Compulsory Purchase Orders – National Infrastructure Projects
Large infrastructure projects in Ireland are generally the responsibility of the National Transport Authority. For the purpose of this article we shall use a current infrastructure project which is under consultation currently. In 2018 the first public consultation on the Dublin Core Bus Corridor Project was launched.
Public Consultation Procedure
The first step in these types of projects is normally a public consultation process where the views of the persons whose legal interests are affected are canvassed, together with submissions from the wider public. In the Core Bus Corridor Project this consists of potential routes proposed being discussed and inviting submissions from interested parties and stakeholders.
Core Bus Corridors Project
Public Consultation November 2018-March 2019
- Clongriffin to City Centre
- Swords to City Centre
- Blanchardstown to City Centre
- Lucan to City Centre
Public Consultation January 2019-April 2019
- Liffey Valley to the City Centre
- Clondalkin to Drimnagh
- Greenhills to the City Centre
- Tallaght to Terenure
- Kimmage to the City Centre
- Rathfarnham to the City Centre
Public Consultation February 2019-May 2019
- Ballymun to the City Centre (Option A & B)
- Finglas to Phibsborough
- Bray to the City Centre
- UCD Ballsbridge to the City Centre
- Blackrock to Merrion
- Ringsend to the City Centre
An Bord Pleánala Application
After the public consultation process the plans will be finalised and an application will be prepared by the relevant local and/or national transport authorities who are proposing the development and submitted to an Bord Pleánala. The application to the Board will require detailed submissions which will include environmental impact assessments (EIA) Assessments and other assessments as set down by national and European legislation. Provisions will be required to deal with any protected structures or other structures with architectural and cultural significance.
An Bord Pleanála has wide discretion as to when it will hold oral hearings. Oral hearings are generally held for:-
- strategic infrastructure cases;
- appeal cases which are complex or where significant national, regional or local issues arise;
- compulsory purchase orders and related cases;
- other case types when considered necessary.
At oral hearings persons whose interests are affected are entitled to make observations which will be addressed by an Inspector appointed. The Oral hearings are in public and members of the public are entitled to attend but may not be entitled to participate. If a person has not made submissions previous to the formal oral hearing they will be required to apply to the Inspector to make submissions and if this is consented to by the Inspector they, or their advisors will be allowed to make submissions on the payment of the requisite fee. The requirement is generally that you can show a tangible effect of the proposal on your property or business or some other interest that is to be affected.
After an oral hearing has concluded the Inspector appointed will prepare a report for the Board. The Board will consider the Inspectors report and issue a decision and draw up an Order. The Inspectors Report, Board Direction and ultimate Board Order will be available published and publically made available online
Service of Notice to Treat
Within 18 months of the publication of the Order the acquiring authority is required to serve the requisite land owners with a document which puts them on notice of the acquisition known as the Notice to Treat. This is a legal document formally notifying the land owner that their land is to be acquired. On foot of this service the person whose interest is being acquired may submit a claim for compensation. This claim is usually carried out with the assistance of a professional valuer.
If a compensation figure can be agreed between the parties on consent then the transfer of land will progress in the ordinary way by way of a deed of transfer and the acquiring authority will normally pay reasonable legal fees incurred on the transfer of the interest.
Appointment of Property Arbitrator
If compensation cannot be agreed then legislation sets out a mechanism to resolve the impasse in that the matter can be set down for arbitration before the property arbitrator to determine the value of the take. An formal application together with the requisite fees to appoint an arbitrator is made to the land values reference committee in the Four Courts complex in Dublin.
Once the formal application is made then the matter is set down for hearing before the property arbitrator. The Arbitrator is an independent expert who will determine the correct amount of compensation payable for the interest acquired. The affected landowner is generally entitled to their reasonable professional costs as part of that process so it is advisable to obtain experienced representation in advance of the application. Professional advisors can include valuers, planners, engineers or road engineers as appropriate, together with legal advisors.
Ultimately the matter will be heard before the property arbitrator who will assess the relevant amount of compensation. Again all reasonable costs incurred will be awarded as part of the award.
Service of Notice of Entry
In parallel with that procedure, construction of the project will normally progress. When the acquiring authority actually physically requires the land for the purpose of the construction they can issue and serve an appropriate Notice of Entry. This authorises the acquiring authority to enter onto the lands and carry out the works required.
Calculation of Compensation Due
The calculation of compensation due is a complex exercise that should be guided by professional advisors.
As a starting point a review of the claimant’s title should be undertaken to ensure that all interests are captured and accounted for.
A compulsory purchase order compensation scheme is a somewhat artificial exercise which requires the enhancement, if any, by the proposed development to be discounted. The compensation is fixed at the value of the acquired property at the date of the Notice to Treat.
There are a number of heads of claim which may be available to a claimant such as the diminution or reduction of the resultant lands, loss of profits or goodwill, severance (where the land retained is split as a result of the CPO), injurious affection and disturbance. Other types of claim may be available depending on the project.
Core Bus Corridor Project Timeline
In our chosen example it is anticipated that the application to An Bord Pleánala will be made in 2020 and requisite Notices to Treat will issue in 2021.
It is advisable, at the earliest instance to obtain the services of a competent valuer and legal advisor to ensure that you are receiving appropriate compensation for any compulsory purchase.