Case Study: 'Farmer's milking operation wrecked by CPO that could become a nightmare bottleneck'

Acquiring authorities’ policy is to resist separate claims on key  aspects of CPO compensation

Acquiring authorities are now strongly resisting the provision of underpasses
Acquiring authorities are now strongly resisting the provision of underpasses

Richard Collins

This is the story of a south Leinster dairy farmer who lost seven acres in a CPO and had a further 31 acres of his grazing platform cut off from his milking parlour and residence.

In addition, his avenue entrance and several mature beech, oak and ash amenity trees were removed.

In summary, he was treated as follows:

  • He was refused an underpass which could easily have been provided at reasonable cost.
  • He was offered derisory compensation.
  • He was subjected to the assessment process and was awarded fair compensation, but the acquiring authority refused to pay.
  • He offered to agree a compromise figure, in the interest of settlement, but the acquiring authority refused to even talk.

He was then subjected to the arbitration process and awarded compensation which the acquiring authority unsuccessfully appealed to the High Court and in subsequent negotiations had to increase the compensation because of a flaw in the CPO.

The acquiring authority demanded the farmer's three previous years' accounts and tax returns, the details of which were openly and publicly referred to at the arbitration hearing, which is a public forum.

The acquiring authority (and the taxpayer) are now responsible for all the substantial costs of several days at assessment, and arbitration, and High Court negotiations but are resisting payment by every means at their disposal.

Looked at from the outside, this farmer's dairying operation has been wrecked and his property severally devalued.

He was subjected, at considerable financial risk, to two compensation intermediary processes and a High Court appeal.

Also Read


In times of concern about data protection, the opening of his farm accounts and tax returns to the public was a most questionable action.

Apart from the property damage and disturbance to this landowner and his family, a side impact will be the problems for public traffic attempting to get to and from a busy local town, if the farmer needs to use the separated area to graze his dairy herd.

A project that will have cost millions could end up being a nightmare bottleneck.

When landowners need to play hardball on CPOs

ONE of the more complex aspects of a Compulsory Purchase Order (CPO) on farmland is compensation for severance (taking of land), injurious affection (damage to retained lands) and the provision of accommodation works.

Severance and injurious affection are so closely related that they are sometimes (incorrectly) treated by negotiators as a single item of devaluation.

Negotiators that do not assess and claim for severance and injurious affection separately are not doing their clients any favours. Acquiring authority negotiators are likely to strongly resist separate claims for these items but that should not deter the landowner’s negotiator.

Compensation claims for severance, injurious affection and accommodation works should not be confused with that for permanent disturbance (which I will deal with in a later article).

Severance and injurious affection are separately assessed and expressed as percentage devaluations of all the retained property, regardless of the landowner’s enterprise.

In contrast, a claim for permanent disturbance addresses the impact on the owner, and the enterprises on the holding, both at the time being and into the future.

Unfortunately, this confusion is a regular feature of both claims and offers.

Acquiring authority negotiators will regularly, and incorrectly, insist that the impacts of severance and injurious affection are limited to a few acres on either side of the new roadway.

Faced with an acquiring authority valuer, who insists on a restricted interpretation of the compensation rules and standards, landowners should not delay in applying for assessment or arbitration, where the rules and regulations will be properly applied.

Severance

Severance devaluation could be the single greatest component of a CPO compensation claim, if the Acquiring Authority does not provide reasonable scheme or accommodation works to mitigate the impact of the scheme on the entire holding.

Severance is technically defined as “the taking of an area from a holding”. It can result in the splitting of a holding, leaving some land or buildings to one side.

It can also be at the boundary of a holding, in which case there may be no separation or sub-division of retained property, but there could still be a severe impact.

Whatever type of severance happens, there is always an impact on the value of the holding and, in the majority of cases, it will result in devaluation of all the retained property, not merely a few acres alongside the new roadway.

Severing accesses to retained land is a common problem, and can have a major impact on a holding, particularly on dairy farms. A few years ago, on the Cork–Dublin motorway, near Mitchelstown, land accesses were severed and the county council saw no difficulty forcing two farmers to move two large herds of cows in opposite directions along a narrow country roadway.

Until recent years, it was relatively easy to negotiate underpasses on severely severed holdings, particularly on dairy farms.

