Tuesday 22 October 2019

Compulsory purchase route is costly and open to legal challenge

Stock photo: Getty Images
Stock photo: Getty Images
Shane Phelan

Shane Phelan

Adverse public opinion about the decision to allow the Sisters of Charity to own the proposed new National Maternity Hospital is threatening to derail the deal put in place for the publicly-funded construction of the €300m facility. But are people getting worked up about nothing when there is a deal in place guaranteeing the independence of the hospital?

An agreement document states the hospital's clinical services will be free of any religious considerations, while other safeguards include a 'golden share' being held by the State to ensure the hospital's independence.

A lien, or legal charge on the hospital, would also mean it cannot be sold. But not everyone is convinced these measures will guarantee that clinical decisions are not in some way subject to religious interference.

Couldn't this all be solved if the State just bought the land?

It could, but it wouldn't be simple. There is no guarantee that the St Vincent's Hospital Group would agree to sell.

The proposed location of the new hospital is right in the centre of the St Vincent's campus, adjacent to the main ward block of the existing public hospital.

A sale would be a much likelier proposition if the new hospital was to be located on the periphery of the campus.

Could the State seize the land?

In theory it could, but this would be a very expensive option, especially when you consider the State is being offered the use of the land for free. The land would have to be bought by way of a compulsory purchase order, an instrument used to allow public infrastructure projects to go ahead for the common good. Under CPO rules the hospital group would have to be paid the value of the land, which would be considerable given its Dublin 4 location.

A premium would also need to be paid for any potential diminution of value of the remaining lands in the campus, plus other costs arising from disturbance or loss of profits.

Could a CPO be subject to legal challenge?

Most definitely. Indeed if there was a CPO and it was to be challenged, the project could be set back several years with no guarantee it would go ahead eventually at the chosen site.

One just has to look at the case of Kildare farmer Thomas Reid who resisted efforts by IDA Ireland to compulsorily purchase his land in 2011. The matter went all the way to the Supreme Court, where Mr Reid won his case in 2015.

What about a long-term lease?

This would lead to a situation where the State owns the hospital buildings but not the ground on which they stand.

In the context of the deal that already exists, this option wouldn't make much sense, financially or otherwise, unless it involved a peppercorn rent and the lease being for an awfully long time, effectively guaranteeing the buildings for use as a maternity hospital in perpetuity.

Irish Independent

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