Limerick couple in legal action over council bid to acquire their property

A COUNTY Limerick couple has brought a High Court challenge over what they claim is an unconstitutional attempt by the local authority to take charge of a part of their home property. 

The move is alleged to be unconstitutional because a section of the Act, under which Limerick City and County Council has cited as its legal basis for acquiring part of their property, has never been 'commenced' or legally brought into force by the State.

The failure to commence the section, the court heard, means that the land owners cannot appeal the council's decision to take charge of part of their property. 

The action, the outcome of which may have wider implications, has been brought by Judith Dixon and Liam McLoughlin who reside with their children at The Station House, Curraghbeg, Adare, which is a protected structure.

In a brief hearing this Monday, the court heard an open cut drain forms part of their property.

Last September the council issued a notice,  under provisions of the 2007 Water Services Act, stating that it intends to take charge of part of the applicants' home property, located at Blackabbey, Adare.

The applicants were informed that the council wanted to acquire the lands, for which the owners are entitled to claim compensation for, to facilitate the construction of residential units in Adare Village.

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The couple are seeking to lodge an appeal against the decision and have the council's notice set aside.

They claim that the taking of charge of the land would allow the local authority to come and go over their property which they say would adversely affect their privacy. 

However, they claim that they are unable to advance their appeal because the Minister for Housing and Local Government failed, by way of statutory instrument, to bring into being a section of the 2007 Act that allows an appeal to be brought against decisions allowing the authorities to acquire land.

They claim that the failure to commence that particular section of the legislation denies them of their constitutional right to an appeal.

Represented by Oisin Collins SC and David O'Brien Bl, instructed by PB Cunningham Solicitors, the applicants have launched judicial review proceedings where they seek various orders and declarations including an order quashing the notice that it intends to take charge of the lands at Blackabbey, Adare. 

They also seek various declarations including that the council's notice that it intends to take charge of the applicants' lands amounts to a breach of their constitutional rights, including their rights to fair procedures, and is unreasonable.

The couple further seeks a declaration (from the court)  that when the Oireachtas intended to enact the 2007 Act, which would have afforded a right to appeal against notices to take charge of land, the Minister failed to give effect to that intent.

The action is against Limerick City and County Council; the Minister for Housing, Local Government and Heritage; Ireland and the Attorney General. 

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The matter came before Ms Justice Niamh Hyland this Monday, who on an ex-parte basis granted the applicants permission to bring the challenge. 

In reply to the judge regarding the commencement by the Minister of section, counsel said that his solicitor had written to the Minister about the issue. 

Counsel said that in a reply on behalf of the Minister it had been confirmed that the section had not been commenced.

The matter will return before the High Court in January.