Acquiring authorities are now strongly resisting the provision of underpasses except in exceptional circumstances.

Underpasses or overpasses, should be discussed with the acquiring authority at an early stage, before the road design phase has been completed. In complex cases, a roads engineer should be engaged.

Severance regularly results in a complete change of routes to and from adjoining towns and villages which could be very disruptive for the entire family.

New detours and the closing of existing roads and rights of way are a frequent feature of road schemes.

Acquiring authority negotiators regularly invoke the long established ‘Edwards Principle’ to deny property owners their entitlement to compensation in some of these cases. While this is a perfectly valid principle, the ignoring of the equally valid ‘McCarthy Rules’, should not be tolerated by property owners.

The loss of mature trees, such as oak, ash and beech, can result in amenity loss, which is a valid basis for compensation.

It is obviously impractical to claim for replacement of a 200-year-old oak tree, but a semi-mature (say 20 to 25 years old) sapling can be transplanted from a nursery.

Betterment

In a limited number of situations, severance could give rise to ‘Betterment’ by opening up developable road frontage and creating access that would result in new development potential. Betterment is a complex phenomenon. Property owners should be on the watch out for acquiring authority negotiators unreasonably attempting to reduce the compensation by unjustifiably claiming “betterment”.

Injurious affection

Injurious affection is technically defined as “the damage done to retained lands by the construction works and their subsequent user”.

This can take one of a number of forms including additional flooding, damage to drainage, unbearable noise, visual impact, loss of shelter, etc. As in the case of severance, compensation for injurious affection should always be claimed separately and expressed as a percentage devaluation of the entire of the retained holding.

In the case of long-term drainage impacts, the acquiring authority will generally give a written commitment that the future drainage of the holding will be at least as good as it always had been prior to the road scheme.

This is an absolutely meaningless commitment. If there is a significant risk that the drainage of the retained land will be permanently damaged, the landowner should engage a drainage engineer to prepare his or her case at an early stage.

Acquiring authority solutions for noise and privacy impacts are the erection of timber noise barriers and the planting of quick-thorn hedging.

While road barriers may have a slight mitigation effect, they are ugly looking and fragile structures, and quick thorn hedges have no noise mitigating effect and will take several years to restore even a minimal level of privacy. In any event, these so-called solutions will, at best, only reduce the impact slightly below a legal tolerance level.

In summary, there is an entitlement to substantial compensation, in most cases, for the impact of injurious affection to the retained property and landowners should not be fooled by “sticking plaster” solutions proposed by an acquiring authority.

Scheme/accommodation works

Scheme works are constructed by the acquiring authority on the acquired CPO land.

Typical examples are cattle underpasses, boundary fencing and landscaping. They are part of the scheme structures, and landowners generally have to take what they get.

However, landowners should address these scheme works with the acquiring authority at an early stage of the process in the hope that their concerns get a reasonable hearing in good time, before the scheme design has been completed.

Acquiring authorities may offer to carry out works on retained lands with a view to mitigating undesirable impacts.

These works are commonly referred to as accommodation works and they are part of the negotiations.

The authority is not legally obliged to do any of these works, but if essential works are not done, the compensation should be correspondingly increased.

Equally, the landowner can refuse accommodation works offered by the acquiring authority if they are offered only with a view to saving money but are of little or no benefit to him or her.

Typical accommodation works are cattle holding pens, farm roadways, water facilities, planting, gates, etc.

Accommodation works should be negotiated at the same time as financial compensation, and a total package should either be agreed or costed and referred for assessment or arbitration. A written schedule of agreed works should be provided by the acquiring authority as part of any compensation proposals.

Roadway fencing and its maintenance are normally the responsibility of the authority and landowners are generally put in a situation that they have to take what they get. Landowners, in general, have a preference for concrete post and rail fencing, but in recent years such fencing will not be provided, on the grounds that, in the event of a road accident, concrete post and rail fencing will result in more severe injuries.

An assessor or arbitrator cannot make an order to ­compel an acquiring authority to carry out scheme or ­accommodation works, or erect concrete post and rail fencing.

However, he can order that the costs of essential works be paid to the landowner if he feels that it would be reasonable to do so.

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.

racollins@fba.ie or 025 31244

Indo Farming