Proposal is expected to survive legal challenge

Despite the Minister for the Environment's assurance that the proposed Planning Bill is constitutional, it is likely to end up…

Despite the Minister for the Environment's assurance that the proposed Planning Bill is constitutional, it is likely to end up being examined by the Supreme Court. But, according to senior lawyers, it is also likely to survive this challenge.

Already there have been indications from the building industry that it will legally challenge the Bill, and, even if this does not happen, the President has the right to refer Bills to the Supreme Court if a constitutional issue seems to arise. The former president, Mrs Robinson, did this with the Employment Equality Bill, which was found to infringe constitutional property rights.

But the first hurdle those opposing the Bill must cross is the fact that the relevant constitutional Article has two clauses modifying, in the interests of social justice, the property rights it protects. Article 43.2.1. states that rights to enjoy and bequeath private property should "be regulated by the principles of social justice", and Article 43.2.2 says the State may accordingly "delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good".

When the Constitution Review Group examined this part of the Constitution it pointed out that there had only been about seven cases where a plaintiff had established an unconstitutional interference with his or her property rights, and that in nearly every one of these "the potential arbitrariness of the interference in question was fairly evident".

READ MORE

The case most often referred to in this context was in 1982 when the Supreme Court struck down the Rent Restrictions Act of 1946. But, as the group points out in its report in 1996, "it was evident that such legislation operated in a palpably arbitrary fashion".

If a legal challenge is mounted to this Bill it would be more likely to succeed on the grounds of alleged discrimination than a straightforward invoking of property rights, according to a senior counsel who specialises in constitutional law.

"It could be argued that it is wrong to require just one category of people to subsidise social housing, when that should be done by the State," he said.

"But on the other hand the builders are being offered a carrot in the form of planning permission. There's a quid pro quo. So it's different from the Rent Restrictions Act. I think this Bill is just the right side of the line constitutionally."

Another senior counsel felt the Bill had been drafted with a view to allowing the Supreme Court to make a balance between the "common good" consideration in the Constitution and the right to profit from private property.

Another senior barrister said: "Clearly if the Government decides to weigh up the needs of one section of society against those of another, and draw up legislation accordingly, and if this is not arbitrary, it tends to stand." or case was not to do with property rights, but discrimination in relation to one sector of the population. Can you ask one section of the population to support social housing? I think you can if they own the land."