The High Court has allowed Jackson Way Properties Limited to amend its pleadings in a dispute with Dún Laoghaire-Rathdown County Council over compensation for land acquired for the South-Eastern Motorway Scheme, now the M50. The court did not decide whether the company can enforce the arbitrator’s award or whether the title burdens affected the land; those issues are to be determined at trial.
In a judgment delivered on 11 March 2009, Miss Justice Laffoy said the proposed amendments were necessary to determine the real issues between the parties. The company may add claims concerning whether construction and use of the motorway breached a restrictive covenant and whether any subsisting covenant should reduce the compensation payable.
The dispute concerns 8.168 hectares in Folio 4940, County Dublin, which the council compulsorily acquired. An arbitrator awarded the company €12,860,700 on 12 November 2003 after a 19-day oral hearing. The award proceeded on the company’s claim to a freehold interest with vacant possession, subject to specified easements and wayleaves. The judgment noted that the award did not refer to three registered burdens, including a right of way and a restrictive covenant and its modification.
The council had not paid the compensation and title had not passed to it. It disputed whether the company had established the title it had represented to the arbitrator. The council also argued that proceedings under section 41 of the Arbitration Act 1954 were not a proper way to enforce an award made under the Acquisition of Land (Assessment of Compensation) Act 1919, and that the title and covenant questions could not be resolved through that procedure. It counterclaimed for the award to be set aside or remitted to the arbitrator.
The council also relied on a compensation claim by Mr and Mrs T. K. Smith, who asserted an interest in the restrictive covenant. A notice of intention to claim compensation, dated 13 January 2009, was put before the court. Justice Laffoy said the council would need to decide how the case should proceed to allow adjudication of the covenant dispute between the company and the Smiths; the company was not prepared to address that difficulty.
The court had earlier, by consent, treated the proceedings as adequately initiated despite a procedural issue, and directed that the dispute proceed to a plenary hearing. On 9 March 2009, it refused to determine the council’s fundamental objections on an interlocutory motion, holding that trial was the proper place to decide them. The parties were directed toward amended pleadings, closure of pleadings, and setting the action down for trial. The judgment did not determine the counterclaim, the company’s entitlement to payment, or the covenant and title disputes.