Sunday 25 September 2016

'€5.8m of Kennedy firm's award should go to neighbours,' court hears

Tim Healy

Published 03/12/2015 | 16:37

The land at Carrickmines is worth €12.8m only on the basis that a family who lived next to the property consents to the removal of a legal restriction on its development, it is claimed.
The land at Carrickmines is worth €12.8m only on the basis that a family who lived next to the property consents to the removal of a legal restriction on its development, it is claimed.

THE owner of property next to land in south Dublin which was rezoned in the early 1990s is claiming €5.8m from a €12.8m compensation award to a company of businessman Jim Kennedy in High Court proceedings.

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The land at Carrickmines is worth €12.8m only on the basis that a family who lived next to the property consents to the removal of a legal restriction on its development, it is claimed.

Mairead Smith, widow of the late solicitor Thomas Kevin Smith, a principal in Smith Foy & Partners, and his estate, say as long as that legal restriction exists, they are entitled to €5.8m of the €12.8m valuation put on adjoining land owned by Mr Kennedy's Jackson Way Properties Ltd (JWPL).

The claim relates to an 18-acre "take" of JWPL-owned land by Dun Laoghaire Rathdown Co Council as part of the compulsory acquisition of land in 2001 for the M50 motorway which as since been built.

An arbitrator assessed the value of the land at around €1.1m per hectare, on the basis that it could have been developed for industry had it not been acquired for the motorway.

The council and the Smiths said that valuation should have taken into account a "restrictive covenant" affecting the development potential of the JWPL land which they and previous owners of their (Smith) land had enjoyed since 1962.

JWPL denied the covenant still exists or affects its land. Last October, it lost a High Court bid seeking that the council pay out the award, or at least €7m of it, pending determination of the restrictive covenant issue and the Smiths €5.8m claim.

Mr Justice David Keane is now dealing with JWPL's application for an order that the covenant no longer applies.

The council and the Smiths are opposing the application.

The court has heard the Carrickmines lands have been the subject of years of legal cases including a freezing order obtained by the Criminal Assets Bureau (CAB) alleging corrupt enrichment of JWPL as a result of rezoning of the land by Dublin county councillors in the 1990s.

CAB later withdrew its case against JWPL saying it could not not proceed due to unavailability of witnesses.

JWPL is now suing CAB for damages for misfeasance in public office.

CAB denies the claims.

JWPL separately sued Dun Laoghaire-Rathdown Council for judgment for the €12.8m arbitrator's award.

It later claimed the restrictive covenant no longer applies.

The council says no one should get paid until the covenant issue is dealt with as the valuation issue may then have to go back to an arbitrator for re-assessment.

In refusing JWPL an order last October for payment of the award, or part of it, Mr Justice Donald Binchy said if this were done, it was possible it would result in a substantial overpayment to JWPL.

He also said JWPL failed to take any steps to clear the restrictive covenant until it issued proceedings against the Smiths in 2010.

While the explanation for this was due to the personal difficulties of Mr Kennedy,  it was nonetheless clear to the judge that it would be unfair to attribute any of the delay during this period to the council.

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