About this case:

• Citation:
  [2019] IEHC 661
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Senan Allen

The property arbitrator was nominated to hear a dispute over compensation for land acquired by a compulsory purchase order; however, before the arbitration hearing, the Council redesigned the land take. The property arbitrator ruled that he did not have jurisdiction, and refused a request to state a case on jurisdiction to the High Court.

Agreeing with the property arbitrator, Mr Justice Senan Allen said the Council had failed to establish the existence of a real and substantial point of law as to jurisdiction.

Compulsory Purchase Order

In 2009, Cork County Council made a Compulsory Purchase Order for the purpose of developing a new road from Baile Bhuirne to Coolcour.

The new road required the acquisition of land owned by the first defendant, Sylvia Lynch, which was outlined on a land acquisition map scheduled to the Compulsory Purchase Order:

• a 0.175 hectare plot comprising an area of Ms Lynch’s garden including part of the main entrance; and
• a 0.071 hectare plot comprising a length of road bed between the physical boundary of Ms Lynch’s property and the median of the existing road.

Notice to Treat

In August 2013, by Notice to Treat, the Council gave notice pursuant to s. 79 of the Housing Act 1966 that it was willing to treat for the purchase of the lands authorised to be acquired by the compulsory purchase order, and which were more particularly described in the land acquisition map which had been extracted from the schedule to the Compulsory Purchase Order and attached to the Notice to Treat.

In November 2016, the Council served notice of entry pursuant to section 80 of the Housing Act 1966, which allowed the council to take possession of the lands in advance of the conclusion of the compensation and/or conveyancing aspects of the acquisition.

Nomination of Property Arbitrator

In March 2017, Ms Lynch submitted a claim for compensation which was rejected by the Council. Thereafter, Ms Lynch applied to the Land Values Reference Committee pursuant to the Acquisition of Land (Assessment of Compensation) Act 1919 and the Property Values (Arbitration and Appeals) Act 1960 for the nomination of a property arbitrator. Property arbitrator Desmond Boyle was nominated to hear and determine questions set forth by Ms Lynch.

At a hearing before Mr Boyle in February 2018, the Council requested assessment of compensation based on a new design which excluded 200 square metres of Ms Lynch’s main entrance. The Council made an “unconditional offer” of compensation for the acquisition of the redesigned 0.226 hectares, and asserted that an agreement had been reached with Ms Lynch; however, Ms Lynch was “adamant that she never made any agreement with the Council”.

Mr Boyle doubted his jurisdiction to deal with the proposed reduced land take, and ruled that his jurisdiction arose “only as a result of the Notice to Treat were the parties have failed to agree on a figure of compensation”. He said that he could only hear evidence relating to the entire take as stated in the Notice to Treat.

Thereafter, the Council requested Mr Boyle to state a case to the High Court as to whether he was correct in his ruling on jurisdiction. Mr Boyle refused, stating that there was no point of law in question.

Cork County Council’s Application

In the High Court, the Council made an Application for an order pursuant to section 6(1) of the Acquisition of Land (Assessment of Compensation) Act 1919, to Mr Boyle to state a question of law, in the terms as set out in the special endorsement of claim or such other reformulated question as the court may deem appropriate, in the form of a special case for the opinion of the High Court.

The Council argued that the case raised a clear legal issue as to the jurisdiction of the property arbitrator. It submitted that the question of law was “seriously arguable, substantial in the sense of being important for the resolution of the dispute and to the parties, and… raised in good faith and not for the purpose of delay”.

Firstly, Mr Justice Allen considered the nomination of the property arbitrator and the statutory purpose of nomination. He said that Mr Boyle was nominated to hear and determine questions set forth by Ms Lynch, and that his jurisdiction derived from this appointment. Mr Justice Allen said there was no basis for this to “extend to any question other than the questions he was appointed to hear and determine, a fortiori any question that might arise after his appointment”.

The Council submitted that the property arbitrator’s jurisdiction is triggered by service of the Notice to Treat, however, Mr Justice Allen disagreed, stating that the Notice to Treat triggers a claimant’s entitlement to apply for the nomination of a property arbitrator.

Mr Justice Allen said that the property arbitrator’s jurisdiction derived from the Acquisition of Land (Assessment of Compensation) Act 1919, and conferred by the Land Values Reference Committee. This, he said, was “the fount of the property arbitrator’s jurisdiction”.

Mr Justice Allen then considered two UK cases (Simpsons Motor Sales (London) Limited v. Hendon Corporation [1964] AC 1088 and Fox v The Scottish Ministers [2012] CSIH 32) which the Council argued were “persuasive authority” of there being a “real and substantial point of law to be determined”. However, Mr Justice Allen said they were irrelevant because the jurisdiction of Mr Boyle was confined to the question of disputed compensation arising before his appointment.

Stating that the “jurisdiction of the property arbitrator does not extend to the assessment of the value of any modified, varied or reduced area of land” and “still less to the determination of disputed questions as to whether the reduction was made with the agreement of, or at the request of, or with the acquiescence of the landowner”, Mr Justice Allen concluded that the Council had not established the existence of a real and substantial point of law as to jurisdiction and refused the application.