JOINT COMMITTEE ON THE CONSTITUTION debate

Property Rights: Presentations.

Chairman

Is the schedule for today's proceedings agreed? Agreed. I take this opportunity to ask all visitors and members to switch off their mobile phones, if they have not already done so. The first item on the agenda is the presentation by Sinn Féin, represented by Deputy Aengus Ó Snodaigh and Mr. John Dwyer. You are both welcome.

Before we begin, I must remind visitors that members of this committee have absolute privilege but this same privilege does not apply to witnesses appearing before the committee, with the exception of Deputy Ó Snodaigh. Members are reminded of the long standing parliamentary practice to the effect that members should not comment on, criticise or make charges against a person outside the House, or an official by name, in such a way as to make him or her identifiable.

I invite the Sinn Féin representatives to make their presentation. The time limit for each group is six to eight minutes and I hope they can adhere to that. We have already got your submission, which we have studied. I suggest you synopsise the submission and perhaps you will take any questions that may be asked.

Mr. John Dwyer

Thank you, Chairman. I apologise on behalf of my colleague, Mary Nellis, who is unavailable today. I also thank the committee for hearing our submission.

Sinn Féin believes that the right to housing is a fundamental right which must be enshrined in the Constitution. It is also our assertion that the Constitution must be amended so as to clarify the Articles which deal with the rights of private property. Property rights should be dealt with in a single, self-contained Article, and social justice must be given pre-eminence to the rights of private property.

In looking at the way various issues are affected by the Articles in the Constitution which deal with private property, the recurrent theme is that, in practice, the social justice component has been subordinated to the needs of private property.

With regard to access to the countryside, our party believes that the legislative mechanism available to local authorities to deal with this issue has been shown to be overly cumbersome and has not served the people of the State well. We believe the landowners should not be held legally responsible for compensation claims arising from the use of these pathways by members of the public, and that there should be free access to property.

On house prices, the current housing crisis is a real crisis. Attempts have been made to play down that crisis but the people who come to us daily are the ones who are suffering. Sinn Féin believes that Government intervention is necessary to deal with rising house prices through taking measures to control the price of building land. It is a straightforward, simple mechanism.

Deputy Aengus Ó Snodaigh

I will deal with a few points, most of which are contained in the section in our submission on compulsory purchase orders, rezoning and planning. One of the practical limitations to private property are compulsory purchase orders, which are overly used. In terms of infrastructure, we believe compulsory purchase orders can be used to facilitate social housing and local authorities who will ensure they can acquire land at a price below the market price, where necessary, for the common good. We outline some of the legal findings in respect of compulsory purchase orders. We believe that, where necessary, compensation should be based on the existing use value plus a percentage, as outlined 30 years ago in the Kenny report.

In the four points at the end of that section we state that we support the use of compulsory purchase orders, in particular against speculators who are sitting on land banks and derelict properties. In such incidents, compensation might not be merited, and compulsory purchase orders should be used by the State or allowed to be used by the local authorities to regain possession of the land.

On rezoning and planning, we believe the State is entitled to compensation if infrastructure changes were made and services put onto the land to increase its value. It is not morally acceptable that developers and speculators should make huge profits at the cost of the community, which is then unable to build houses which can be sold to the community.

The State must have the ability to tackle the problem of landowners whose land has been rezoned but who are still sitting on that land. The amount of land which is zoned and available for residential housing could accommodate 327,784 houses. There is currently enough zoned land to tackle the housing crisis. The figures suggest that speculators are sitting on land; therefore, compulsory purchase orders or the repossession of the land should begin to ensure the common good. The theme in our submission is that the common good should enjoy a higher right than the right to private property.

We believe there is an onus also on the Government to monitor the cost of building land, with specific reference to the gap between the cost of building houses and house prices. That is a function we believe could be taken on by a resurrected Land Commission, and there are other issues the Land Commission could also address. This joint committee should not restrict its view, as the Kenny report was restricted to dealing with the limitations of the Constitution. As this is a Joint Committee on the Constitution it can examine the possibility of changing the Constitution to allow us go further than the Kenny report and other reports, and ensure land which is available for building is not hoarded.

The last item with which I wish to deal is the abolition of ground rents. Ground rent landlords should not be compensated. Ground rents should be abolished forthwith. There is no need for constitutional change for that but if it is required it should be done as a matter of urgency. The hangover from colonial days in Ireland should be got rid of. Those ground rent landlords, including some Irish companies which have resurrected the practice of ground rents in recent years - a facility for making money and putting many into dire circumstances because one-eighth of the value of a house in this city is a huge figure if one wished to buy it out - should not be compensated.

Deputy McCormack

There is much in that submission with which we would all agree but I do not know if many of its proposals are relevant to constitutional change. While we would all agree in principle with the part of the submission dealing with ground rents it is not a matter for this committee but rather for legislation. The legislators have been tickling at that problem for a long time without tackling it. There are many good aspirations in the Sinn Féin submissions but perhaps we could get guidance on whether it is relevant to a review of the Constitution.

Chairman

In regard to the guidelines we sent out, some of the points made on the question of property and rezoning of land are relevant but there is a question mark hanging over ground rents. Obviously some of the issues can be dealt with by legislation. Do members wish to comment on that point?

Deputy Neville

Some of the submissions made to us have said, "if it is not broken do not fix it". In regard to the Sinn Féin laudable submission I would interpret that it is up to us, the Legislature, to deal with it and it is our duty to deal with it. If we support it we should deal with it as an Oireachtas. Putting it into the Constitution will involve Supreme Court tests and all kinds of delaying mechanisms whereas the Constitution, at present, will facilitate what has been proposed. I would like to hear your views on that issue.

