Notices and Confirmation
The local authority must give certain notices and publish details of the proposed order in newspapers. It must then submit the order to An Bord Pleanala for confirmation within six weeks.
Where a Compulsory Purchase Order has been submitted to Bord Pleanala, it may if it thinks fit, annul the Order, or confirm the Order with or without modification.
Bord Pleanala cannot confirm any Compulsory Purchase Order in so far as it relates to any land in respect of which an objection has been duly made until he has caused a hearing into such objection to be held and until he has considered such objection and the report of the person who held the inquiry, unless the objection is withdrawn, or it is satisfied that such objection relates exclusively to matters which can be dealt with by the Arbitrator.
If no objections to the order are received by the board, if objections are withdrawn or if the board is of the opinion that it may be dealt with by a property arbitrator, it so informs the local authority. The local authority may itself confirm the order. The power to self-confirm, in the absence of objections, is not available in all cases.
If there is an objection, the board must hold an oral hearing. The provisions for an oral hearing are broadly similar to those for a planning permission appeal. The former requirements for a public enquiry were replaced by an appeal to the board under the 2000 Act.
There is no statutory requirement that the Authority should inform owners the subject of compulsory purchase of the reasons for Compulsory Purchase Order or the reason why their particular property is included or what evidence the Authority has to support its decision to acquire.
However, case law has decided that acquiring Authorities must if requested give its reasons for making the Compulsory Purchase Order and why a particular Property is included in the Compulsory Purchase Order.
Duties of Board
Where under any legislation, the board is required to hold a local enquiry or public local enquiry, the Board is obliged to hold an oral hearing. An oral hearing in relation to compulsory acquisition may be heard in parallel with a hearing in relation to proposed development by a local authority (which must comply with the statutory consultation procedures under the Planning and Development Act).
Similarly, where the application for approval is made to the Board in relation to confirmation of an Environmental Impact Assessment, and there is a compulsory acquisition procedure in relation to the same development, the two may be heard in parallel by the Board.
It is the duty of the Board is to ensure that its functions are fulfilled and completed as expeditiously as possible, and to take all steps to ensure that there are no avoidable delays at any stage in the determination. The provisions of the Planning Acts in relation to time limits apply. It is an objective to ensure the matter is determined within 18 weeks of the last day for making observations.
Where it appears to Board that it is not appropriate or possible, because of circumstances to determine matters within the time limits, the Board is to inform the interested parties, including persons who have made observations and objections. The Minister may prescribe other periods for different classes and matters. The Minister may vary the requisite periods by order.
An Bord Pleanala may assign a person to conduct the hearing. At the oral hearing, the authority makes its case for the confirmation of its order. Objectors may present evidence as to why it should be rejected or modified.
The person conducting the hearing has a measure of discretion as to how it should be conducted. He may decide the manner in which evidence is presented and the order in which persons appear. Persons may be authorised to be represented. Due process is required, but the procedure need not be overly formal.
The person conducting the hearing may take evidence on oath, require the attendance of persons and the production of books, documents and information. It is an offence to fail to attend or to obstruct the hearing.
Usually, the Authority starts by saying why it wants the particular property –quoting the duties of the Authority and why the property is suitable for its needs. An Architect might give evidence to the effect that soil conditions were suitable for development etc.
The landowner may challenge on the basis of the omission of some essential step or proof, the absence of which could impel Bord Pleanala to annul the Compulsory Purchase Order. Would the Compulsory Purchase Order stand if the Owner’s land were excluded, for example, where it is on the periphery of the take?
Confirmation by Board
The board must have regard to the policies and objectives of the Government, state authorities, planning authorities and other public authorities, as are relevant. After the hearing, a report is made to the board, which includes recommendations in relation to the proposed order and the objections. The report should contain a fair account of the evidence and arguments and the appointed person’s recommendations.
The role of An Bord Pleanala in relation to the confirmation or rejection of a compulsory purchase order is broadly the same as that of the minister and inspector under earlier legislation, which was the subject of several important High Court and Supreme Court decisions. The inspector must act on the basis of the evidence before him. He must act in accordance with principles of constitutional justice.
The board must consider the report’s recommendations and determine the matter. The board need not necessarily follow the recommendations of the appointed person. It must act, however, on the basis of the report and recommendations so that it will usually adhere to the recommendations in the report.
A compulsory purchase order may only be challenged by way of judicial review. The challenge must be made within eight weeks. This time limit may be extended, but only where there is a good cause and sufficient reason. Leave or permission for judicial review is required and will be granted, only if there are substantial grounds for arguing that the decision is invalid.
Bord Pleanala in considering the objection or objections and in considering the Inspector’s report must act judicially and within the bounds of constitutional justice. It is the deciding authority and does not simply review the recommendations of the Inspector.
Bord Pleanala acts ‘ultra vires’ ( acts outside or beyond the scope of his legal power) if it comes to a conclusion or makes a decision which is not supportable upon the evidence of the materials properly before it.
Neither Bord Pleanala nor the Inspector can come to a conclusion of fact unless there is evidence upon which such a conclusion could be formed.
If the Inspector should come to a conclusion of fact and should express it, Bord Pleanala is not bound to come to the same conclusion of fact.
To enable Bord Pleanala to come to any decision, the Inspector must transmit to Bord Pleanala a report which fairly and accurately informs Bord Pleanala of the substance of the evidence and the arguments for or against the issues raised at the Inquiry by those represented at the Inquiry.
Where there is a challenge by way of judicial review, the Compulsory Purchase Order cannot become operative until the High Court makes a final ruling on the challenge.
Within 12 weeks of the order being confirmed, notification of confirmation is to be served on certain relevant parties and the decision on the order must be and published. It becomes operative, three weeks after publication and notification.
As soon as possible after Bord Pleanala has made a Confirmation Order, the Authority must publish in a newspaper, a notice in the prescribed form, stating that the Compulsory Purchase Order has been confirmed with regard to the land and state where a copy of the Compulsory Purchase Order as so confirmed and a map can be inspected and must serve a notice on all persons having an interest in the land who have objected and appeared at the Inquiry.
Within 18 months of the compulsory purchase order becoming operative, a notice to treat must be served on persons affected. The notice to treat is the exercise of the compulsory purchase powers. It is to be served on every owner, occupier and lessee of land (except tenants from month to month or less) stating that the authority is willing to treat for the purchase of his interest in the land within a certain period of (being not less than one month).
The Owner, aggrieved by a Compulsory Purchase Order which has been confirmed by Bord Pleanala, who desires to question its validity he may, not more than 8 weeks of the notice of the Board\’s decision make an application to challenge the decision by way of judicial review. The former statutory appeal was replaced in 2001.
The applicant for judicial review must have a substantial interest in the matter. This means that the person should be affected financially or otherwise by the decision. The legislation provides that there is no appeal from a judicial review to the Supreme Court unless the High Court certifies that it involves a question of law of exceptional public importance.
The grounds on which the court may quash the Compulsory Purchase Order are narrow e..g. that the Compulsory Purchase Order is not within the powers of the Act or that the interests of the applicant have been substantially prejudiced by any requirement of the act not having been complied with. It may not be based on the substantive merits of the proposal unless it is wholly irrational and therefore outside the powers of the authority.
Constitutional grounds may be considered. The most common grounds for challenging the validity of the Compulsory Purchase Order are;
- that the purposes or objectives of the Authority lying behind the acquisition are not wholly within the powers, functions and duties laid down by statute on the Authority – or that the Act does not authorise the acquisition or the objectives of the acquisition.
- that the Owner’s constitutional rights have been infringed or there has been some breach of natural justice.
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