4.1 Compulsory acquisition of land

In 2015, the Commission began work on its project on compulsory acquisition of land (4th Programme of Law Reform, Project 8). This project will involve the consolidation, clarification and reform of the rules and principles on compulsory acquisition of land. The current process is considered unnecessarily complex, lengthy and costly and the purpose of the project would be to put in place a fair, effective and efficient system. 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 electricity, railways, roads or other matters. In addition, much of the relevant legislation predates the foundation of the State, including the Lands Clauses Consolidation Act 1845, the Railways Clauses Consolidation Act 1845 and the Acquisition of Land (Assessment of Compensation) Act 1919. Among the matters included in the project will be:

• simplification, consolidation and codification of the law;
• the principles for the assessment of compensation on the acquisition of land or interests in land;
• time limits for implementation of a CPO; and
• submissions from third parties whose land is not being acquired.

The Commission published an initial Issues Paper on aspects of this project in 2017.  The Paper examines 23 issues on CPO law and seeks the views of interested parties on all those issues.  Among the issues examined in the Commission’s Paper are the following:

When the property is valued and the equivalence principle: this issue discusses the date to be used to put a value on the property that is compulsorily acquired. Currently, the property might be valued some years before the date when the compensation payment is actually made. This could result in injustice either to the State (if property prices plummet in the meantime) or to the landowner (if property prices go up). One option would be to say that the main principles would be to put the landowner in the same position, so far as money can do, as if the CPO had not happened (the equivalence principle) of that valuation and payment should happen at the same time.

The general principles and rules to be applied to assess compensation: this issue analyses the principles and rules governing the arbitration assessment, many of which were enacted in 1919. There are 5 main headings under which compensation may be determined: market value, disturbance, damage, severance and injurious affection. Disturbance promotes the principle of equivalence, reimbursing the landowner for incidental financial losses incurred as a result of the CPO. A drop in land value due to the severance of land, such as faming land, is also considered. Injurious affection covers the drop in value of the land as a result of the development itself. Currently, neighbouring landowners cannot get compensation under this heading, and the Commission asks whether this should remain the law.

The arbitration process: currently, a single arbitrator usually determines CPO compensation. The Commission asks whether this should be reformed along the lines recently enacted in the Minerals Development Act 2017, which involves a 3 person panel, comprising 2 property arbitrators and a legal professional.

Establishing the purpose of a CPO: this issue considers the purpose for the CPO stated by the acquiring authority in making a CPO. The “particular purpose” required for a CPO has been interpreted as meaning a general statutory purpose, such as “housing” or “motorway.” This can result in a lack of specificity, which is relevant in terms of making a substantial objection to a CPO or deciding the level of compensation. The Commission’s Paper therefore asks whether a more specific purpose should be specified when a CPO is first applied for.

Role of third party objectors: this issue discusses the objection procedure where An Bord Pleanála decides whether or not to confirm a CPO. It asks whether objections that are based on hardship should be taken into consideration, especially in relation to more vulnerable members of society. It also asks whether the opportunity to object should be extended to third party objectors, including how costs incurred by a third party objector as a result of seeking independent expert opinions should be dealt with.

Consolidation of CPO legislation: this issue asks whether the current 70+ statutory powers to compulsorily acquire land, some of which are grounded in legislation from the mid-19th century, should be consolidated into a single CPO Bill, together with any reforms that may emerge from the Commission’s examination of CPO law, and whether this would facilitate a more accessible and efficient CPO process.

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