased working costs and inconvenience.

Injurious affection is the damage to the retained land caused by the construction of the road and subsequent use. For example, the construction of an embankment may obstruct the view from a house on the retained land.

Disturbance concerns any other allowable loss sustained or expenses incurred by an owner as a result of the compulsory acquisition of land.

Examples include costs of seeking and acquiring alternative property.

Arbitration

Where it is not possible for the claimant and the local authority to reach agreement on the compensation payable, the law provides for an independent arbitration process whereby an arbitrator, after hearing evidence from the respective parties, determines the amount payable.

The arbitrator may also adjudicate on the liability for costs of the parties concerned. The decision of the arbitrator is binding on both parties

Land value

The landowner is entitled to the market value of his land at the date of the 'notice to treat'.

The market value can be based either on the existing use value of the land or its development value, whichever is the greater. Development value can be claimed only where development potential can be proven to exist.

It is also important that you have advice on the compensation package that may be available to you for the loss of your property.

Irish judges have on a number of occasions commented on how complex the CPO process is, so it is important that you have comprehensive legal advice on the options open to you both in relation to any objections which you may wish to make and also in relation to the procedures to be followed in progressing those objections to the fullest degree permitted.

Even if you do not wish to object to the proposed CPO, it is important that you have a full understanding of the process and the implications for you of the exercise of the powers of purchase by the relevant body or authority.

This article is intended as a general guide only. You should seek professional advice in relation to individual circumstances.

Theresa Murphy is a barrister based in Ardrahan, Co Galway

Do you have a question for our team of experts? Email farming@independent.ie or by post to: Farming Independent, Independent House, 27-32 Talbot St, Dublin 1?

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