Steps in Standard CPO
Summary of steps in a compulsory acquisition under standard procedure.
- Identification of the empowering statute after establishing the objects for which the land is required
- Making Compulsory Purchase Order by Local Authority after identification of land and its Owner.
- Service of Notices by the Authority and publication in the press.
- Lodgement of objections.
- Local inquiry – if objections are made.
- ord Pleanala’s decision – confirmation with or without alteration.
- A possible challenge in the High Court.
- Compulsory Purchase Order becomes operative.
- A decision to serve and service of Notice to treat.
- Notice of Entry – entry.
- Preparation and lodgement of claim.
- Agreement on claim.
- If disagreement on claim, steps to appoint a Property Arbitrator by either (i) the Local Authority or (ii) the Land Owner.
- Service of Notice by Local Authority
- Arbitration hearing
- Arbitration award
- Taking title
- Payment of the Award, Costs etc
Local authorities and compulsory acquisition
Legislation in various sectors and of differing vintage provides specific powers to acquire land compulsorily. The most commonly used power is that provided for in the Housing Act 1966 as amended by the Planning and Development Act 2000. This modern power applies to most acquisitions, whether for housing, planning or other purposes and is the most commonly encountered type of compulsory acquisition procedure.
Local authority (in common with many other public authorities) may acquire land permanently, or temporarily. It may acquire rights over land such as easements, rights of way and rights for services. It may restrict or interfere with land permanently or temporarily. It may acquire substrata in land. It may acquire water and water rights.
Local authorities have powers to acquire land compulsorily, in certain circumstances. The compulsory acquisition must be for purposes authorised by law. The 2000 Act reforms allowed greater flexibility, allowing local authorities to acquire land for a broader range of purposes and to the use land acquired for one purpose, for another statutory purpose.
The power to compulsorily acquire land must have a clear basis in law. There is a constitutional right to own and enjoy private property. The forced sale of property must, therefore, be strictly justified. The compulsory acquisition order itself should recite the legal authority on which it is based. The order typically incorporates standard statutory terms, which take effect as if it they had the direct power of law.
In the nineteenth century, a compulsory acquisition was usually effected by private act of Parliament. Over time, various utility and other undertakers were authorised to acquire lands. Because of the volume of private acts, the Land Clauses Consolidation Act was enacted in order to set out standard clauses for incorporation into private acts. The terms of the act were incorporated in and became part of the private act. Under modern practice, the clauses are deemed to be incorporated in the compulsory purchase order, even though the specific purchase order is not the subject of an act.
The standard (Housing Act) procedure provides for compulsory acquisition being by means of a compulsorily purchase order made by the Authority and submitted to and confirmed by Bord Pleanala in accordance with the provisions contained in the Third Schedule of the Housing Act.
The Compulsory Purchase Order
The Compulsory Purchase Order shall be in the prescribed form and shall describe by reference to a map the land to which it relates. Once the Compulsory Purchase Order is made, it must be submitted to An Bord Pleanala for confirmation (with or without modification).
There is a specified notice procedure before submitting the Compulsory Purchase Order to Bord Pleanala. The Authority shall
• publish in one or more newspaper circulating in their functional area a notice in the prescribed form stating the fact of such an Order having been made and naming a place where a copy of the Order and of the map referred to therein may be seen, and
• serve on every Owner of any land to which it relates a notice in the prescribed form stating the effect of the Order and that it is about to be submitted to Bord Pleanala for confirmation and specifying the time within which and the manner in which objection can be made thereto.
Where a compulsory purchase order is made in respect of the acquisition of land by a local authority iand—
- no objections are received by the Board or the local authority, as the case may be, within the period provided for making objections,
- any objection received is subsequently withdrawn at any time before the Board makes its decision, or
- the Board is of opinion that any objection received relates exclusively to matters which can be dealt with by a property arbitrator,
the Board shall, where appropriate, inform the local authority and the local authority shall, as soon as may be, confirm the order with or without modification, or it may refuse to confirm the order.
This does not prejudice any requirement to obtain approval for a scheme in accordance with the Roads Act, 1993, or proposed road development under the Planning Act. It does not apply with respect to a compulsory purchase under the Derelict Sites Act.
The Law Reform Commission paper on the compensation requirements of the European Convention on Human Rights and the Constitution summarise the law as follows.
In any decision regarding the compulsory acquisition of land, the following shall be considered:
- Every natural and legal person has both the general right to property and the right to own, use and control specific possessions.
- These rights may be controlled or delimited, in particular, in the following circumstances –
(i) the acquiring authority may interfere only where it is in pursuit of a legitimate aim which seeks to further the common good and not solely private interests;
(ii) the means by which the legitimate aim is achieved must be rationally connected to the aim pursued and must not be
arbitrary, unfair or based on unreasonable considerations;
(iii) the interference must be proportionate, whereby the means by which the legitimate aim is achieved must extend only insofar as is necessary to achieve the aim; and
(iv) the interference must arise from a pressing social need.
- The conduct and if appropriate, personal circumstances of the landowner.
- The nature of the land to be sought to be acquired, to include consideration such as –
(i) the amount or portion of the land being acquired;
(ii) the purpose for which the land is currently being used;
(iii) the specific suitability of the land in order to achieve the specific purpose for which the land will be used.
- The public interest in upholding the integrity of the planning and development system.
- In determining the level of compensation following a CPO, regard shall be had, in particular, to the principle of equivalence and the restoration of the landowner’s original position.