Ireland: Construction Law Update: DART Underground – Scope Of Planning Order Successfully Challenged

The recent successful judicial review of a planning order relating to DART Underground, which had effectively frozen lands on the proposed route, will be welcomed by the 5,000 home and business owners whose land could be compulsorily acquired for the project, particularly where it is still uncertain whether or not the project will ever go ahead.

Flancrest Enterprises Limited – v- An Bord Pleanala and Others

We recently acted in successful judicial review of a planning order relating to DART Underground, which had effectively frozen our client's lands on the proposed route.  The order made by An Bord Pleanala ("ABP"), had allowed CIÉ a period of 7 years to notify landowners if it intended to compulsorily acquire their lands for the project.  We successfully argued that ABP had acted outside of its powers in granting this 7 year timeframe within which to serve a notice to treat.  The Court has now reduced the time allowed to serve a notice to treat under the order from 7 years to 18 months.  This decision will be welcomed by the 5,000 home and business owners whose land could be compulsorily acquired for the project, particularly where it is still uncertain whether or not the project will ever go ahead. 

Background

The Applicant, Flancrest, owns a brownfield site on the corner of Island and Bridgefoot Street, near St James' Gate Brewery in Dublin.  On 14 December 2011, ABP issued the Railway Order, which is effectively a planning permission for the DART Underground project.  It authorises CIÉ to construct, maintain and operate DART Underground.  It also allowed CIÉ up to 7 years from the date of the order, to serve a notice to treat on owners of lands on the proposed route if it wished to compulsorily acquire their land for the project.  This 7 year timeframe completely blighted any opportunity for our client to develop or make any return from its lands for at least that time.  In addition, at the end of the 7 years, CIÉ could simply choose not to purchase the site.  The negative impact of the order on the Applicant was exacerbated by the fact that the Government had announced in November 2011 that the project had been deferred indefinitely, due to a lack of funding.

Decision

Flancrest sought judicial review of the Railway Order.  We argued for the Applicant, that the legislative scheme which empowered ABP to make the order, when correctly construed, required that a notice to treat be served within 18 months of the order becoming operative.  Mr Justice Peart agreed with our interpretation of the legislation and held that ABP had acted outside its powers in allowing CIÉ 7 years to serve a notice to treat.  The Court directed that the Railway Order be amended to reduce the time for CIÉ to serve a notice to treat to 18 months, from the date of the Court's order on 25 March 2014.   

Comment

This is a hugely important decision for property owners in Dublin city centre whose land may be compulsorily acquired for DART Underground or similar projects.  It strikes a more appropriate balance between the right of CIÉ to a reasonable period of time to decide on their strategy for the project and the competing right of the land-owners, whose lands are effectively frozen in the meantime.

CIÉ now have to decide whether or not to proceed with DART Underground under the current Railway Order by September 2015.  It has been reported that since the decision, CIÉ have begun issuing letters to home and business owners in Dublin about acquiring their land under compulsory purchase orders.  However, there is still no guarantee that the project is going ahead.  The Department of Transport has said that the project is currently being reviewed in advance of the next capital plan in 2015, but that delivery of this project "remains subject to sufficient Exchequer finances being available". 

Since the judgment, ABP has made a detailed legal submission to the Department of Environment, which suggests that the overall statutory regime in relation to Railway Orders may need to be reviewed in the light of this decision.  They are of the view that an 18 month time limit to serve a notice to treat is not sufficient for major infrastructure projects.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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