Impact of pylons on landowners will have to be assessed in cash terms

Mon, Mar 17, 2014, 01:00

Forty years after the 1974 Kenny Report on the Price of Building Land there has yet to be a clear legislative statement on the scope of the power of compulsory purchase or on the measure of compensation for land compulsorily acquired.

Spread over 100 different pieces of legislation, the two most important of which were passed in 1845 and 1919, the law of compulsory purchase has been expanded on an ad hoc basis with little consistency between the different statutory schemes. Judicial interpretation of the statutory provisions has at times produced what, at first sight at least, appears to be unfair outcomes. Take the example of three individuals who have their homes devalued by harmful environmental effects caused by the construction and use of a motorway.

Farmer A has some of his land compulsorily acquired and the carriageway of the motorway is built on that land. He is entitled to full compensation arising from damaging impacts of the use of the motorway because the source of the environmental harm is on land taken from him.

Farmer B has no land taken. He is not entitled to any compensation though his dwelling is very near the motorway and severely impacted upon.

Farmer C has some land taken for the construction of the motorway embankment but still is not entitled to be compensated because the nuisance from the road does not emanate from the portion of his land which was compulsorily acquired (see Chadwick and Goff v Fingal County Council [2008]3 IR 166 ).

The position of Farmer B and Farmer C is apparently no better at common law under the law of nuisance because the defence of statutory authority is normally considered to be available.

However, in cases where the use of public infrastructure has a substantial impact upon property rights, it is difficult to see how the total exclusion of an entitlement to compensation can be justified solely on the basis that the environmental effects have arisen on lands that were not taken from the particular landowner.

For example, in some cases the development of a public waste disposal facility in very close proximity to a hotel, albeit under lawful authority, may have a catastrophic effect on the business of the hotel, perhaps leading to its closure. Under Article 40.3 of the Constitution, the State has an obligation to protect the property rights of individuals from unjust attack: hence the necessity to provide for compensation. While public policy considerations may come into play in defining the scope of entitlements, the fact that no land or a relatively small parcel of land may be compulsorily acquired from the hotel in the example given would appear to be inconsequential in terms of assessing the reality of the interference with property rights.

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