Dr Rachael Walsh THE CURRENT DEBATE over the ownership of the new National Maternity Hospital has put the spotlight on our legal procedures for compulsorily acquiring land.
The commentary on this issue has rightly noted that the compulsory purchase process can be slow and that the preference of public bodies is generally to negotiate sales on a voluntary basis.This is particularly the case in Ireland, as we do not have a single act specifying when and how the State can compulsorily acquire property. As part of an ongoing review, the Law Reform Commission in 2017 identified over 70 distinct compulsory purchase powers and systems.
The High Court will consider whether the procedure set out in the Act has been complied with in a way that causes prejudice to an individual and whether the scope of the powers conferred by the Act were exceeded, or an order issued that was not authorised by the Act.The Act goes on to state: ‘save as is otherwise provided by this section, a compulsory acquisition order shall not be capable of being annulled, quashed, or otherwise questioned by any court.
However, the legislation would not be likely to be interpreted as excluding a constitutional challenge to an order – or if it was, the exclusionary provision itself might be challenged. Second, the Constitution sets out a bespoke test for assessing the legitimacy of ‘diverting’ property from religious denominations or educational institutions, which has not been explained or developed through past judicial decisions. Article 44.2.6˚ provides that such diversion must be ‘for necessary works of public utility and on payment of compensation’.