CPOs: Ruling on South Kerry Greenway will have ‘far reaching’ consequences

Legal advice for farmers 
CPOs: Ruling on South Kerry Greenway will have ‘far reaching’ consequences

Part of the route for the proposed South Kerry Greenway. Landowners took issue with their lands being used under Compulsory Purchase Order (CPO). File Picture. 

A recent High Court ruling dismissed judicial reviews against South Kerry Greenway planned by Kerry County Council mainly on the route of the former Southern and Western railway line between Glenbeigh and Caherciveen.

One of the challenges from the landowners whose lands would be compulsory purchased by the Council were issues about the process surrounding the confirmation of compulsory purchase orders (CPO).

On the CPO the Judge rejected arguments that the Roads Act by the Council had been incorrectly used in acquiring the lands for the project or that the processes of CPOs and the development consent was improperly combined.

The Judge also rejected the argument that the CPO was disproportionate and found that the interference with the landowner’s property rights was taken in a lawful manner in the public interest.

This decision will have far-reaching consequences for other greenways that are being proposed in Ireland by various local authorities.

Social and economic factors 

The High Court affirmed the confirmation of the CPO and confirmed that the Council was entitled to use the social and economic factors such as population decline in the area in making the case for the CPO.

Generally, it is better to acquire lands by agreement with landowners but that is not always possible and can cause significant delays and that is why CPO’s are necessary for certain public infrastructure projects.

The CPO procedure was brought into place for the “common good”. If your lands are the subject of a CPO you will be served with a notice.

Newspapers notices will also be published. You can lodge an objection on planning and or legal grounds. The Minister can then confirm, vary or turn down the CPO order.

If the Minister confirms the CPO order there are limited grounds to appeal to the High Court. You can only challenge the decision on a point of law.

The property is generally valued at the date of the Notice to Treat. The Notice to Treat will require you to submit details of your claim within a specified period.

If you own property that is about to be compulsory acquired by a state body or authority then it is important that you react quickly.

Compensation

You can claim compensation under various headings namely the land acquired, the diminution in value of retained lands if any, costs resulting from the acquisition, disturbance, loss of profit or goodwill, loss or depreciation of stock, professional fees necessary for the acquisition for example surveyors’ fees or legal fees.

The landowner is entitled to the market value of his land as at the date of the Notice to Treat. If compensation cannot be agreed The Acquisition of the Land (Assessment of Compensation) Act 1919 provides for such difficulties to be resolved through arbitration.

Both parties, the landowner and the acquiring authority are bound by the arbitrator’s decision. 

The arbitrator is completely independent of the acquiring authority and he or she will listen to both sides of the dispute and make his or her award accordingly.

In general, arbitration should be a last resort. The costs of dealing with a claim up to the arbitration are for the acquiring authority to pay.

However, the costs of the arbitration are at the discretion of the arbitrator and may be awarded against either party.

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 also in relation to the procedures to be followed in progressing those objections.

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.

  • Karen Walsh, from a farming background, is a solicitor practicing in Walsh & Partners, Solicitors, 17, South Mall, Cork (021-4270200), and author of ‘Farming and the Law’.
  • Walsh & Partners also specialises in personal injury claims, conveyancing, probate and family law.
  • Email: info@walshandpartners.ie Web: www.walshandpartners.ie

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