The Supreme Court dismissed Paul Clinton’s appeal against the confirmation of a compulsory purchase order covering land in the O’Connell Street and Moore Street area, holding that the stated purpose of regenerating the area was sufficiently particular even though the council had not settled on a specific development scheme.
In a judgment delivered by Mr Justice Geoghegan on 2 May 2007, the court rejected challenges to the order’s purpose and to the way the planning board considered objections. It left open whether, in other types of compulsory acquisition, naming a statutory purpose alone would be enough.
Dublin City Council had sought control of the site after concluding that a development proposal backed by Mr Clinton and partners was unlikely to proceed. The group had planning permission for a project known as the Millennium Mall. The council’s position, accepted by the inspector and the board, was that the group had not secured an experienced development partner and that the project would not be implemented. Mr Clinton disputed the council’s case and argued that there was no firm proposal for what would happen to the land after acquisition.
The order described the purpose as “development purposes”. The Supreme Court found that the context made clear that the purpose was regeneration of the O’Connell Street area in line with the city’s development plan. Because regeneration could involve proposals by future private developers and later planning applications, the council did not have to identify the precise form of development before acquiring the land. The court said compulsory acquisition was permitted under section 213(3)(a) of the Planning and Development Act 2000.
The court also rejected the claim that the burden of proof had been reversed at the board’s oral hearing. It said the council had little to establish on a prima facie basis once the lawful purpose and the area’s regeneration needs were identified, and that the evidence did not show the board had shifted the burden to Mr Clinton.
The judgment said an authority exercising compulsory purchase powers must be satisfied that acquisition is clearly justified by the common good, and that judicial review must protect constitutional property rights. It concluded that this order was lawful and proportionate.
The court dismissed the appeal on grounds other than the challenge to the constitutionality of provisions in the 2000 Act. It said that if the constitutional issue was to be pursued, it would discuss appropriate procedures with counsel. The judgment therefore did not determine that challenge.