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22 1934

TOWN AND REGIONAL PLANNING ACT, 1934

PART VIII.

Compensation and Payment for Betterment in Respect of Planning Schemes.

Compensation for restriction, etc., on user of property.

61. —(1) Whenever a provision in a planning scheme restricts or controls the purposes for which any particular property may be used or curtails or limits the legal rights and powers exercisable or enjoyed in respect of any particular property by the owner or the occupier thereof and the value of such property is reduced by such restriction, control, curtailment, or limitation, every person having any estate or interest in or right over or in respect of such property shall, save as is otherwise provided by this Act, be entitled, on making an application under this section, to be paid by the responsible authority by way of compensation the amount (if any) by which his estate or interest in or right over or in respect of such property is so reduced in value and, in the case of the occupier of such property, the damage (if any) to his trade, business or profession, occasioned by such restriction, control, curtailment, or limitation.

(2) Every application for the payment of compensation under this section shall be made to the responsible authority within twelve months (or such longer time as shall be specified in the planning scheme) after the coming into operation of the provision on account of which such compensation is claimed.

Postponement of payment of compensation.

62. —(1) The responsible authority under a planning scheme may, within one month after the date of an award of compensation under the next preceding section of this Act to any person, give notice (in this section referred to as a suspensory notice) to such person of the intention of such authority to take steps to effect or obtain the revocation or amendment of the provision in such planning scheme on account of the coming into operation of which such compensation was awarded.

(2) No award of compensation under the said next preceding section shall be enforceable until the happening of the event specified in whichever of the following paragraphs is applicable, that is to say:—

(a) if within one month from the date of such award the responsible authority has given a suspensory notice in relation to such award and within four months from the giving of such notice the appropriate planning authority has passed a resolution for the making of a planning scheme to revoke or amend the provision to which such notice relates:—the coming into operation of a planning scheme made in pursuance of such resolution or the revocation by the Minister of such resolution, as the case may be;

(b) if within one month from the date of such award the responsible authority has given a suspensory notice in relation to such award and within four months after the giving of such notice the responsible authority has appealed to the Minister against a refusal by the appropriate planning authority of an application for a revocation or modification of the provision to which such notice relates:—the determination of such appeal by the Minister;

(c) if, in the case mentioned in the next preceding paragraph of this sub-section, the Minister when determining the appeal requires the planning authority to make a revoking or amending planning scheme:—the coming into operation of such revoking or amending planning scheme;

(d) in any other case in which the responsible authority has, within one month after the date of such award, given a suspensory notice in respect of such award:—the expiration of four months from the giving of such notice;

(e) in any other case whatsoever:—the expiration of one month from the date of such award.

(3) Notwithstanding anything contained in the foregoing sub-sections of this section, the right of any person to recover the amount of an award of compensation under the next preceding section of this Act on account of the coming into operation of a provision in a planning scheme shall cease on the coming into operation of a later planning scheme by which such provision is revoked or amended, but such cesser shall not prejudice or affect the right (if any) of such person to recover compensation under the said next preceding section on account of the coming into operation of a provision in such later planning scheme.

Compensation for exercise of powers under Part VI . of this Act.

63. —(1) Every person who suffers damage by reason of any act or thing done by the responsible authority in exercise of a power conferred on them by Part VI of this Act shall, save as is otherwise provided by this Act, be entitled on making an application under this section to be paid by the responsible authority by way of compensation the amount of such damage.

(2) Every application for the payment of compensation under this section shall be made to the responsible authority within 12 months (or such longer time as shall be specified in the relevant planning scheme) after the completion of the act or thing on account of the doing of which by the responsible authority such application is made.

Compensation for unnecessary refusal of permission or making of prohibition.

64. —(1) Any person who, after the relevant date and before the coming into operation of a planning scheme, has refrained from doing any particular work for which a special permission in relation to such planning scheme was applied for and was refused or has refrained in pursuance of a special prohibition made in relation to such planning scheme from doing any particular work and has suffered loss by so refraining shall, on making an application under this section, be entitled to be paid by the responsible authority by way of compensation the amount of such loss, unless in the opinion of the arbitrator the doing of such particular work would have prejudiced the efficient and economical execution of such planning scheme.

