It will take a year simply to establish who owns property along the route of the Dublin metro, and legal advisors and valuers will cost the State millions, the chief executive of the Railway Procurement Agency, Mr Frank Allen, predicted yesterday. Tim O'Brien reports.
Calling for a "root-and-branch" reform of the laws surrounding compensation for landowners, Mr Allen told the Joint Oireachtas Committee on the Constitution that acquiring property underground "poses a challenge" to the development of the metro. He also highlighted the current practice of paying legal advisors and valuers a percentage of the amount of compensation awarded, with no limit.
The Oireachtas committee is hearing submissions on a possible Constitutional amendment to cap the price of development land.
Making his comments as part of a joint submission with Mr Michael Tobin, the chief executive of the National Roads Authority, Mr Allen also said the current legal framework would give the builders of the Dublin metro "no mechanism" for acquiring additional property to vary the route if it encountered obstacles such as hard rock or water.
Arguing that Article 43 and 40.3.2 of the Constitution did not merely guarantee the right to private property, but also balanced the private and common good, Mr Allen said the balance has been skewed in favour of the individual against the State.
He instanced the requirement for the Railway Procurement Agency to trace each landowner and serve them with a notice to treat - essentially an invitation to begin the bargaining process. Almost every owner or holder of rights to all properties, including those who have rights of way and the descendants of landlords who assigned their property by way of long leases several hundred years ago, must be included in a "reference of titles" before the Railway Procurement Agency can apply to the Minister for Transport for a Railway Order. This means the public inquiry process cannot start before the route is "referenced".
This could, he suggested, be changed to a requirement to put a site notice on a property, and a requirement for interested parties to make their claims known to the State agency.
Referring specifically to the Dublin metro and comparisons with Spanish metro building, Mr Allen said, "the environment for developing infrastructure in Spain differs in many fundamental ways from Irish practice". He pointed out that in Madrid, no property referencing is required for underground tunnelling or for surface infrastructure work on publicly owned property.
This was in contrast to Ireland, where other State agencies had lodged multi-million euro claims against the Railway Procurement Agency. "Consideration may be given to the transfer of this land at a price that reflects the original purchase price updated in line with inflation, plus reasonable conveyancing costs," he suggested.
Costs associated with the process of land acquisition would "add significantly" to the Dublin metro project, he predicted. "Currently an arbitrator can award a valuer 2½ per cent of the arbitration award with no threshold applying. Legal advisors are often awarded an amount for preparation and submission of a claim even though the valuer is paid for this work in his fee. Legal advisers are then paid separately for the transfer of the title at a rate of 1 per cent of the compensation total, again with no threshold applying," he said.
Mr Allen added that his commercial experience - he is a former banker - is that "certainly in the case of large awards these professional fees would be negotiable and significantly lower".
Mr Allen instanced one example where the agency served a notice to treat, the invitation to apply for compensation, in January 2000 and the arbitration process was completed in September 2003. "Costs are expected to be substantial," he commented. The Railway Procurement Agency is facing claims for compensation from other State agencies, private landowners, as well as those who acquired their land by squatters' rights.