Posts Tagged ‘CPO’

Dealing with the CPO process

Saturday, August 21st, 2010

Irish Farmers Journal

By Richard J Rea

Up until recently, it was a foregone conclusion that the county council got their own way with the issuing of a CPO.

However, the lock-out of lands by landowners in 2000/2001 by the IFA resulted in a realisation, that landowners had rights and that legislation introduced in the time of the landlords was not a suitable procedure to use in a modern age. Arising from this background and the development of partnership talks with the Government, the December 2001 agreement between IFA/DOE/NRA arose. However, there was no change in the CPO legislation.

Prior to this agreement, the IFA recommended valuers who became involved in the CPO process, had been challenging the proposed designs to agree accommodation works which would relate to access, drainage, relocation of farm buildings and other design issues.

However, around this time, a new method of constructing roads was being developed known as ‘Design and Build’. This involved the local authority selecting up to five or six contractors and these selected contractors submited a price to design and build the road. The advantage to the State of this procedure is that the price is fixed and will generally be completed within time.

The disadvantage from the householders and property-owners’ point of view is that the final product could differ substantially from what was in the preliminary design, and due to the manner in which some roads are built, a more accurate description would be ‘Build and Design’.

Compulsory purchase orders have recently been issued on:

•N20 Cork to Patrickswell

N22 Adare bypass

N2 Slane bypass (part of Dublin to Derry route)

When a CPO is issued, it is generally accompanied (if it is a large project) with an Environmental Impact Statement – known as an EIS.

The information to be included in the EIS is stipulated in Article 3 the EIA Directive 85/337/EEC as amended by 97/11/EC and 2003/35/EC/EEC which states:

‘The information to be provided by the developer in accordance with paragraph one shall include at least:

—A description of the project comprising information on the site,

Design and size of project,

— A description of the measures envisaged in order to avoid, reduce

And, if possible, remedy significant adverse effects,

The data required to identify and assess the main effects which the project is likely to have on the environment,

An outline of the main alternatives studied by the developer and an

Indication of the main reasons for his choice, taking into account the environmental effects,

A non-technical summary of the information mentioned in the previous indents.

The EIS will contain a ‘draft design’ of the road.

Weakness

The weakness of these ‘draft designs’ is exactly that – they are draft designs and it is the contractor who will decide what is finally built, with little control from the local authority and no control by the person whose land is being acquired.

The EU Commission has queried the ‘draft design’ as it believes that this is contrary to ‘a description of the project comprising information on the site, design and size of the project, as it is not possible to supply information on the design when that has not yet been designed.

Affected property owners will be told at oral hearings that the road will be designed to NRA standards and subject to road audits at various stages.

An example of NRA poor design standards can be seen on local roads where there are embankments and minimum lengths of crash barriers. Such examples can be seen on new roads, where there are embankments leading to bridges over a motorway.

Such designs are, I consider, highly dangerous and likely to guarantee serious injury or a fatality in various parts of the country, sooner rather than later.

By the time the CPO is issued, the road location has been settled on. Underpasses and over-bridges have also been largely determined.

Property owners are entitled to recover their costs to protect their position. However, costs are legally only due from date of notice to treat, which is generally in the future – up to 18 months after the road is confirmed by An Bord Pleanála.

Thus, property owners need to have engaged their agricultural consultant/valuer well in advance of the issue of the CPO.

I consider the system is flawed in that the position pre-issue of CPO is shrouded in semi-secrecy, with no encouragement of landowners to engage competent CPO consultants by the acquiring authority.

The Environmental Impact Assessment (EIA) is meant to be a process where the affected property owners are consulted over a number of years in the process required to prepare the environmental impact statement.

This is to avoid elementary mistakes, such as drains running uphill, being part of the design.

It is beyond comprehension as to how a meaningful consultation can occur when a number of people meet a property owner to consult with him in relation to draft design. This often happens in circumstances where the property owner is not encouraged to get professional advice and where it is not unusual to remove the draft design from the property owner after the alleged consultation.

I wish to point out that certain county councils and their designers have a positive pro-active approach, but, regretfully, a large number still have an 18th century attitude.

There is a major advantage of the local authority having a pro-active approach as this results in identifying problems at an early stage and an improved design or decision to resolve the problem being made.

An example of this that I have seen on many occasions involves private dwellings – where roads are put very close to a house, when the correct decision would be to remove the house or design the road differently.

Where houses are removed, there is no guarantee that the local authority will give planning permission for a new house on the same property. I am aware of one location where the local authority refused planning permission, despite the same local authority having issued a CPO on the private dwelling.

Consultation without real information is a total waste of time. It is a joke.

Thus, you can see that where a CPO is currently in the process of being issued on a property, payment could take up to five or six years.

It is clear from this long, drawn out process, that the property owners should retain consultant valuers who are well experienced to represent them and defend their position. The only time after the issue of the CPO. that they may be able to influence the design of the scheme will be in the oral hearing.

Irish Farmers Journal: Bypassing a farmer

Tuesday, May 27th, 2003

Irish Farmers Journal

By Mairead Lavery

It’s almost two years since we reported on young dairy farmer Donal Norris from Fiddown in Co. Kilkenny. At the time, the Piltown/Fiddown bypass was under construction and Donal was having difficulties with Kilkenny County Council over access to land, drainage and safety features of the new road. He was worried about the safety of his children and feared the new road would make his farm unworkable. Unfortunately his fears have come true.