(2) Any person who, in the doing of any particular work after the relevant date and before the coming into operation of a planning scheme, has complied with a condition attached to a special permission or contained in a special prohibition granted or made in relation to such planning scheme and has by such compliance suffered loss (other than loss arising from the reduction in value of any property), shall be entitled, on the coming into operation of such planning scheme, to be paid by the responsible authority by way of compensation the amount of such loss, unless in the opinion of the arbitrator the doing of such particular work without complying with such condition would have prejudiced the efficient and economical execution of such planning scheme.

(3) Every application for payment of compensation under this section shall be made within 12 months after the coming into operation of the planning scheme upon the coming into operation of which the applicant becomes entitled to be paid such compensation.

Compensation in certain cases where resolution is revoked.

65. —(1) Whenever—

(a) a planning authority passes a resolution for the making of a planning scheme (in this section referred to as the proposed scheme) which if made would revoke or amend a previous planning scheme, and

(b) such resolution is revoked by the Minister, and

(c) any person has, after the passing of such resolution and before such revocation, refrained from doing any work in an area to which such previous planning scheme related and the proposed scheme if made would relate, and

(d) either such person applied to such planning authority, after the passing of such resolution and before such revocation, for a special permission in respect of such work and such special permission was refused, or such person so refrained in pursuance of a special prohibition made after the passing of such resolution and before such revocation, and

(e) such person suffered loss by refraining from doing such work,

such person shall, on making an application under this section, be entitled to be paid by such planning authority by way of compensation the amount of such loss.

(2) Every application for the payment of compensation under this section shall be made to the responsible authority within twelve months after the date of the order by which the revocation mentioned in the next preceding sub-section of this section was effected.

Compensation in certain cases for abortive work or expense.

66. —(1) Whenever a person, on account of or in reliance on a provision contained in a planning scheme, has done work or incurred expense on or in relation to property owned or occupied by him (whether such work or expense was done or incurred voluntarily or in pursuance of an obligation imposed by such planning scheme) and such work or expense becomes wholly or partly abortive by reason of a revocation, amendment or avoidance of the said provision by a subsequent planning scheme, such person shall be entitled on making an application under this section to recover from the responsible authority compensation in respect of such work or expense in so far as the same so becomes abortive.

(2) Whenever a person incurs costs and expenses in making a claim for compensation or resisting a claim for betterment on account of a provision contained in a planning scheme and such provision is so revoked, amended or avoided by a subsequent planning scheme that the incurring of such costs and expenses becomes wholly or partly abortive, such person shall, save as is otherwise provided by this Act, be entitled on making application under this section to recover from the responsible authority compensation in respect of such costs and expenses in so far as the same so becomes abortive.

(3) Every application for the payment of compensation under this section shall be made to the responsible authority within twelve months after the coming into operation of the planning scheme effecting the revocation or amendment by reason of which such compensation becomes payable.

Compensation where another enactment applies or might be applied.

67. —(1) This section applies to every provision in a planning scheme which is identical or substantially identical with or to the same effect as any of the following enactments (in this section referred to as identical enactments), that is to say:—

(a) an enactment contained in a statute (whether public general, public, local or private) which, at the date of the coming into operation of such provision, is in force in the area to which such provision applies, or

(b) an enactment contained in an order, bye-law, or regulation in force at the date and in the area mentioned in the next preceding paragraph of this sub-section and made under any such statute as is mentioned in that paragraph, or

(c) an enactment which could, at the date of the coming into operation of such provision, have been lawfully contained in an order, bye-law, or regulation made by a local authority (without confirmation or other action by the Oireachtas) in respect of the area to which such provision applies under any such statute as is mentioned in the first paragraph of this sub-section, or

(d) an enactment contained in a public general or public statute which, at the date of the coming into operation of such provision, is not in force in the area to which such provision relates but could at that date have been lawfully adopted by a local authority or otherwise put in force in that area without confirmation or other action by the Oireachtas, or

(e) an enactment which could, at the date of the coming into operation of such provision, have been lawfully contained in an order, bye-law, or regulation made by a local authority (without confirmation or other action by the Oireachtas) in respect of the area to which such provision applies under any such statute as is mentioned in the next preceding paragraph of this sub-section if such statute were at that date in force in that area.

(2) Where, in the case of a provision in a planning scheme to which this section applies, no compensation is payable under the identical enactment, or would have been payable thereunder if it had been in force, in respect of injury caused by the coming into operation of such identical enactment or by the doing of any particular thing under such identical enactment, then no compensation shall be payable under this Act in respect of the coming into operation of the said provision or the doing of such particular thing under such provision, as the case may be.

