The National Roads Authority – Going Places
Compulsory Purchase Order Procedures and Compensation for National Road Schemes
The National Roads Authority - an Overview of the Authority’s Roles and Functions. The National Road Needs Study. Other Booklets in this Series published by the National Roads Authority include: National Roads Improvement Programme and the National Development Plan 2000 - 2006. National Road Project Planning. Public Private Partnerships. Road Safety. ITS (Intelligent Transport Systems).
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Compulsory Purchase Order Procedures and Compensation for National Road Schemes
It is frequently the case that local authorities are not in a position to acquire, by agreement, land needed for construction of national road schemes. Accordingly, they use their powers of compulsory acquisition of land through a statutory process known as a Compulsory Purchase Order (CPO) and so ensure that all necessary lands are available when The law, in relation to compulsory purchase of land for the provision of infrastructure, seeks the attainment of the common good in the context of the rights of individuals to the ownership of property. a contract for construction is placed. In the absence of the CPO process, the unwillingness of a single landowner to agree terms for the sale of land would delay indefinitely the construction of a road scheme or other public works project. CPOs offer the additional advantage of bringing certainty to the local authority title in respect of the lands concerned where difficulties arise in establishing legal ownership.
Should An Bord Pleanála confirm CPOs, local authorities will make every effort to reach agreement with landowners on the compensation to be paid to them. Compensation legislation specifies that payments must relate to the market value of the land, severance, injurious affection and disturbance. In the absence of agreement between both parties the CPO process provides a mechanism to determine compensation through recourse to an independent arbitrator.
Historical and International Background The power of public bodies, such as local authorities, to acquire land compulsorily has deep historical roots as can be seen in the work of the Wide Streets Commissioners in Dublin who used these powers in the 18th century to construct a roads infrastructure which facilitated the orderly development of Dublin at that time. Canals and railways of the nineteenth century would not have been built without the power to compulsorily acquire land. Compulsory purchase powers exist in many countries.The foundation piece of legislation for land acquisition in this country is the Land Clauses Consolidation Act 1845 which is also applicable in England and Wales. In France, during the nineteenth century, Baron Hausmann used compulsory purchase powers to construct the boulevards of Paris. Indian case law made an important contribution to our understanding of the basis on which compensation, for land compulsorily acquired, must be determined.
Balance between Public Good and Private Rights The law, in relation to compulsory purchase of land for the provision of infrastructure, seeks the attainment of the common good, in the context of the rights of individuals to the ownership of property. The Irish Constitution of 1937, while recognising and validating the right of private ownership, equally recognises the social context of this right.The rights to property ownership are protected, in par ticular, in ar ticles 40.3.2, 43.1.1 and 43.1.2. In ar ticle 40.3.2 we find that “The State shall, in par ticular, by its laws protect, as best it may from unjust attack and in the case of injustice done, vindicate the life, person, good name, and proper ty rights of every citizen”. Article 43.1.1 provides that “The State acknowledges that man, in vir tue of his rational being, has the natural right, …. to the private ownership of external goods”. Article 43.1.2 provides that “The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath and inherit proper ty.” The rights to private ownership are tempered by ar ticles 43.2.1 and 43.2.2. of the Constitution. Article 43.2.1 provides that “The State recognises, however, that the exercise of the rights” (in relation to property) “ought, in civil society, to be regulated by the principles of social justice” and under article 43.2.2 “The State, accordingly, may as occasion requires, delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good.” Detail in C.P.O. Before making a CPO for a road proposal, a local authority engages in extensive consultation with the public in arriving at a preferred route for the proposal. Preliminary design is carried out so that the exact line of the road can be ascertained. Ownership and occupation of property/land along the line of the road proposal is investigated with a view to notifying the relevant people at the stage when the CPO is being made. The Compulsory Purchase Order for road schemes consists of a map or series of maps showing, outlined in red and coloured grey the lands to be acquired together with a schedule which gives details of ownership of property/land and, where appropriate, lessees and occupiers. Details are given where it is proposed to extinguish public rights of way after acquisition of the relevant land. Part of a schedule describes, if appropriate, land coloured pink on the map consisting of house(s) unfit for human habitation and not capable of being rendered fit for human habitation at reasonable expense. For motorway schemes, the plots which it is proposed to acquire are coloured blue and there are many more schedules than is the case for ordinary road schemes. The first schedule gives details of the land or substratum of land which the local authority proposes to acquire compulsorily while the second schedule outlines the rights in relation to land which it is proposed to acquire.
