Landowners are getting a raw deal on CPO compensation
Farmers need to pursue all the available arbitration and appeal avenues to ensure they get a fair price for land acquired with CPOs by local authorities
The majority of the landowners have been seriously short-changed in CPO compensation over the past several years, and the situation has deteriorated significantly in recent years.
Capital Gains Tax Relief
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The issue of capital taxation of compensation has been a major concern for landowners.
Nobody can understand how a landowner can be expected to restore his or her pre-CPO position when a sizeable chunk of the compensation is taken by taxation even before the owner gets their hands on it.
In these cases, rollover relief of all taxes (which was available at one stage) should be restored as a minimum concession for landowners intending to reinvest the compensation in restoring their property and business.
Landowners have to be compensated for all their losses, not merely the value of the land taken. The stated policy of the roads authority is "to get value for money." Herein lies the initial conflict. While nobody would wish that public money was ever wasted, landowners are entitled to be fully compensated. If, for any reason, a landowner omits to lodge a compensation claim or inadvertently under-claims, there is still an obligation on the authority to fully compensate him or her.
Consistent compensation, on a like-for-like basis, does not always apply and landowners are regularly confused as to why other neighbours are offered considerably more per acre of land than themselves. No two situations will be exactly the same. Consistency can only be achieved, by the use of well designed and professionally prepared models or guidelines for different circumstances.
The appointment of external valuers has removed the traditionally sensitive approach of internal county council valuers, who were familiar with local situations and property values.
In rural situations, the appointment of valuers, with little or no knowledge of farming, has been a major problem. Appointing agricultural experts (agronomists) to assess agricultural disturbance has been almost totally abandoned by authorities.
The initial compensation assessment process has become haphazard and lacks transparency. A flash inspection, without an interview with either the landowner or his agronomist, is not a fair compensation assessment.
Refusal by the acquiring authority to respond to requests for the breakdown and explanation of compensation proposals is not in accordance with transparency and is not helpful, and may even be illegal.
Farms are now considered the most dangerous of working sites. It is difficult to imagine a more dangerous circumstance than a major road construction scheme through a farm. The refusal by county councils to provide health and safety plans should not be accepted by landowners. Insistence on high-vis jackets on site, in itself, is not an adequate precaution during construction works. High-vis jackets may even attract unwelcome attention from animals such as bulls.
Commencing works without erection of a stockproof, and health and safety compliant, boundary fence exposes workers and animals to accidents.
Negotiations regularly become "calf dealing" type of exercises with both sides claiming wildly impossible positions hoping for a 50:50 compromise. At the least, Acquiring Authority Negotiators have a duty to enter negotiations in a professional manner on the basis of the compensation Regulations.
What should Landowners Do?
The most important steps are summarised as follows:
No works should commence before landowners are satisfied that regulations governing the entire process will be fully complied with. This is best achieved by landowners operating as a managed group. County councils have come together under the roads authority umbrella to deal with farmers; why should farmers not do likewise to deal with the authority?
At the very beginning, landowners should insist on an overall health and safety plan for the entire scheme, and a detailed health and safety plan for each individual CPO site.
Landowners should get involved in scrutinising the pre-scheme Environmental Impact Statement (EIS). This has often been a haphazard process, resulting in farmers being left with inadequate accesses to, and severe flooding of, their retained land. In severe instances intensive livestock enterprises, such as dairying, may have to be significantly reduced or abandoned.
Following publication of the CPO and the EIS, an opportunity is given to all interested persons to lodge an objection, and present this before an oral hearing. This can be an expensive exercise and can give landowners a false sense of hope. Unfortunately, I feel the value of, and usefulness of this process is highly questionable because I have scarcely ever experienced a satisfactory response.
The authority will serve a formal Notice to Treat on every impacted property owner listed, in the original CPO schedule. This is an invitation to submit a detailed compensation claim (normally within six to eight weeks) with a view to commencing negotiations.
It will not normally be possible to have reached agreement on compensation before the scheme has been completed. However, works should not proceed until the farmer is satisfied that the claim for compensation has been addressed by the authority in a meaningful way and that the authority negotiator is an expert on the relevant farming enterprises or, alternatively, a separate farming expert has been instructed to negotiate the disturbance claim.
No works should commence before a stockproof and health and safety compliant fence has been erected around the CPO site. The timing of erection and specifications of this fence should be agreed with the landowner
Farmers have an absolute right to safe and workable accesses and restoration of services, such as electricity and water, to retained lands. These should be put in place before roadworks commence, to enable the farming operations continue without excessive disruption.
If accommodation works are offered, they should be detailed in writing and drawings, and provided to the owner before works commence.
If realistic compensation proposals are made by the authority, the negotiations could be allowed to continue for a number of subsequent months.
If the proposals are unrealistic or unduly delayed, an application for assessment or arbitration should be made at an early date.
Always remember that while the roads authorities have huge CPO powers, there are also rules and regulations in place to ensure landowners are treated fairly. It is up to landowners to insist that these rules are fairly applied.
Richard Collins is a consultant with FBA Consultants, based in Fermoy, Co Cork. He is the co-author with Noel O'Brien of A Practical Guide to Compulsory Purchase in Ireland. Ph: 025 31244
Contact us with your CPO queries
Over the coming months, I will be dealing with several more aspects of CPO land acquisition and way leaves. Readers' reaction to the initial articles indicates that numerous landowners have been having major problems throughout the country. If you wish to let us know about your own experience or if you have a problem or have alternative views why not email me at: firstname.lastname@example.org.
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