(3) Where, in the case of a provision in a planning scheme to which this section applies, compensation is payable under the identical enactment, or would have been payable thereunder if it had been in force, in respect of injury caused by the coming into operation of such identical enactment or the doing of any particular thing under such identical enactment, then no greater amount of compensation shall be payable under this Act in respect of the coming into operation of the said provision or the doing of such particular thing under such provision (as the case may be) than is or would be payable in the same circumstances under such identical enactment.

Compensation where work could have been done under another Act.

68. —Where a provision in a planning scheme requires the execution by the responsible authority of public work which could lawfully be executed by such responsible authority under any enactment other than this Act, no compensation shall be payable under this Act in respect of the execution of such work by such authority, and such work shall, for the purpose of determining the right (if any) to compensation in respect of the execution thereof and for the purpose of the assessment and payment of such compensation (if any), be deemed to have been executed under such other enactment.

Prohibition of compensation where planning scheme declares no compensation to be payable.

69. —No person shall be entitled to be paid under this Part of this Act by the responsible authority any compensation where the provision in the planning scheme on account of which such compensation would but for this section have been payable is a provision in respect of which it is declared by such scheme that no compensation shall be payable under this Act on account of or arising from the operation of that provision.

Prohibition of compensation in certain cases.

70. —The following provisions shall have effect in regard to the compensation payable or which, but for this section, would be payable to any person under this Act or under any other Act in respect or on account of anything contained in or done under a planning scheme, that is to say:—

(a) no such compensation shall be payable in respect of any structure the erection of which was begun after the relevant date unless such erection was begun under and in accordance with a special permission or a general permission;

(b) in assessing such compensation in respect of any structure, no account shall be taken of or compensation allowed in respect of any work on or in relation to such structure which was begun after the relevant date unless such work was begun under and in accordance with a special permission or a general permission;

(c) in assessing such compensation in respect of any structure, no account shall be taken of and no compensation shall be allowed in respect of any portion of any work on or in relation to such structure done in contravention of a special prohibition.

Prohibition of double compensation.

71. —Where a person would, but for this section, be entitled to compensation under this Act in respect of any matter or thing and also to compensation under any other enactment in respect of the same matter or thing, he shall not be entitled to compensation in respect of such matter or thing both under this Act and under such other enactment, and shall not be entitled to any greater amount of compensation under this Act in respect of such matter or thing than the amount of the compensation to which he would be entitled under such other enactment in respect of such matter or thing.

Payment for betterment.

72. —(1) Whenever the value of any property is increased by the coming into operation or enforcement of any provision contained in a planning scheme or by the execution of any work by the responsible authority in pursuance of any such provision, every person having any estate or interest in such property shall be liable to pay to the responsible authority, on application by the responsible authority, a sum (in this Act referred to as payment for betterment) equal to three-fourths of the amount (if any) by which the value of the estate or interest of such person in such property is so increased.

(2) Every application by a responsible authority for payment for betterment shall be made, in the case of a claim in respect of the coming into operation or enforcement of a provision contained in a planning scheme, within twelve months (or such longer period as shall be fixed by such planning scheme) after such enforcement or coming into operation (as the case may be) or, in the case of a claim in respect of the execution of work, within twelve months (or such longer period as shall be fixed by such planning scheme) after the completion of such work.

(3) Whenever a responsible authority makes an application under this section for payment of betterment, such authority shall, within one week after making such application, enter the prescribed particulars of such application in the register, and, if such responsible authority does not so enter such particulars, such application shall, at the expiration of such week, be and be deemed always to have been null and void.

Calculation of amount of payment for betterment.

73. —(1) Subject to the provisions of this section the amount of a payment for betterment shall be calculated by reference to the value of the property in respect of which such payment is claimed at the time at which application for such payment is made by the responsible authority.

(2) Any person to whom an application for payment for betterment is made (otherwise than by virtue of the subsequent provisions of this section) by a responsible authority may, by notice served on such responsible authority within twenty-eight days after the making of such application, require that the amount of such payment for betterment shall be calculated on the basis that the purposes for and manner in which the property in respect of which such payment for betterment is so applied for can lawfully be used is effectively and permanently restricted to the purposes for and the manner in which such property is actually used at the date of such application for payment for betterment.