The third schedule describes any public and private rights of way which it is proposed to extinguish after acquisition of the relevant land.The fourth schedule describes land in relation to which it is proposed to prohibit, close, stop up, remove, alter, divert or restrict all or any means of direct access to or from the proposed motorway.This is done primarily for road safety reasons. The last two schedules of a motorway scheme describe planning permissions which it is proposed to revoke or modify and service areas, if any, proposed to be provided in relation to the planned motorway. Inspection and Right to Object After the Compulsory Purchase Order for a road or motorway scheme has been made, notice of the making of the Order is published by the local authority concerned in at least one newspaper circulating in the area where it is proposed to acquire the land. In addition, individual property owners are informed of the making of the CPO and of the land which it is proposed to acquire from them. The map and schedules go on display in the offices of the local authority for a period of not less than one month and persons who have an interest in the land, the subject matter of the Order, have a period of not less than two weeks after the end of the period for inspection within which they can object to An Bord Pleanála (The Board) in relation to the CPO scheme. In road schemes where no objections are received by the Board or any objection received is subsequently withdrawn or the Board is of the opinion that the objection received relates exclusively to matters which can be dealt with by a property arbitrator, i.e. compensation, the Board will inform the local authority which can then confirm the Compulsory Purchase Order.
In the case of all motorway schemes and road schemes where objections have been made and not withdrawn or deemed to relate only to issues other than compensation, the scheme will not be approved or confirmed by the Board until an oral hearing is held into all matters relating to the scheme. Following the oral hearing the Board may approve/confirm the scheme with or without modifications or may refuse to approve/ confirm the scheme. The decision of the Board is published in at least one newspaper circulating in the area to which the CPO or motorway scheme relates.The scheme becomes operative three weeks after publication of the notice and the local authority is then entitled to start the process of acquiring the relevant land and of extinguishing, where appropriate, public rights of way after the relevant land has been acquired. An application for judicial review of the decision of the Board may be made to the High Court within eight weeks of the date of publication of the notice of confirmation of the scheme by the Board.
Notice to Treat - Taking of possession - Payment of compensation Following approval/confirmation of a scheme, the process of acquiring and taking possession of the land can begin. The local authority, within eighteen months of the scheme becoming operative, serves a notice to treat on the persons having an interest in the land.The significance of the notice to treat can best be seen in the quotation from Justice Henchy in re: Green Dale Building Company: “Generally speaking, the ser vice of a notice to treat confers on the acquiring authority the right to acquire the land on the payment of the proper compensation which is to be assessed, if necessar y, by the property arbitrator; and it confers on the landowner the right to have the compensation assessed and paid. The ser vice of this notice to treat does not, of itself, pass any estate or interest in the land to the acquiring authority, nor does it constitute a contract; but it creates a relationship which ripens into an enforceable contract when the compensation has been either agreed by the parties or assessed by the arbitrator”. Following service of notice to treat the local authority can serve a notice of entry, which after fourteen days, allows the local authority to enter and take possession of the land described in the C.P.O even though compensation may not have been agreed at that stage.The local authority is liable to pay interest on the compensation sum for the period between entry on the land and compensation being paid. 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.
Severance occurs where the loss of part of a property/ landholding reduces the value of the part retained. For example, the acquisition of a strip of land through a farm for a new by-pass road may make the farm less attractive as a unit and affect the viability of the farm business due to increased working costs and inconvenience. 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. Disturbance concerns any other allowable loss sustained or expenses incurred by an owner as a result of the compulsory acquisition of land. Examples would include costs of seeking and acquiring alternative proper ty. 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 par ties, 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. Individuals who have an interest in land which is not the subject of planning permission or zoned for open space, commercial, residential, industrial or recreational purposes are entitled to have the terms of the agreement of December, 2001, entered into by the Department of the Environment and Local Government, the Irish Farmers Association and the National Roads Authority, applied in respect of their land. Please consult the agreement and the related code of practice for the relevant details.
Conclusion The process of acquiring land compulsorily is not exercised lightly by local authorities and is subject to the full rigours of the law.The Authority and local authorities fully recognise the concerns and difficulties faced by individual landowners by the decision to provide a road for the common good. Each local authority operates a liaison service for affected landowners and this facility should be used to eliminate uncertainty and fear.Through the liaisons facility and the statutory process involved in making a C.P.O., the Authority and local authorities are committed to the provision of a quality service to people whose land is being compulsorily acquired.