compulsory acquisition of land

255 Pages·2017·2.32 MB·English

by  Claire O Connell

ISSUES PAPER
COMPULSORY
ACQUISITION OF
LAND

(LRC IP 13 - 2017)
ISSUES PAPER: COMPULSORY ACQUISITION OF LAND

Table of Contents
Glossary 8
Background to the Issues Paper and the issues raised 9
ISSUE 1 15
Compulsory Acquisition, Property Rights and General Principles 15
ISSUE 2 45
What interests in land can be compulsorily acquired? 45
ISSUE 3 49
Agreement between the landowner and the acquiring authority 49
ISSUE 4 53
Power to request information 53
ISSUE 5 56
Power to enter land for the purpose of assessing its suitability 56
ISSUE 6 63
Terminology 63
ISSUE 7 65
Advertising and notifying affected landowners 65
ISSUE 8 68
What to do when landowners cannot be identified or located 68
ISSUE 9 72
Establishing a purpose for the CPO 72
ISSUE 10 94
Standing to object, grounds for objection, and the time limit to object 94
ISSUE 11 105
The jurisdiction of a body to hear and determine objections 105
ISSUE 12 111
Advertising and notifying the outcome of the confirmation hearing 111
ISSUE 13 114
Special rules for judicial review of decision of confirming body 114
ISSUE 14 131
Notice to treat and the valuation date 131
ISSUE 15 142
Power of entry before assessment of compensation and interest rate payable 142
ISSUE 16 151
Principles and rules for the assessment of compensation 151
ISSUE 17 186
Neighbouring landowners 186
ISSUE 18 193
Arbitration 193
ISSUE 19 201
Determining title 201
ISSUE 20 207
Priority payments to the Revenue Commissioners 207
ISSUE 21 210
LAW REFORM COMMISSION OF IRELAND
Costs 210
ISSUE 22 214
Disposal of land 214
ISSUE 23 221
Consolidation of compulsory acquisition legislation 221
Appendix A: Table of compulsory acquisition legislation
207
Appendix B: Survey conducted in 2008 regarding the frequency of use of CPOs
230
© Law Reform Commission 2017
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LAW REFORM COMMISSION OF IRELAND
About the Law Reform Commission
The Law Reform Commission is an independent statutory body established by the
Law Reform Commission Act 1975. The Commission’s principal role is to keep the
law under review and to make proposals for reform, in particular by recommending
the enactment of legislation to clarify and modernise the law. Since it was
established, the Commission has published over 200 documents (Working Papers,
Consultation Papers, Issues Papers and Reports) containing proposals for law
reform and these are all available at www.lawreform.ie. Most of these proposals
have contributed in a significant way to the development and enactment of
reforming legislation.
The Commission’s role is carried out primarily under a Programme of Law Reform.
Its Fourth Programme of Law Reform was prepared by the Commission following
broad consultation and discussion. In accordance with the 1975 Act, it was
approved by the Government in October 2013 and placed before both Houses of
the Oireachtas. The Commission also works on specific matters referred to it by the
Attorney General under the 1975 Act.
The Commission’s Access to Legislation project makes legislation in its current
state (as amended rather than as enacted) more easily accessible to the public in 3
main outputs: the Legislation Directory, the Classified List and the Revised Acts.
The Legislation Directory comprises electronically searchable indexes of
amendments to primary and secondary legislation and important related
information. The Classified List is a separate list of all Acts of the Oireachtas that
remain in force organised under 36 major subject-matter headings. Revised Acts
bring together all amendments and changes to an Act in a single text. The
Commission provides online access to selected Revised Acts that were enacted
before 2006 and Revised Acts are available for all Acts enacted from 2006
onwards (other than Finance and Social Welfare Acts) that have been textually
amended.

