Farmers & Landowners -What to do when you receive a CPO?

Compulsory purchase orders (CPOs) can have a devastating effect on a family farm. In a recent article for the Irish Farmers Journal 2020 Land Report @farmersjournal I took a look at the options open to farmers

Hearing that your farm may be subject to a CPO for a new road, light rail, IDA or local authority purposes can have a devastating effect. Notwithstanding the level of compensation offered, many have no desire or wish to sell the farm and in a number of cases their ability to continue to farm the land is effectively written off.

While many can live with a few acres being taken on foot of a CPO, there are others whose lives are devastated as their farm is effectively rendered unviable. No amount of compensation will ever pay them enough.

A CPO is a process that allows authorised statutory bodies to enter and take your land or property without your consent. Compulsory purchase takes place generally to allow a public infrastructure project to go ahead for the common good.

Lands can be subject to a CPO order for a range of projects. Irish Water may need land for water pipes. EBS Networks may require land for a substation (which is separate to a wayleave agreement for cables). Local authorities may require land for housing. The IDA may seek land for industrial parks. Transport Infrastructure Ireland may seek land for roads, light rail or proposed Metro.

On smaller once-off projects, the acquiring authority may try to negotiate with the landowner before they issue a CPO. There is merit in trying to negotiate as sometimes it may be possible to reach agreement on a broader range of issues such as time and access, entry points and indeed the positioning of the lands being acquired so as to have less of an impact on the retained lands.

CPO process

The acquiring authority will identify the possible options for lands that may need to be acquired to implement the project.

On larger-scale projects such as roads, rail, etc, the acquiring authority will come up with a series of options. Following further review after public consultations, these will be reduced to a “preferred option”.

Landowners will be served with a notice by the acquiring authority and newspaper notices will be published furnishing details of the proposed CPO and putting same on public display prior to a submission to An Bord Pleanála.

The matter will go before An Bord Pleanála. An oral hearing may be held where a member of the public has a valid objection. Compensation issues are not dealt with at the oral hearing but are dealt with after the CPO order is granted.

An Bord Pleanála either grants the CPO as applied for, with amendments, or rejects it.

There is a period after the order has been made, where, in limited circumstances you can apply to the High Court for judicial review. There are strict time limits and a very high bar set by the legislation and the courts.

Appeals can be based on procedure or administrative challenges. An appeal based on an environmental concern is often a successful basis for such a challenge. There is some truth that there is a greater likelihood of a CPO order being set aside for a whorl-backed snail rather than a long-established farm family.

The acquiring authority will then serve the notice to treat on the landowners. It is at this stage that discussion about compensation and accommodation begins.

Generally, the claim for compensation will be drawn up by your valuer/chartered surveyor. In the event that agreement on compensation is reached, then the transfer of the lands will take place and the compensation paid.

If the parties cannot reach a compromise, it is open to either party to apply to the statutory property arbitrator for an arbitration hearing to assess compensation. Agreement can still be reached up to and including the hearing.

This is a formal statutory process and is governed by a range of legislation and case law to include the Arbitration Act 2010. It is very difficult to appeal the decision of the property arbitrator to the High Court due to the provisions of the 2010 act.

It is better to try to reach agreement outside the arbitration hearing process as it may allow a certain level of flexibility, which the property arbitrator may not be able to give in their final order.

In addition, the Irish Farmers Association (IFA) has rolled over the agreement with what was the National Roads Authority (NRA) – now Transport Infrastructure Ireland (TII) – which provides a more focused system for land acquisition. This provides a bonus of €3,000 for an acre if this particular route is sought. It was widely used during the “motorway boom” pre-crash and provided a more streamlined service. This, together with the mediation service, for many provided a more attractive process than the statutory property arbitration route.

It is important to note the acquiring authority can enter your lands once a notice to treat has been served and the issue of compensation and accommodation works does not have to be finalised.

We have seen several cases, eg where a motorway has been built and operated for several years, and compensation has still not been finalised for the landowner as the claim ended up going to arbitration following extensive efforts to resolve the claim.

Assessment of compensation

When negotiating compensation due under a CPO, there are a number of heads of claim to be considered:

The value of the land taken on foot of the CPO: this is the average open market price for *farmland in your area. Issues will arise on the cost of replacing the land taken – ie a plot of land of 5ha can often cost more per hectare than a block of land comprising 20ha.

Disturbance: compensation to be put in the same position as if your farm had not been subject to a CPO.

Other headings including injurious affection, damage and severance become an issue where the land has been split or severed as a result of the CPO and the value of the balance of your farm land is reduced. These head of claims can be complex to finalise to include severance.

Costs: the acquiring authority will pay all reasonable costs as part of the compensation claim. These include solicitors’ and valuers’ professional fees.

CPO is a complex and often difficult process. This, allied with the stress and fear that CPO can bring to you and your family, make it vital that you seek professional advice from a chartered surveyor/ valuer and a solicitor with expertise in this area.

If you have any queries on a CPO please contact James Staines at james.staines@staineslaw.ie or on 00353 872735934

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