Re Green Dale Building Company

JurisdictionIreland
CourtSupreme Court
Judgment Date13 May 1977
Docket Number[1976 No. 143 SS.]
Date13 May 1977
In re Green Dale Building Co.
In the Matter of the Dublin County Council Compulsory Purchase (Bray Road Improvement) Order, 1968— Green Dale Building Company Limited
Claimant
[1976 No. 143 SS.]

High Court

Supreme Court

Compulsory acquisition - Compensation - Assessment - Relevant date - Service of notice to treat - Two notices served - One served before compulsory purchase order became operative - Waiver - Estoppel - Housing Act, 1966 (No. 21), s. 79.

Section 79, sub-s. 1, of the Housing Act, 1966, provides that where a compulsory purchase order is made and confirmed under the Act and "has become operative,"and the housing authority decide to acquire the land to which the order relates, the authority shall serve on the owner of the land a notice to treat; and s. 84 of the Act provides that the compensation payable to the owner in respect of the land being Acquired shall be the value thereof at the time when the relevant notice to quit was served, as assessed in accordance with that section.

A housing authority made a compulsory purchase order affecting (inter alia) the lands of the claimant, and the order was duly confirmed in August, 1972. On the 14th December, 1972, the housing authority served on the claimant a notice to treat. Meanwhile, a third party had applied to the High Court for a declaration that the compulsory purchase order was invalid; and on the 7th April, 1975, the High Court dismissed the application, whereupon the compulsory purchase order became operative pursuant to s. 79 of the Act of 1966. On the 14th April, 1975, the housing authority served on the claimant a second notice to treat. The value of the claimant's lands in 1975 was less than it had been in 1972. Relying upon the validity of the first notice, the claimant had arranged for a property arbitrator to be appointed to assess the compensation payable to the claimant, and the claimant contended that, by waiver or estoppel, the housing authority had lost the right to rely on the invalidity of the first notice to treat. The arbitrator stated a Case for the opinion of the High Court and asked whether the date of service of the first notice to treat or the date of service of the second notice to treat was the relevant date for the purpose of s. 84 of the Act of 1966.

Held by McMahon J. and affirmed by the Supreme Court (Henchy, Griffin and Kenny JJ.) that the date of the service of the second notice to treat was the relevant date for the purpose of s. 84 of the Act of 1966 as the housing authority had no power to serve a notice to treat before the compulsory purchase order became operative, and that the absence of such power could not be counteracted by the application of the doctrines of waiver and estoppel.

Minister of Agriculture and Fisheries v. Matthews [1950] 1 K.B. 148 considered.

Case Stated.

The Case was stated by Mr. Owen MacCarthy who was the property arbitrator nominated by the Land Values Reference Committee as arbitrator between the claimant and Dublin County Council. The facts have been summarised in the head-note and they appear in the judgments, infra. The Case was heard by the High Court (McMahon J.) on the 26th May, 1976.

The claimant appealed to the Supreme Court against the judgment and order of the High Court. The appeal was heard on the 24th and 25th January, 1977.

Cur. adv. vult.

McMahon J.

24th June, 1976

This is a case where the value of land which is subject to a compulsory purchase order has been falling since the order was confirmed in 1972, thereby giving rise to a dispute as to the proper time for assessing the owners' compensation. In this case, as in In re Murphy1, the acquiring authority served two notices to treat and the question arises as to which of these notices is the valid notice by reference to the date of which the value of the land is to be assessed in accordance with the provisions2 of s. 84, sub-s. 1(b), of the Housing Act, 1966.

The facts giving rise to the dispute are set out in the special case stated by the arbitrator for the opinion of the Court, and I need refer to them only briefly. The compulsory purchase order was made under the provisions of the Act of 1966 on the 19th November, 1968, and was confirmed, with amendments, on the 25th August, 1972. Notice that the compulsory purchase order had been confirmed was duly published pursuant to s. 78, sub-s. 1, of the Act of 1966 and under sub-s. 2 any person aggrieved then had a period of three weeks to question the validity of the order by proceedings in the High Court. On the 20th October, 1972, proceedings were duly instituted in the High Court by special summons by William Fuller and Holiday Motor Inns Ltd. who were the owners of property affected by the compulsory purchase order. In those proceedings the applicants claimed a declaration that the order was invalid in its entirety or, alternatively, that it was invalid in so far as it affected the property of the applicants. The present claimants did not question the validity of the order.

On the 14th December, 1972, the acquiring authority served on the claimants what purported to be a notice to treat pursuant to the provisions of s. 79 of the Act of 1966. The claimants' case is that the compensation payable for the lands being acquired is to be based on the value of the land at the time when this notice was served. The acquiring authority contend

that it is not a valid notice under s. 79, sub-s. 1, because, by reason of the pending proceedings in the High Court, the order had not become operative. On the application of the acquiring authority, the High Court on the 10th February, 1975, made an order under s. 78, sub-s. 2(a), suspending the operation of the compulsory purchase order in so far only as it affected the property of the applicants in those proceedings. On the 7th April, 1975, those proceedings were dismissed by an order of the High Court made on consent. On the 14th April, 1975, the acquiring authority served a second notice to treat on the claimants.

In the meantime the claimants had applied to the Land Values Reference Committee on the 31st May, 1974, to nominate an arbitrator between the claimants and the acquiring authority; and the committee nominated Mr. Owen MacCarthy to be such arbitrator by an order dated the 18th June, 1974. The arbitrator sat on the 18th April, 1975, and adjourned the arbitration hearing to the 13th June, 1975. In the meantime the acquiring authority secured the further appointment of the same arbitrator from the Land Values Reference Committee in case the original appointment should be considered invalid.

The claimants advanced three grounds in support of their contention that the value of the lands for the purpose of determining compensation should be taken at the time when the first notice to treat was served. The first contention was that the earlier notice to treat was a valid notice under s. 79, sub-s. 1, of the Act of 1966 because the Act does not contain provisions invalidating a notice to treat served before a compulsory purchase order has become operative. The relevant part of s. 79, sub-s. 1, is as follows:— "Where a compulsory purchase order made and confirmed under this Act has become operative and the housing authority decide to acquire land to which the order relates, the authority shall serve a notice (in this Part referred to as a notice to treat) on every owner . . ."

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