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ISSUES PAPER: COMPULSORY ACQUISITION OF LAND

Commission Members
President:
Mr Justice John Quirke, former judge of the High Court
Commissioner (full-time):
Raymond Byrne, Barrister-at-Law
Commissioner:
Donncha O’Connell, Professor of Law
Commissioner:
Ms Justice Carmel Stewart, judge of the High Court
Commissioner:
Tom O’Malley, Barrister-at-Law
LAW REFORM COMMISSION OF IRELAND
Commission Staff

Law Reform Research
Director of Research:
Professor Ciarán Burke, BCL (French) (UCD, Toulouse), LLM (VU Amsterdam),
LLM, PhD (EUI Florence)
Legal Researchers:
Emma Barry, BCL, LLB, LLM, Barrister-at-Law
Hanna Byrne, BCL (Intl) (NUI), MSc (LEI)
Ciara Dowd, BA (DCU), LLM (University of Edinburgh)
Niall Fahy, BCL, LLM (LSE), Barrister-at-Law
Sarah Keating, BCL (NUI), LLM (UL)
Finn M. Keyes, LLB (Dubl), LLM (UCL)
Jack Nea LL.B (NTU), LL.M (NUI), Dip. Corp. Law and Gov. (Law Soc.), Prof. Dip.
Compliance (UCD), Cert. Commercial Contracts (Law Soc.), Barrister-at-Law
Robert Noonan LLB (Dubl), BCL (Oxon)
Claire O'Connell, BCL (NUI), LLM (NUI), SainDip. Gaeilge do Chleachtóirí Dlí (NUI)
Rebecca O'Sullivan, BCL, LLM (NUI)
Access to Legislation
Project Manager:
Alma Clissmann, BA (Mod), LLB, Dip Eur Law (Bruges), Solicitor
Deputy Managers:
Kate Doran BCL (NUI), LLM (NUI), PhD (UL), Barrister-at-Law
Fiona Carroll BA (Mod), LLB, Solicitor
Administration
Head of Administration:
Deirdre Fleming
Executive Officers:
David Field
Brendan Meskell
Clerical Officer:
Brid Rogers
Library and Information Manager:
Órla Gillen, BA, MLIS
Principal Legal Researcher for this Issues Paper
Claire O'Connell, BCL (NUI), LLM (NUI), SainDip. Gaeilge do Chleachtóirí Dlí (NUI)
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ISSUES PAPER: COMPULSORY ACQUISITION OF LAND

GLOSSARY
The following abbreviations are used throughout this Issues Paper
A1P1 – Article 1 of Protocol No.1 of the ECHR
CPO – Compulsory Purchase Order
ECHR – European Convention on Human Rights
ECtHR – European Court of Human Rights
EIA – Environmental Impact Assessment
EIS – Environmental Impact Statement
1845 Act – Lands Clauses Consolidation Act 1845
1919 Act – Acquisition of Land (Assessment of Compensation) Act 1919
1960 Act – Local Government (No.2) Act 1960
1966 Act – Housing Act 1966
2000 Act – Planning and Development Act 2000
2006 Act – Planning and Development (Strategic Infrastructure) Act 2006
LAW REFORM COMMISSION OF IRELAND
BACKGROUND TO THE
ISSUES PAPER AND THE
ISSUES RAISED
Introduction
This Issues Paper forms part of the Commission’s Fourth Programme of Law
Reform.1 It concerns a review of the current law on compulsory acquisition of land
with a view to the clarification, reform and consolidation of the principles and rules
that underlie the process. It has been suggested that the current CPO processes
(of which there are over 70) may be unnecessarily complex, lengthy and costly and
the purpose of the project is to determine whether a fairer, more effective and
efficient system could be put in place. The current law emanates from many
different pieces of legislation, and different rules apply depending on the type of
compulsory purchase order (CPO) involved, whether for housing, railways, roads
or other infrastructure such as gas pipelines. In addition, while the most commonly
used CPO powers are based on legislation enacted by the Oireachtas, such as the
Housing Act 1966 and the Planning and Development Act 2000, some of the
relevant legislation predates the foundation of the State, including the Lands
Clauses Consolidation Act 1845 and the Acquisition of Land (Assessment of
Compensation) Act 1919.
The project is wide-ranging in scope and therefore this Issues Paper contains 23
issues on which the Commission seeks views. The issues are laid out
chronologically, in the order they arise as the CPO process progresses. Without
wishing to give priority to any of the 23 issues, the Commission considers that a
number might be regarded as being of particular importance to address. These
are: establishing the purpose of a CPO (Issue 9); the role of third party objectors
(Issue 10); the CPO notice to treat and the date when the property is valued (Issue
14)); the power of entry before payment (Issue 15); the principles and rules to be
applied to assess compensation (Issue 16); the rights of neighbouring landowners
(Issue 17); the arbitration process (Issue 18); and the consolidation of CPO
legislation (Issue 23).
The following 23 issues are addressed in the Issues Paper.
Issue 1: Guiding principles: after a brief overview of the CPO process, this issue
discusses the protection of property rights under the Constitution of Ireland and the
Council of Europe’s Convention on Human Rights and Fundamental Freedoms
(ECHR). This includes an analysis of the proportionality test used to assess
legislation, such as CPO legislation, that seeks to restrict or limit the property rights