Agreement ‘being ignored’

Last December the IFA agreed a new compensation package for landowners affected by Compulsory Purchase Orders for road-building schemes under the National Development Plan. Compensation for land is to be based on equivalent values for a similar piece of land in the same area. In addition, a per acre good-will payment will be available to landowners who co-operate fully with new road plans. Time frames for different notices, responses and payments were also agreed.

A letter from Michael Egan of the NRA dated January 7, 2001 says that all agricultural land under Compulsory Purchase Order (CPO) where compensation had not been determined by December 10, 2001, comes under the new IFA deal. The letter, which was circulated to county and city managers, adds that the deal also applies to landowners who are considering offers of compensation as well as landowners whose cases have been referred to arbitration.

This position was confirmed by Minister for the Environment, Noel Dempsey, in a written reply to Dail questions on the on the April 17, 2001.In it he said the NRA and local authorities would seek to facilitate landowners who chose to rely on the agreement.

However, Kilkenny County Council does not appear to be following this line. At a meeting of the council in late March, Donal Norris’s decision to withdraw from arbitration and seek compensation under the new agreement was greeted with scorn. The following comments of County Manager PJ Donnelly were reported in the Kilkenny People on March 29: ‘‘Now there is a request to go back to the IFA loop, and if this does not satisfy Mr Norris, as five previous agreements did not satisfy him, will we go back to arbitration again. It’s time they all saw sense and let this matter go for arbitration.’’

The IFA has confirmed that Donal Norris is entitled to come in under the new deal. However, Donal Norris maintains that as late as May 9 the council was insisting that he is not entitled to the terms of the new deal and must remain in arbitration.

On the 19th of March this year Donal Norris started to drive his 44 dairy cows on the new Fidown/Piltown bypass. He had to do it as they were out of grass on the 19 acres surrounding the yard. ‘‘I had no choice.

The cows were hungry and needed fresh grass. Most of our land is now on the other side of the new road. Before the bypass was built, getting to that grass was a simple matter of driving the cows less than a quarter of a mile along a small local road. Now the distance is 1.2 miles — across a very fast and busy road,’’ said Donal.

He had the same difficulty last October when the local road used by his family for generations to access the rest of the farm was first closed. Donal was not allowed to drive his cows through the narrow tunnel provided for cars. Furthermore, council officials told him that if he did use it, he would be fined €1,000 per day.

On the intervention of Michael Egan of the NRA, he was given temporary permission to use the tunnel. This was to apply until the council completed internal roadways through adjoining land to reach the rest of the farm. In early November a cow seriously injured herself in the tunnel and had to be put down. On veterinary advice, Donal stopped using it. Seven months later there’s still no sign of the internal roadways.

Last week 200 neighbours and friends staged a peaceful protest in support of Donal and his family. About 50 vehicles, including lorries and tractors, were driven slowly along the hard shoulders without causing disruption to traffic.

Donal has now decided to dry off 25 per cent of his dairy herd. ‘‘The strain is just too much. It takes 14 of my neighbours to herd the animals twice a day. I can’t keep asking them to do this. They have been so good to us, and I want to thank them for all their help and support. If the internal roadways are not put in within two weeks, I have no choice but to dry off another 25 per cent of the herd,’’ he said.

‘‘I feel singled out by the council. They just seem to want to get their way. I want to know who the real decision maker is because all I want is equal treatment,’’ he said.

Council statements criticised

Richard Rea of Martin and Rea Consultants in Agriculture and Business says statements about the Donal Norris case made at a recent meeting of Kilkenny County Council are not acceptable.

‘‘I want to reject two points made by the county council. The council claims that five agreements it put forward were turned down by Donal Norris.There were no agreements brokered with Mr Norris, and to claim anything other than this is totally wrong and not in accordance with the facts. I wrote to Kilkenny County Council on the 28th of March requesting details of these supposed agreements and the dates when Donal Norris rejected them. To date the council has not been able to back up its claims,’’ said Richard Rea.

He also rejects the council’s criticism about the way it is being portrayed since Donal Norris started to drive his cows on the bypass.

‘‘The truth hurts. It is a matter of fact that the cows were on the road. Donal Norris had no other choice. Kilkenny County Council has provided roadways of adequate width and length for other affected landowners. In fact, on the farm that Donal Norris has leased, the roadway provided is perfectly adequate. However, on the Norris home farm this is not the case. For some extraordinary reason, the roadway proposed here is both inadequate in length and width,’’ said Richard.

He said this was a critical matter for Donal Norris because the public roadway used by his family for generations is now closed off, and he must have an adequate alternative to reach the rest of his farm.

‘‘All Donal Norris wants is equal treatment. He wants the same as was given to other landowners. Because this was not done, he was left with no choice but to drive his cows on the new road or else cease to be a dairy farmer.’’

On November 8, 2001, a compromise solution was put forward.

This solution proposed that the County Council should provide the roadway and, if the arbitrator decided it was more than Donal Norris was entitled to, this would be taken into account in his final assessment for compensation. The council and the NRA rejected this proposal last week.