The Court of Appeal has refused an attempt by Jackson Way Properties Ltd to secure immediate payment of about €7 million from a €12.86 million compensation award for land acquired for the M50 in south County Dublin.
The land, measuring about 8.168 hectares, was compulsorily acquired by Dún Laoghaire Rathdown County Council. Possession was taken in October 2001 and an arbitrator awarded €12,860,700 in November 2003. The relevant section of the motorway opened in June 2005.
Jackson Way sought €7,010,700 as what it said was the undisputed portion of that award. However, the valuation had been made on the basis that the company held an unencumbered freehold title.
That assumption later proved incorrect. Separate litigation established that the land was subject to a restrictive covenant benefiting neighbouring lands owned by the Smith family. The covenant prevented buildings being erected and could affect the development value of the property.
Ms Justice Butler said the court could not simply assume that the covenant had no effect on value. No valuation had been carried out of the interest Jackson Way actually held at the relevant date.
The company is pursuing separate High Court proceedings seeking to discharge the covenant under section 50 of the Land and Conveyancing Law Reform Act 2009. The Court of Appeal said it was far from clear that any discharge could operate retrospectively to cure the title position as it stood in 2000.
The court accepted that Jackson Way is undoubtedly entitled to compensation and described the absence of payment more than 25 years after the acquisition as a matter of serious concern. However, it found that the dispute goes to the basis of the entire award rather than to a severable element capable of immediate payment.
The appeal was refused. The court proposed awarding the council its appeal costs, subject to written submissions seeking a different order.