1 Law Reform Commission Fourth Programme of Law Reform (LRC 110-2013), Project 8.
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ISSUES PAPER: COMPULSORY ACQUISITION OF LAND

of the landowner. The Commission seeks views as to whether it may be beneficial
to include a list of general principles in any future CPO legislation, which acquiring
authorities or decision-makers would have to consider when making decisions
relating to the compulsory acquisition of land.
Issue 2: What interests in land can be acquired: This issue raises the question
as to whether there should be any restriction on the land that can be acquired once
the system operates in a proportional manner. There is scope, however, to
consider operating different CPO systems based on the type of land and
landowner, as opposed to the functions of a certain acquiring authority. This
suggested approach would include modifications of the procedure for homeowners
and business owners in the event of certain hardship. This issue also explores the
possibility of altering the current systems in order to account for the compulsory
acquisition of entire plots of land, as opposed, for example, to acquiring strips of
land for a road.
Issue 3: Agreement between the landowner and the acquiring authority: This
issue asks whether there should be a legislative provision requiring the acquiring
authority to attempt negotiations before serving notice of the CPO.
Issue 4: A power to request information: This issue explores the provisions in
the Housing Act 1966 and the Planning and Development Act 2000 (the 2 most
commonly used Acts for CPO) that require an occupier to give information about
the landowner to the acquiring authority. It is an offence not to do so, or to do so in
a knowingly misleading manner. An alternative approach may be to place the onus
on the acquiring authority to carry out its own investigation of title.
Issue 5: Power to enter land to assess its suitability: this issue covers the
instances in which a representative of the acquiring authority enters on the
landowner’s land in order to perform surveys, make plans, take levels, excavate
and examine the subsoil. It is arguable that this should remain in place in order to
offset the potential disproportionate interference that could arise if an acquiring
authority acquired land without knowing that it was suitable for the proposed
purpose. The question is also raised as to whether statutory guidance should be
available to assist judges of the District Court in determining if entry should be
prohibited on any grounds.
Issue 6: Terminology: the term “compulsory purchase order” could be interpreted
as implying an element of finality and or suggesting that a sale, rather than an
acquisition, is involved. The Commission asks whether the current terminology
should be amended to “compulsory acquisition application” or “compulsory
acquisition notification” when it is sent to An Bord Pleanála and a “compulsory
acquisition order” only when it has been confirmed by the Board.
Issue 7: Advertising and notifying affected landowners: this involves sending
notices to the landowners, lessees and occupiers, and publishing a notice in a local
newspaper of the intention to CPO the land. There may be scope to alter the
timelines and, depending on the approach adopted in relation to third party