Comment on the 1999 Planning Bill has centred almost exclusively on the proposal that 20 per cent of each residential development be used for social and affordable housing. However, the Bill contains other provisions which may be unconstitutional.
For instance, the Bill if passed as it stands, would deprive property owners of the right to a public hearing where they wished to oppose a compulsory purchase order.
Undoubtedly, the most controversial part of the Bill is that which proposes to use the planning permission process to meet the housing needs of those who cannot afford to house themselves. A strong case can be made that this part of the Bill is unconstitutional as it breaches private property rights contained in Bunreacht na hEireann. The proposed change to the handling of compulsory purchase orders is tucked away in Part XIV of the Bill. Anyone facing the threat of a CPO has, up to now, had the right to present their arguments in a public forum and to question the officials responsible for preparing the relevant proposals. The Bill proposes to transfer the approval of compulsory purchase matters from the Minister to An Bord Pleanala and to substitute oral hearings for public inquiries. More seriously, the Board could opt to handle the issue without any hearings at all. What the Bill proposes is to give the Board absolute discretion to decide such disputed matters by written submissions - thus removing the opportunity for the landowner to have a face-to-face encounter with the acquiring authority. I have serious doubts as to whether this proposal is constitutionally proper.
Local authorities have always had the power to compulsorily acquire land for housing purposes. Under the present system, a landowner's constitutional rights are safeguarded in two ways. Firstly, he or she can object to the compulsory purchase order and then the local authority has to fully explain at a public inquiry why this land has been selected . Secondly, if the compulsory purchase order is confirmed, and the price for the land cannot be agreed, compensation is assessed on the market value by an independent arbitrator.
Admittedly, this is a slow procedure and one which many local authorities find difficult to operate. However, it is equitable and has proper constitutional safeguards. If aspects of this procedure are presenting obstacles to the use of the Housing Compulsory Purchase Order, then the way it operates should be reviewed and updated - but it should not be cast aside for a flashy but suspect fin-desiecle model.
COMPULSORY acquisition can represent a major interference with not only the owners' property rights but also - depending on the significance of the lands involved - with their way of life.
It is a far more serious issue than failing to secure planning permission. For this reason, disputed CPOs have only been confirmed after a public local inquiry which is almost courtroom like in atmosphere and proceedings. This ensures the most rigorous possible scrutiny of the proposals with commensurate protection for the landowners at risk. In contrast, oral hearings are required by the the planning code to be conducted "without undue formality". For this reason, I find the proposal to substitute an oral hearing for an inquiry disquieting. But landowners' rights to defend their property from compulsory acquisition would be even more seriously affected if, as is proposed, the Board could use a written procedure behind closed doors to deal with challenges to a CPO. The recent televised sessions of the Public Accounts Committee illustrate perfectly the value of being able to require persons who have made administrative decisions to justify them in face-to-face questioning.
In considering the well-publicised proposal that 20 per cent of every residential development should be used for social and affordable housing, it may be helpful first to take a look at the constitutional position on the rights of private property and how these can be limited for the common good. By Article 43 of the Constitution, the State acknowledges "that man ... has the natural right ... to the private ownership of external goods". This Article goes on to recognise that the exercise of such right "ought, in civil society, to be regulated by the principles of social justice". Accordingly, the State "may as occasion requires delimit by law" the exercise of the rights to private property "with a view to reconciling their exercise with the exigencies of the common good".
The rights of private property traditionally have been considered to include development rights. For this reason, when the Irish planning system came into operation just 35 years ago on October 1st, 1964, it contained extensive provisions for the payment of compensation. However, public outrage at the magnitude of compensation claims together with judicial pronouncements on the constitutional parameters governing the planning system, led to major restrictions being introduced by the 1990 Planning Act. At that time, I was quite confident arguing that zoning could be a reason for refusal for which compensation would not have to be paid, because orderly development is in the common good. The development plan, it is clear, provides the democratically-adopted basis for orderly development.
The general perception in 1999 is that the rights to property do not include the right to have land zoned for development. Certainly, the restrictions on compensation introduced in 1990 have not been legally challenged. Of course, the payment of planning compensation never transferred ownership of the land in question to the planning authority, nor was it intended to. Its purpose was to compensate a landowner for the loss of certain development rights attaching to his property - but it remained his property. What is being considered now is much more fundamental than what we have seen before. Under Part V of the Bill, a condition could be attached to a planning permission requiring the owners of the land to sell up to 20 per cent of the site to the planning authority for merely its existing use value. Such a condition could be imposed if the relevant local authority development plan contained a specific objective to provide social or affordable housing on the land in question.
Such an objective, it has to be acknowledged, would only be decided on after a detailed process involving the preparation by the planning authority of a housing strategy. This strategy would have to take into account the needs of persons on the housing list (social housing) and of persons whose incomes are too low to enable them to get a sufficient mortgage to buy a newly built house on the open market (affordable housing). But this housing strategy would be for the sole benefit of persons who fall into specific, statutorily-defined classes. It would not be drawn up for the common good, except in the broadest, almost ethical sense of the term - that an injury to one is an injury to all.
Of importance here is the fate of the 1996 Employment Equality Bill which required employers not only to employ disabled people but to bear the cost of all special treatment or facilities the disabled person might require. The Supreme Court found these provisions to be repugnant to the Constitution because despite their laudable intention, they attempted to transfer the cost of solving one of society's problems onto a particular group. The parallels with the housing provisions in the Planning Bill are clear. These provisions have other implications for property owners. For instance, since the proposed housing measure in the Bill can only be applied to land zoned for residential use, it seems likely that, once the form of development for an area is established, the possibility of a future change to commercial or some other designation would be very low. Thus, a group of landowners, selected not on the basis of their profits or ability to pay but on the allocation of land uses in a development plan, could have to forego the development value on up to 20 per cent of their land. Moreover, the type of social housing built on the transferred part - halting sites or grouped housing for members of the travelling community - could result in a reduction in value of the other 80 per cent of the land.
There is another way to approach the problem which this part of the Bill addresses - and it is an equitable and constitutional way.
IN 1974, a Committee chaired by High Court Judge John Kenny reported on possible measures for controlling the price of land for housing and other forms of development. Too radical for popular acceptance decades ago, it is well worth looking again at its main proposal. This related to the introduction of a "designated area" scheme under which local authorities would apply to the High Court to designate areas likely to be needed over the following ten years for the purposes of development. Within such an area, the local authority would be empowered to buy land at existing use value plus some percentage of that value, probably 25 per cent.
Berna Grist is a barrister and lecturer in planning law in the Department of Regional and Urban Planning, University College Dublin. Her Introduction to Irish Planning Law was published last month by the Institute of Public Administration.
