A landmark Supreme Court judgment could have huge implications for farmers subjected to compulsory purchase orders.

Last week, the nation’s highest court found that Cavan landowners are entitled to compensation for the loss of market value of farmland associated with the installation of pylons by the ESB on their land. Crucially, this market loss extends to the entire property, not just the affected strip.

The judgment, from Mr Justice Brian Murray, said that the phrase “injurious affection” was a nineteenth century description of depreciation that had been “interpreted, reinterpreted and misinterpreted by judges since 1841”.

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Judgment

The judgment stated that the main issue related to extent of the right of compensation. Those arguing on behalf of Cavan farmers Peter and Rose O’Reilly had stated “that when an electric line and supporting poles and pylons are placed, respectively, above and on lands of theirs (as has occurred), they are entitled to be paid sums reflecting more than just the impact on the value of the particular strip traversed by the line or area occupied by the poles or pylons supporting the line (together with consequent disturbance)” the judgment explained.

“They say that they are also entitled to compensation for the loss of value of housing sites on the holding across which the lines travel, and that they are entitled to be compensated for a general loss of value to that holding.

This is what they label “injurious affection” continued the judgment, noting that “ESB disputes that they have any such entitlement”.

The property arbitrator appointed agreed that the O’Reilly’s were entitled to the broader form of compensation.

This was challenged in the High Court, where ESB was successful in arguing that “the arbitrator erred in so finding”. However, this judgment did allow an appeal on behalf of landowners. The ESB’s position hinged on the view that only market value compensation “for what has been taken” is provided for.

In a long and complicated ruling, extending to 78 pages, it was determined that “the trial judge was in error if he found that the 1919 Act operated in any way to preclude a claimant from seeking compensation for what has been termed ‘injurious affection’”.

Justice Murray specified “which I am referring to here as depreciation to the value of their holding caused by the presence on the O’Reillys’ lands of the electric line and supporting poles and pylons”.

He continued to say that the compensation should enable “the recovery of compensation to reflect a depreciation in the value of the land” caused by the compulsory imposition of the right to place infrastructure on the privately owned land.

The ruling did not agree that the farmers should be entitled to compensation “for anticipated exercise of the power of re-entry”.