Cork County Council v Sylvia Lynch and Desmond J. Boyle

JurisdictionIreland
JudgeMr. Justice Murray
Judgment Date15 January 2021
Neutral Citation[2021] IECA 4
Date15 January 2021
CourtCourt of Appeal (Ireland)
Docket NumberCourt of Appeal Record No. 2019/470

In the Matter of the Arbitration Act 2010 and in Arbitration Pursuant to the Acquisition of Land (Assessment of Compensation) Act 1919

Between:
Cork County Council
Plaintiff/Appellant
and
Sylvia Lynch and Desmond J. Boyle
Defendants/Respondents

[2021] IECA 4

Noonan J.

Haughton J.

Murray J.

Court of Appeal Record No. 2019/470

High Court Record No. 2018/400SP

THE COURT OF APPEAL

CIVIL

Jurisdiction – Property arbitrator – Point of law – Plaintiff seeking an order directing the second defendant to state a question of law in the form of a special case for the opinion of the High Court – Whether the plaintiff had established that there was a real and substantial point of law as to the jurisdiction of the second defendant

Facts: The plaintiff/appellant, Cork County Council, applied to the High Court for an order pursuant to s. 6(1) of the Acquisition of Land (Assessment of Compensation) Act 1919 directing the second defendant/respondent property arbitrator, 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. At issue was whether a property arbitrator appointed in accordance with the provisions of the 1919 Act has jurisdiction (a) to determine whether a party seeking to compulsorily acquire property pursuant to statute and the owner of that property have conducted themselves so that the former is bound to acquire less property than specified in the relevant compulsory purchase order and, if so, (b) to assess compensation for that lesser take. Allen J ([2019] IEHC 661) decided that the argument that the property arbitrator enjoyed such a jurisdiction was not ‘real and substantial’. As a result, he dismissed the application of the plaintiff for an order requiring the stating of a case presenting that question. Central to the plaintiff’s position on appeal to the Court of Appeal was the complaint that the trial Judge proceeded to decide the issue it said he sought to have stated instead of simply considering whether the issue was real and substantial.

Held by Murray J that had both parties to the case agreed that the second defendant need only determine the compensation payable in respect of a portion of the property the subject of the compulsory purchase order and notice to treat, there would have been a stateable issue as to whether the property arbitrator had jurisdiction, by virtue of that mutual consent and in a context where all the property to be valued by such agreement was comprised in the ‘take’ as originally envisaged, to issue such a valuation. Murray J held that this was not the case and was not the issue on the appeal; the issue was whether the property arbitrator had jurisdiction to hear evidence in relation to, and to determine whether, there had been either an agreement or undertaking having the effect that the plaintiff was legally required to take, and the first defendant/respondent, Ms Lynch, to cede, less of the first defendant’s property than referred to in the compulsory purchase order and notice to treat and to reach a decision as to the compensation payable in respect of that lesser take. Murray J held that these were not matters in relation to which the property arbitrator enjoyed jurisdiction, and the case that they were was neither real nor substantial. Murray J held that the property arbitrator is a creature of statute and his powers and functions arise only from the express terms of the applicable legislation or by necessary implication therefrom; he does not enjoy a wide ranging or general jurisdiction to superintend the process of compulsory acquisition. Murray J held that the legislation does not enable the property arbitrator to adjudicate upon whether there was an agreement of the kind, or an undertaking with the legal effect, contended for by the plaintiff. Murray J held that it was possible that by clear and unequivocal consent the parties could ask the property arbitrator to value less property than specified in the compulsory purchase order, but he does not have the power to determine whether there is an agreement or legally effective undertaking of the kind in issue in this case.

Murray J held that the appeal should be dismissed.

Appeal dismissed.

UNAPPROVED

JUDGMENT of Mr. Justice Murray delivered on the 15 th day of January 2021

1

. The issue underlying this appeal is whether a property arbitrator appointed in accordance with the provisions of the Acquisition of Land (Assessment of Compensation) Act 1919, as amended (‘the Act’) has jurisdiction (a) to determine whether a party seeking to compulsorily acquire property pursuant to statute and the owner of that property have conducted themselves so that the former is bound to acquire less property than specified in the relevant compulsory purchase order and, if so, (b) to assess compensation for that lesser take. Allen J. ( [2019] IEHC 661) decided that the argument that the property arbitrator enjoyed such a jurisdiction was not ‘ real and substantial’. As a result, he dismissed the application of the plaintiff for an order requiring the stating of a case presenting that question. I agree with that conclusion and would accordingly refuse this appeal against his judgment and order.

