Farm Ireland
Independent.ie

Wednesday 12 December 2018

'I have learned several CPOs are proposed for my land. It will destroy my farm. What can I do?'

 

'Compulsory purchase orders (CPOs) are often controversial'
'Compulsory purchase orders (CPOs) are often controversial'

Theresa Murphy

Q I am a farmer in north Dublin and have growing concerns about CPO's on my land. I would like to know if there are ways to refuse CPOs, and whether there are any limits to the number of CPOs that can be placed on property. There are currently several CPOs proposed for my land and I am concerned that what I will be left with will not allow me to farm my land in a viable way at all.

A Compulsory purchase orders (CPOs) are often controversial as they try to balance the public good with the private right to own property.

Judges have frequently commented on how complex the CPO process is in Ireland.

However, any process which reduces the land owners' property right so significantly and often without agreement is always going to result in difficulty.

What are CPOs?

Some statutory bodies can take land, without the agreement of landowners, by means of a CPO.

These types of orders are usually used when there is a development of public infrastructure such as motorways.

The legal process involved in compulsory purchases is very complex and has evolved through a large amount of case law.

Procedure

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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 placed in newspapers.

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

Following service of notice to treat, the local authority can serve a notice of entry; after 14 days, this 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 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.

Compensation

Many years often pass between the date that the acquiring authority serves a notice to treat and the date that possession of the property is taken.

During that period, the value of the land may fluctuate, and it is important to establish the correct date for the purposes of assessing the compensation payable to the owner deprived of his/her property.

The relevant date for valuation is the date the acquiring authority entered onto the land and took possession.

A severance payment is made where the loss of part of a property/landholding reduces the value of the part retained by the owner.

For example, the acquisition of a strip of land through a farm may make the farm less attractive as a unit and affect the viability of the farm business due to increased working costs and inconvenience - so the farmer should expect a severance payment in circumstances like this one described above.

'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. You may seek compensation if this could affect you as part of the CPO.

'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.

Valuation

At a minimum, the value of land to be taken should be the amount which the land, if sold in the open market by a willing seller, might be expected to realise (in other words, market value).

If the landowner has made improvements or investment in the land, this should be taken into account in determining the market value.

The most significant rule in relation to the determination of the compensation value in the case of farm land is that the landowner should be paid for the value of the land to him/her, not just its value generally.

If he/she is using the land to carry on a business (like farming), the value of the land to him/her will include the value of his/her being able to farm there without disturbance.

Costs

All reasonable costs are a valid part of the compensation claim. These costs include solicitors' and valuers' professional services and any others that would be reasonable.

If your property becomes the subject of a CPO or if you expect that it will in the future, you should seek professional advice as early as possible as the time limits involved are very short.

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 for the loss of your property.

Objection

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 in relation to the procedures to be followed in progressing those objections to the fullest degree.

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.

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.

The purpose of CPOs is to serve the public good, for the provision of infrastructure etc. that will benefit the larger population.

Therefore, while to have several orders made against your land is unfortunate, it is not likely that you would succeed in limiting the number of CPOs which will apply to your land.

However, you should seek appropriate compensation for the losses.

This article is a general guide. You should seek professional advice in relation to your 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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