Couple challenging council’s alleged attempt to take charge of part of their property

A Co Limerick couple has brought a High Court challenge over what they claim is an unconstitutional attempt by the local council 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 means the landowners cannot appeal the council’s decision to take charge of part of their property, the court heard,

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. The court heard that an open-cut drain forms part of their property.

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

The applicants were informed that the council wanted to acquire the lands, for which they 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 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 they are unable to advance their appeal because the Minister for Housing and Local Government 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.

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

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

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 the council, the Minister for Housing, Ireland and the Attorney General.