Controversial provisions aimed at controlling the price of building land, proposed by the Kenny report in 1973 and more recently by an Oireachtas Committee, would fall to constitutional challenge, a leading barrister has suggested.
Speaking at a conference on the Constitution at the weekend Donal O'Donnell, senior counsel, said the proposals in the Kenny report that local authorities could compulsorily acquire land at existing values plus a premium of 25 per cent were economically unworkable and old-fashioned.
He added that the legal arguments supporting such a position did not take account of important observations of senior judges and court rulings in recent years. Mr O'Donnell said key proposals of the report would, almost of necessity, be arbitrary and anomalous.
"It would not apply to all land or even all land in the designated area, but only to that land which was being acquired compulsorily by a local authority. It is very hard to conceive of a provision surviving constitutional challenge where, in the case of two adjoining owners, one could be compulsorily expropriated at agricultural value plus 25 per cent whereas his or her neighbour could sell, on the open market, for the full development value and where indeed the first owner may be a traditional farmer and the second, the archetypal speculator," he said.
Mr O'Donnell also questioned other aspects of the proposals.
He said that local authorities were no longer in the business of large-scale land acquisition. He said that it was also not clear, as a general proposition, that the enhanced value of development land was created significantly by the availability of public services. He also said a critical aspect of the Kenny proposals was that the scheme would be administered by the High Court as the assessment of compensation was considered a judicial function. However, he said this view of the extent of judicial function no longer held sway.
"It is therefore a remarkable feat of levitation that the Kenny report, shorn of much of its practical and intellectual underpinning, could, nevertheless, remain sufficiently upright to be endorsed in the 2004 All-Party Oireachtas Committee on the Constitution," Mr O'Donnell said.
Mr O'Donnell suggested that the Supreme Court ruling on the payment of charges by those maintained in a hospital or health board (Health Amendment No 2 Bill 2004), came closest to identifying the essence of the guarantee of property rights in the Constitution. He said this ruling looked to the text rather than to proportionality or dignity.
