Buying up land for Luas was a difficult and sometimes legalistic business, writes John Morley

Taking the Luas last week on the green line from St Stephen's Green to Sandyford was a personal journey of achievement, which started nine years ago when I first advised a client who owned part of the former Harcourt Street railway line.

Negotiations followed with CIÉ for the sale of the land to them but a deal could not be agreed at that time. Later I was asked for advice by other owners with the result being that I finished up acting for 11 owners who between them held around seven hectares (17 acres) along the route. The formal compulsory purchase procedures for the sale of the lands to the Light Rail Project Office (now the Railway Procurement Agency) commenced in February 2000.

Most of the cases are now resolved with the sale of the seven hectares to the Railway Procurement Agency for compensation of over €28 million. More than €1 million in compensation for cases on the red route from Connolly to Tallaght brings the total compensation dealt with by the Hamilton Osborne King compulsory purchase team for the Luas to almost €30 million. As well as private individuals our clients included four schools, retail outlets, a charity and a statutory body.

Negotiating with the Railway Procurement Agency wasn't a quick or easy process. When we finally succeeded in engaging the agency in negotiation, the levels of compensation on offer proved in most cases to be unrealistic and lower than the market value levels on which compensation is based.

In order to achieve a fair level of compensation for the clients we were forced to refer five of the 11 cases to arbitration. This is a very high proportion of arbitrations. In other compulsory purchase schemes (mainly roads and motorways), which we also handle, reference to arbitration is relatively infrequent.

Compensation for land taken by compulsory purchase is based on market value. Owners are meant to receive the amount they could have realised if, instead of being compulsorily acquired, they had been free to sell their property on the open market.

In addition, owners are entitled to compensation for what is known as injurious affection. This is the reduction in value to other adjoining land in their ownership caused by the loss of the land being compulsorily acquired. Circumstances in which this happen vary greatly but can, for example, include the loss of a scenic view from other land in the same ownership or if the acquired land is put to a very noisy or otherwise noxious use.

Finally, the owner being compulsorily acquired is entitled to compensation for any interruption to business or domestic activities. This is known as disturbance. A trader may suffer from reduced levels of turnover during and after the construction works but, to be claimable as compensation, any losses must arise from the loss of the land being acquired from him or from the use to which the acquired land is put.

The complexity of compulsory purchase compensation assessments can be judged by the fact that each of the five arbitrations took a minimum of four days with two of the hearings lasting over a week. With senior counsel and town planning, engineering and other experts involved in addition to the valuers, the costs of arbitration can be substantial, particularly if they last any length of time. These costs are normally the responsibility of the acquiring authority.

There are many ways in which the compulsory purchase procedures can be improved with one being to make the whole process much more user-friendly and understandable to the owner being compulsorily acquired.

Once a scheme involving compulsory purchase is authorised, an owner can expect to receive what is known as "Notice to Treat". This is a formal legal notice, which requires the owner to confirm and give details of his ownership of the property and to submit his claim for compensation. This is the stage at which many owners feel vulnerable and in need of guidance as to what they should do and as to what happens next.

In many financial transactions, such as those dealing with share ownerships, insurance policies or even paying income tax, there are usually guidance notes concerning a person's rights and liabilities and a warning given that the matter should be referred as soon as possible to a professional adviser. Sometimes there are step-by-step instructions. Not so when it come to compulsory purchase.

Whilst there may occasionally be a recommendation to seek professional advice, no guidance is ever given to an owner as to his rights and neither is there any type of explanatory guide explaining the whole process. Even a standardised form on which the affected owner can set out his compensation claim would be of great assistance.

Several years ago Hamilton Osborne King produced a brief guide to the whole process and copies of these were sent out to the Department of Local Government and the Environment.

I see the Luas as a very welcome addition to the city's infrastructure. With its links to high people usage locations, such as Tallaght town centre, the city centre and the new Dundrum town centre, as well as the hospitals at Tallaght and St James and several schools along the route, it should be able to remove a considerable amount of traffic from the streets.

Other major infrastructural schemes on which the Hamilton Osborne King compulsory purchase team have been engaged are the M50 and the Dublin Port Tunnel. Since the mid 1980s we have negotiated sales to the Dublin local authorities of extensive sections of the M50.

While some cases were referred to arbitration, the vast majority were settled by negotiation. Again, there was a variety of clients involved, including several private individuals as well as three schools, a religious order, three development companies, a cemetery, and a golf club.

Compensation settlements in the Dublin area negotiated by Hamilton Osborne King or awarded to them at arbitration within the last three years now total €100 million.

In Cork, the Hamilton Osborne King compulsory purchase team is headed up by director Isobel O'Regan. Here, the firm acts on the other side of the fence and has represented Cork County Council in several recent schemes. These include the Ballincollig and Glanmire / Watergrasshill bypasses where 134 hectares (332 acres) were acquired by the County Council.

John Morley is director of the professional services division with Hamilton Osborne King