(3) When such requisition as is mentioned in the next preceding sub-section of this section has been duly made, the amount of the payment for betterment to which such requisition relates shall be calculated in accordance with such requisition.

(4) When the amount of a payment for betterment is calculated in accordance with a requisition under the foregoing provisions of this section, and within fourteen years after the date of the application for such payment for betterment the property which was the subject of such application or any portion of such property is sold, leased, or let on any form of tenancy for any term not less than two years or is used for a purpose or in a manner substantially different from the purpose for or the manner in which it was used at the date of such application, the responsible authority shall be entitled to apply for, receive, and recover under this Act from the person by whom such requisition was made or from any other person upon whom such property or such portion thereof (as the case may be) has devolved by operation of law, a payment for betterment calculated by reference to the value of such property or such portion thereof at the date of such last-mentioned application and on the basis that there is no such special restriction as is mentioned in the said requisition on the use of such property or such portion thereof but with due allowance for (as the case may require) the payment for betterment (if any) already made in respect of such property or a proper proportion of such payment for betterment (if any).

(5) Every application by the responsible authority under the next preceding sub-section of this section for a payment of betterment calculated in accordance with that sub-section shall be made within twelve months (or such longer period as shall be allowed by the planning scheme) after the property or the portion thereof, in relation to which such application is made, is so sold, leased, or let or is begun to be so used as to entitle the responsible authority to make such application.

(6) Where a requisition is made under the foregoing provisions of this section by a statutory undertaker in respect of property occupied by him, then so long as such property continues to be occupied by such statutory undertaker and is used by him for the purposes or any of the purposes of his undertaking, such property shall not be deemed to be used for a purpose or in a manner substantially different within the meaning of this section from the purpose for and the manner in which it was used at the date of the application for payment of betterment in relation to which such requisition was so made.

(7) Every responsible authority shall enter in the register the prescribed particulars of every such requisition, and shall not be entitled to any further payment for betterment under sub-section (4) of this section in respect of any property unless the said particulars of the said requisition in relation to such property are so entered in the register within one week after the service of such requisition.

(8) Whenever any property which is the subject of a requisition duly entered in the register in accordance with the foregoing sub-section of this section or any portion of such property is, within fourteen years after the date of the application which occasioned the service of such requisition, sold, leased for any term, or let in any form of tenancy or is used for a purpose or in a manner substantially different from the purpose for or manner in which it was used at the date of such application, it shall be the duty of the person by whom such application was made or of any other person upon whom such property or such portion thereof has devolved by operation of law to serve on the responsible authority by whom such requisition is so entered in the register notice in writing of such sale, lease, letting, or change of user (as the case may be) within fourteen days after the occurrence thereof, and if he fails so to do he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding five pounds together with a further fine not exceeding one pound for every day during which such failure continues.

Application of moneys paid as payment for betterment.

74. —Moneys received by a responsible authority as payment for betterment shall be applied by such authority in accordance with the following provisions, that is to say:—

(a) in so far as such moneys consist of payment for betterment in respect of the execution of work by such responsible authority, such moneys shall be applied in or towards the payment of the expenses incurred by such responsible authority in the execution of such work, and the balance (if any) of such moneys remaining after discharging such expenses shall be applied towards discharging the expenses incurred by such responsible authority in the execution of the planning scheme in pursuance of which such work was so executed;

(b) in so far as such moneys consist of payment for betterment in respect of the enforcement or coming into operation of a provision contained in a planning scheme, such moneys shall be applied in or towards the payment of compensation payable by such responsible authority in respect of the enforcement or coming into operation of such provision, and the balance (if any) of such moneys remaining after the payment of such compensation shall be applied towards discharging the expenses incurred by such responsible authority in the execution of such planning scheme.

Arbitration on applications for compensation or payment for betterment.

75. —(1) Every application by any person for payment of compensation under this Part of this Act by the responsible authority and every application by the responsible authority for payment for betterment by any person shall, in default of agreement, be determined by arbitration under and in accordance with the Acquisition of Land (Assessment of Compensation) Act, 1919, as amended by the Acquisition of Land (Reference Committee) Act, 1925 (No. 22 of 1925), in like manner in all respects as if such application arose in relation to the compulsory acquisition of land and such compensation or payment for betterment were the price of land compulsorily acquired, and the said Acts shall apply accordingly but subject to the subsequent provisions of this section.

