The Court of Appeal has dismissed Cork County Council’s appeal over the jurisdiction of an arbitrator appointed to assess compensation for land compulsorily acquired in County Cork.
The council wanted the arbitrator to value a reduced area of land and decide whether an agreement or undertaking had changed the area covered by the compulsory purchase order and notice to treat. The court held that the arbitrator had no jurisdiction to determine whether such an agreement or legally effective undertaking existed.
The dispute concerned two parcels owned by Sylvia Lynch at Ballyverane, Macroom: a garden area that included part of the entrance to her home, and a stretch of road between the property boundary and the existing road’s median. Together, the parcels covered 0.246 hectares. The compulsory purchase order was made in 2009 and the council served a notice to treat in 2013.
The council said Ms Lynch had asked it to exclude the entrance from the land take and that the parties had agreed to a revised map. Ms Lynch disputed that any reduction had been agreed. In October 2017, while arbitration over compensation was under way, the council undertook to acquire 0.226 hectares, reducing the garden area by 200 square metres, and offered compensation for that smaller area. Ms Lynch objected to having the arbitrator assess compensation on that basis.
The arbitrator ruled in May 2018 that his jurisdiction arose from the notice to treat and that he could hear evidence only about the full area specified there. He refused the council’s request to state a case on a point of law. The council then applied to the High Court for an order requiring him to do so. The High Court dismissed the application, finding the proposed legal issue was not real and substantial.
The Court of Appeal agreed. It said the arbitrator’s statutory role was to determine disputed compensation for the land identified in the notice to treat. He could not decide contested questions about whether the parties had agreed to change the land take or whether the council’s undertaking had that legal effect.
The judgment distinguished that dispute from a situation where both parties clearly and unequivocally consent to the arbitrator valuing a smaller area. In that different situation, the arbitrator might be able to do so, though he would not be required to. The court stressed that this was not the issue before it.
The appeal was dismissed. The court’s provisional view was that Ms Lynch should receive the costs of the High Court proceedings and appeal. The council was given ten days to object; otherwise, the court said it would order the council to pay those costs, with the amount to be determined if not agreed. The second defendant, the appointed arbitrator, took no part in the proceedings.