The facts
2

. The proceedings followed from a compulsory purchase order made by the plaintiff on 16 October 2009. The order (the Cork County Council N22 Baile Bhuirne Macroom (Baile Bhuirne to Coolcour) Road Development Compulsory Purchase Order 2009) identified for acquisition inter alia two parcels of property owned by the first defendant at Ballyverane, Macroom, County Cork — plot 185a.201 comprising .175 hectares and plot 185b.201 comprising .071 hectares. Plot 185a.201 was an area of the first defendant's garden including part of the main entrance to her residential property, while plot 185b.201 was a length of road between the physical boundary of the property and the median of the existing road. The total area to be acquired was thus .246 hectares.

3

. On April 7 2011 an Bord Pleanala acting pursuant to s. 51 of the Roads Act 1993, approved the road development giving rise to the proposed acquisition. On the same date it confirmed the compulsory purchase order itself pursuant to s. 76 of, and the Third Schedule to, the Housing Act 1966 as extended by s. 10 of the Local Government (No.2) Act 1960 (as substituted by s. 86 of the Housing Act 1966) and the Planning and Development Act 2000 to 2010.

4

. Section 79 of the Housing Act 1966 Act provides that where a compulsory purchase order to which the Act applies has become operative and the authority has decided to acquire land to which the order relates, it should serve a notice to treat on every owner, lessee and occupier of the land. The notice must state that the authority is willing to treat for the purchase of the several interests in the land and require each such owner to state the exact nature of the interest in respect of which compensation is claimed by him or her, together with details of the compensation claimed. Section 79(2) provides that a notice to treat served under the provision shall be a notice to treat for the purposes of the Act of 1919. A notice to treat in due compliance with these provisions was served by the plaintiff on 7 August 2013. This identified the property to be acquired in accordance with the compulsory purchase order.

5

. Following service of the notice to treat, there was some engagement between the plaintiff and the first defendant and/or her representatives. This occurred over the period between June 2014 and April 2016. The plaintiff's evidence to the High Court in these proceedings was to the effect that the first defendant requested the plaintiff to exclude the entrance to her residence from the property to be taken, and that following this request it was agreed that a revised map would be prepared in compliance with that request. In his affidavit grounding these proceedings Mr. O'Shea, the Senior Executive Engineer for the plaintiff, referred to e-mail communications between the first defendant and the plaintiff and averred that they disclosed that ‘ the parties appeared to agree a revised land take’. Mr. Kirby, the plaintiff's property advisor, averred that he was of the view from the middle of 2014 that the plaintiff had agreed to exclude the entrance to the first defendant's property from the property to be acquired by the plaintiff. The first defendant contended that she had not agreed any matter relating to the acquisition by compulsion of the lands the subject of the notice to treat, asserting that while she was willing to consider any proposal the plaintiff may have made in relation to the exclusion of the entrance to her property from the take, no reduction or diminution in the land to be acquired by the plaintiff was agreed between the parties.

6

. On the 21 November 2016 the plaintiff served a notice of entry pursuant to s. 80 of the Housing Act 1966. Thereafter (on 29 March 2017) the first defendant's agents served revised details of the compensation claimed by them in respect of the acquisition as specified in the notice to treat. On May 15 of that year, the first defendant applied to the Land Values Reference Committee pursuant to Rule 7 of the S.I No. 91/1961 Property Values (Arbitrations and Appeals) Rules 1961 (‘the 1961 Rules’) for the appointment of a property arbitrator. The second defendant (who took no part in these proceedings in either this Court or in the High Court) was nominated for that purpose by the Reference Committee on July 26 2017.

7

. The second named defendant gave directions for the delivery of a statement of claim. This was served on 4 September 2017. It set out the first defendant's claim for compensation in respect of the property specified in the...

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1 cases
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    • High Court
    • 16 July 2016
    ... ... dated the 28th of June 2019, directed Mr Boyle, nominated to act as Property Arbitration in ... who lives at Cappaghboggan, Kinnegad, County Westmeath. On the 3rd of June 2014, the ESB ... 8 Desmond Boyle was nominated to act as Property ... to the property arbitrator and then, as in Lynch , there is a clear agreement that he can have ... J.) and the Court of Appeal (Murray J.) in Cork County Council v. Lynch [2021] IECA 4 to ... ...

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