(2) On any arbitration under this section, the arbitrator shall have jurisdiction to determine whether compensation or payment for betterment is in the circumstances of the particular case payable at all, and if such arbitrator finds that such compensation or payment for betterment is payable he shall have jurisdiction to determine the amount thereof, and (in the case of compensation) the person to whom it is payable, and (in the case of payment for betterment) the person by whom it is payable, and (in any case) the time or times at which such compensation or payment for betterment shall be paid and, in particular, whether it is to be paid in one sum or by instalments and, if it is to be paid by instalments, the number, amount, and times of payment of such instalments and the provision to be made for payment of interest on the amount for the time being outstanding and unpaid.

(3) When the amount of any compensation or payment for betterment is being determined on an arbitration under this section, the arbitrator shall have regard, in the case of compensation, to any undertaking given by the planning authority or the responsible authority and, in the case of payment for betterment, to any undertaking given by the person from whom such payment for betterment is claimed.

Recovery of compensation payable by the responsible authority.

76. —(1) All compensation payable under this Part of this Act by the responsible authority shall, when the amount thereof has been determined by agreement or by arbitration in accordance with this Act, be recoverable from such authority as a civil debt in any Court of competent jurisdiction, and all costs and expenses of parties to an arbitration to determine the amount of any such compensation shall, in so far as such costs and expenses are payable by the responsible authority, be likewise recoverable from such authority as a civil debt in any Court of competent jurisdiction.

(2) Sections 69 to 79 of the Lands Clauses Consolidation Act, 1845, as amended or adapted by or under the Second Schedule to the Housing of the Working Classes Act, 1890, or any other Act, shall apply in relation to moneys by this section made recoverable as a civil debt as if such moneys were a price or compensation under the said Act as so amended or adapted.

(3) Where money is paid into the High Court under section 69 of the Lands Clauses Consolidation Act, 1845, as applied by this section, by the responsible authority, no costs shall be payable by such responsible authority to any person in respect of any proceedings for the investment, payment of income, or payment of capital of such money.

Recovery by the responsible authority of payment for betterment.

77. —Every sum of money payable under this Act to the responsible authority by way of payment for betterment shall, when the amount thereof has been determined by agreement or by arbitration in accordance with this Act, be recoverable by such authority as a civil debt in any court of competent jurisdiction and shall also become and be, as on and from the date on which the amount thereof is so determined, a charge on the estate or interest in property in respect of which it is payable.

Registration and enforcement of charges on property.

78. —(1) Whenever any sum of money becomes by virtue of this Act a charge on any land, structure, or other property, or on any estate or interest therein, the responsible authority shall enter the prescribed particulars of such charge in the register within one month after the date on which such sum so becomes such charge, and, if such responsible authority does not enter such particulars, such charge shall, at the expiration of the said month, be and be deemed always to have been unenforceable, but without prejudice to proceedings by way of action for debt for recovery of the said sum of money.

(2) Whenever the Minister is satisfied, on the application of the responsible authority, that any charge created by this Act on any land, structure, or other property, or on any estate or interest therein cannot be enforced by legal proceedings by reason of uncertainty as to the ownership of such property or such estate or interest the Minister may by order empower such responsible authority to sell the property or the estate or interest therein affected by such charge.

(3) No order shall be made by the Minister under the next preceding sub-section of this section unless or until notice of the intention to make such order has been published by advertisement at least once in each of two newspapers circulating in the district in which the property to which such order is intended to relate is situate.

(4) When an order is made by the Minister under this section empowering the responsible authority to sell any property or any estate or interest in property, it shall be lawful for such authority to sell such property or estate or interest by public auction, to bid and buy at such auction, to receive the purchase money, and to convey effectively such property or estate or interest to the purchaser thereof.

(5) When the responsible authority sells any property or any estate or interest in property under this section, such authority shall, out of the purchase money, retain the costs of such sale and (so far as such purchase money will extend) the moneys for the recovery of which such sale was held and shall pay the balance (if any) of such purchase money into the High Court under section 69 of the Lands Clauses Consolidation Act, 1845, as amended or adapted by or under any subsequent Act as if such balance were such price or compensation as is mentioned in that section, and thereupon that section and section 70 of the said Act as so amended or adapted shall apply in relation to such balance, but no costs shall be payable by such authority to any person in respect of any proceedings for the investment, payment of income, or payment of capital of such balance.