The housing crisis and the Constitution
Sir, – John Thompson (Letters, June 1st), in responding to a suggestion that this country could follow the example of Northern Ireland by capping the value of development land, refers to the property rights enshrined in Article 44 of the Constitution and states that, as a result, “the only way to change the status quo would be to pass a constitutional amendment”.
This matter of land value was comprehensively examined and reported on by a government-appointed Committee on the Price of Building Land, chaired by Mr Justice Kenny which produced its report – often referred to as the Kenny Report – in 1973.
In the report, there is a complete chapter devoted to an analysis of all relevant constitutional matters, including those raised by Mr Thompson.
In its recommendations, the committee ensured that there was no question of “arbitrarily seizing any specific parcel of land”, as suggested by Mr Thompson. The committee identified the concept of “betterment” and was careful to determine that such betterment only took place where an investment had been made or was about to be made by the local authority or State in the provision of services required to develop the lands in question. It rejected the idea of defining betterment on the basis of zoning only, due to concerns that such a broad definition may be repugnant to the Constitution.
The report recommended that, in the case of lands that had been or were about to be serviced by public expenditure, the local authority should be entitled to purchase those lands at the existing use value of the land plus 25 per cent by the adoption of a “designated area scheme”.
However, these recommendations were never adopted. The fact that no subsequent government has ever adopted these or similar recommendations means that there has never been an opportunity to have them fully tested in the courts.
In a more recent example, the Part V obligations introduced in the Planning & Development Act 2000, which required that up to 20 per cent of each future housing development could be designated as social housing, were referred by the President to the Supreme Court.
The Supreme Court found that “Part V of the Bill was not repugnant to the provisions of the Constitution”.
However, despite this, and in the face of intense lobbying from the development and construction sector, the then government immediately brought in an amendment that significantly diluted these powers by allowing developers to “buy out” their obligations to provide social housing within each development.
We have seen enough evidence through decades of planning controversies, tribunals, etc, to know that the real issue here is not the Constitution but the skewed balance of power and influence between certain vested interests on the one hand and the “common good”, as referenced in the Constitution, on the other.
I agree with Mr Thompson that “Ireland’s situation is unique and complex” but these attributes do not relate to the Constitution.
As the Government launches its economic recovery plan and promises to “build back better”, maybe we can look forward to this nettle finally being grasped and the balance of power in this area being shifted towards that of the common good, as one should expect from a republic. – Yours, etc,
ADRIAN P CONWAY,