Attempt to ease housing strain satisfies court

The Supreme Court said yesterday it was clear the purpose of Part 5 of the Planning and Development Bill, 1999, was to facilitate the purchase of houses by people who would otherwise not be in a position to buy them.

The court noted that it was an aim of the Bill to ensure that social and affordable housing developments were not isolated from the community.

The Bill provided for a "housing strategy" to be prepared, indicating a specific percentage, up to 20 per cent, of zoned land which would be used to provide "affordable housing", as well as housing for the homeless, Travellers or others who live in unfit or overcrowded accommodation.

Under the terms of the Bill, a property developer either cedes up to 20 per cent of the land comprising the development for such social and affordable housing or provides serviced sites or houses built for such purposes.

The price to be paid by the planning authority for this land is the value of the land before development permission. In the case of land purchased before the Bill was published, in August 1999, the land-owner would be entitled to the sum he paid for the land, if greater than existing use value. There is also a provision for the payment of interest. Developments of four or fewer houses are for housing land of 0.2 hectares or less are not affected by the Bill. Having outlined the aims of the Bill, the Supreme Court heard arguments on its constitutionality on July 24th and 25th.

The constitutional right to private property and the right to equality before the law of all citizens were among the factors considered by the court. It was submitted that the term "eligible persons" was somewhat general. A person's eligibility by income was not in itself enough, as the local authority may consider any other financial circumstances. It was urged that this might give rise to the local authority having a huge amount of discretion in assessing applications, which may lead to inequality. Also, the definition "accommodation needs" could give rise to a situation where some people were being asked to contribute to housing for people who were better off then they were.

It was claimed that because it was left to the planning authority to determine what percentage of the land should be transferred to the authority, this would lead to unjust and anomalous consequences The singling out of applicants for permission for housing developments for adverse treatment in order to increase the supply of social and affordable housing was wholly unjustifiable, it was argued. Those who simply retained a land bank without any attempt to develop it were not affected, it was claimed.

It was also submitted that while it was the job of the Oireachtas to do everything within its power to alleviate the socio-economic problems resulting from high house prices, it should not require owners legitimately wishing to develop their land to bear a disproportionate share of the cost of rectifying those ills.

The inadequate supply of housing, which was probably the most important factor in contributing to the present difficulties, was a matter for society as a whole, and not one seemingly arbitrarily selected group to remedy.

The Attorney General, and counsel appearing with him, submitted that the purpose of Part 5 of the legislation was twofold. Firstly, to enable as many people as possible to own homes and secondly, to ensure that, in so far as possible, the least well-off members of society were not required by economic necessity to live in segregated areas.

It was pointed out that the first objective had formed part of the policy of successive governments since the foundation of the State, and that failure to meet the second objective had given rise to social problems in recent decades. It was also stated that it had been the policy of successive governments to bring about the second objective also. It was submitted that the premiss that the current difficulties on the provision of affordable housing were the fault of Government was incorrect. The Government had been increasing its social and affordable housing output every year for the past four years and proposed to spend £6 billion on social housing over the next six years.

It was submitted that the demand for social housing had increased because of the rise in house prices. Demand for more social housing units had increased because of changes in family sizes and population.

On the level of compensation, it was claimed the land-owner was only being asked to surrender some part of the enhanced value of his land, which had resulted from a planning regime designed for the improvement of the community.

In its conclusion, the court decided that the Bill enjoyed a presumption of constitutionality. Any other finding would have to be comprehensively proven. In relation to an attack on an individual's right to private property, the court found that an unjust attack was not envisaged. The court found also that the objectives the Bill were clear and the greater good was served by Part 5. The Supreme Court considered that while the principle of compensation, at least at the level of market value, was well established in compulsory purchase orders, there was no absolute right to market level compensation as case history indicated.

Applying the tests of case law to the points raised during arguments, the court found that Part Five of the Bill was rationally connected to an objective of sufficient importance to warrant interference with a constitutionally protected right. Given the serious social problems that the provisions were designed to address, the court found that not only had the Bill the right to address the concerns, but that it should address those concerns.

The full text of the Supreme Court judgment is available on the Irish Times website at www.ireland.com