Limerick couple disputes council move to acquire part of their land to aid building of houses
At issue is a section of the 2007 Water Services Act and whether it has been "commenced" or brought into operation. The couple say as a result they cannot appeal the council plan. File picture
A couple has brought a High Court challenge in a legal row over a plan by Limerick City and County Council to take charge of a section of their land in Adare.
At issue is a section of the 2007 Water Services Act and whether it has been "commenced" or brought into operation. The couple say as a result they cannot appeal the council plan.
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, Co Limerick, which is a protected structure.
The court heard that an open-cut drain forms part of their property.
Last September, the council issued a notice stating that under provisions of the 2007 Water Services Act that it intends to take charge of part of the applicants' lands, located at Blackabbey, Adare.
The couple were informed that the council wanted to acquire the lands, for which the owners are entitled to claim compensation, to facilitate the construction of residential units in Adare Village.
The couple wanted to lodge an appeal against the decision and have the council's notice set aside. They claim that the taking 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 allegedly failed, by way of a 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.
The failure to commence the section, the court heard, means that the landowners cannot appeal the council's decision to take charge of part of their property. They claim that the failure to commence that particular section denies them their constitutional right to an appeal.
Represented by Oisin Collins and David O'Brien 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 of intention 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.
They further seek a declaration 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. The matter came before Ms Justice Niamh Hyland on 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 the 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.
