The Kildare County Council (Kilcullen Link) Motorway Scheme was approved and advertised on the 28th of June 1989. The applicants home adjoined the proposed motorway and portion of their lands were required for the purposes of the scheme. Additionally, the scheme affected their access to the public road. The approval of the scheme by the Minister had the same effect as if a compulsory purchase order had been made in respect of the land. Accordingly, on the 23rd August 1989 the County Council served a notice to treat upon the applicants in relation to the lands to be acquired to carry out the scheme. The parties were unable to come to terms in relation to the amount of compensation to be paid to the applicants. They did, however, agree that the provision of an alternative access to that being lost by virtue of the scheme would cost a sum of £21,000.
It was agreed that the matters in dispute between them should go to arbitration and that the sum of £21,000 should be included in the award of the arbitrator, butapplicants were dissatisfied with the award and on the 17th October 1991 instituted proceedings in the High Court to have the award set aside. They were successful in the High Court but on appeal to this Court the appeal was allowed and the award of the arbitrator was confirmed.
Applicants were given liberty to seek judicial review inter alia by way of a declaration that the order of the Minister approving the motorway scheme was null and void, and an order that the County Council acted ultra vires in blocking the access to his premises before an alternative access had been provided. The relief sought was refused, and the matter comes before this Court by way of appeal from that order. The Court considered innapprpriate to rule on the submissions raised in relation to the validity of the Ministers Order. The notice to treat, the arbitration, and the proceedings to contest the award were all based upon the acceptance of the order as being a valid order. The time to impugn the order was when the notice to treat was served. Not having done so then, the applicants cannot now reopen the matter. Having acted on the basis that the Order was valid, they cannot now impugn it. Nevertheless, when road authorities agree with landowners to pay compensation towards the cost of provision of an alternative access to the public road, regard must be paid to the situation in which the landowner will find himself if there is a gap between the time the existing access is blocked off and the time the alternative access is provided. Appeal was dismissed.