Senator Dardis

I welcome the submission and wish to dwell on the constitutional aspects. The submission is specific in terms of religious denominations and the deletion of Article 40.3.6° but does Sinn Féin have a suggested wording in terms of the right to housing as a fundamental right and having that included?

Chairman

We will take the first three questions, one of which is general and concerns whether there should be a constitutional change or legislation.

Deputy Neville

Housing is a social issue, it is not a property issue.

Deputy Ó Snodaigh

Most of it has to do with property. We believe some of our suggestions require legislation but the excuse given for not acting on them until now was that there was a constitutional problem. This committee should be able to say to the legislators there is no constitutional problem; we do not need to deal with it. That is the reason it was included in the submission. If a message comes from this committee to say ground rents can be dealt with by legislation, it should be dealt with.

On the issue of private property and the right to housing, we do not have a specific wording. We are working on it and trying to look at other models in other countries to see if a wording can be found which allows for the right to private property and the right to housing. One of the problems with the 1937 Constitution is that the right to private property can sometimes be to the detriment of the common good, for example, the holding of land banks and property by speculators.

Deputy Neville

We are advised that can be dealt with under the present Constitution.

Deputy Ó Snodaigh

If that is so and if that is the message from here, I still believe the Constitution should have contained explicitly in it the right to housing accommodation. We can deal with the standard of that housing through legislation. In other jurisdictions that is being looked at. Is it just a case of the people of Ireland having the right to housing? Will it be as simple as that or do we need to expand it? The Constitution should be as simple a document as possible. It might end up being that simple but we will come back to it.

Deputy O’Sullivan

I welcome the submission. On the issue of land banks being held and the suggestion that compulsory purchase orders could be used and that those who hold on to land while its value increases should not be entitled to compensation, did Sinn Féin look into whether the matter could be dealt with under current legislation or did the party consider it was necessary to change the Constitution?

Deputy Ó Snodaigh

We did consider it and we have stated in our submission that in most cases it can be dealt with through legislation. The problem is that the political will has not been there until now and the excuse given was that there were constitutional difficulties. The reason it was included in our submission was so that the committee could send out the message that there is no problem, that the committee does not need to deal with this matter again, that it is a legislative problem and that we can deal with other issues in the Constitution that need to be changed.

Deputy J. Breen

In relation to entry onto property, a landowner should be exonerated from all blame and should not be held liable if a person has an accident on the land. That would require a legislative change not a constitutional change.

Chairman

It is clear from the submission that is what it desires.

Deputy Cuffe

I welcome the submission. In page six of the submission Sinn Féin points out "that there are instances where compensation is not merited", presumably no compensation whatsoever. Will the Deputy give examples? I presume what he is looking at is a building which has been derelict for many years and where the owners did nothing about it. I am curious as to whether he has any other examples of where compensation is not merited.

Deputy Ó Snodaigh

I do not have specific instances, but I am concerned with derelict sites or land which have been rezoned but have been purposely held to increase value.

Chairman

I thank the members of the delegation for their presentation. While the remit of the committee is narrowly focused, I hope that over the next four or five months we will be in a position to conclude if constitutional or legislative change is required.

Sitting suspended at 11.22 a.m. and resumed at 11.25 a.m.

Chairman

The next item on the agenda is the presentation by the Dublin Transportation Office, represented by Mr. John Henry and Mr. James Muldowney. You are both welcome. I must again remind visitors that members of the committee have absolute privilege but the same privilege does not apply to witnesses appearing before the committee. I now invite you to make you presentation in six to eight minutes, which will be followed by questions. You have already made a detailed submission, which we have studied. In view of this, perhaps you would provide the committee with the salient points.

Mr. John Henry

I thank you for inviting us to this important committee. My name is John Henry and I am director and chief executive of the Dublin Transportation Office. My colleague, James Muldowney, is a chartered surveyor, town planner and barrister.

The DTO was established in 1995 by statutory instrument. Our principal function is to co-ordinate and monitor strategic land use and transportation planning in the greater Dublin area. We cover the four counties, Dublin, Meath, Kildare and Wicklow. It is also a requirement of our office to review and update our transportation strategies and policies at least once every five years. I am sure the committee is aware that in 2001, we published a strategy for Dublin, Platform for Change, which is not only a transportation strategy but also sets out land use policies and so on. It is a comprehensive policy for the region. We are also involved in the current review of the planning guidelines for the country, with specific reference to the Dublin area.

The DTO is interested in removing barriers that prevent the timely delivery of infrastructure, especially transportation infrastructure, and the promotion of sustainable land use development policies within the region. I will now ask Mr. Muldowney to summarise our submission and focus on the key points.

Mr. James Muldowney

I thank the committee for affording us the opportunity to make this submission to what is a very important issue. I will deal with the headings we consider appropriate to the DTO. Articles 43 and 40 of the Constitution deal with private property and the common good. In essence, Article 43 deals with the institution of property as such and is perhaps directed to the State and its attitude to the right to private property, which is counterbalanced, of course, by the interest of the common good. That is not the main focus of our submission which relates to Article 40, or perhaps in the context of the 1996 review, the possibility of amalgamating the two Articles.

Article 40 deals with personal rights, for example, the right of a citizen to a piece of property. Article 40.3.1° states: "The State guarantees in its laws to respect, and, as far as is practicable, by its laws to defend and vindicate the personal rights of the citizen.". One of those personal rights is the right to private property. On the question of property, a balancing exercise runs through the Constitution in that it seeks to balance the right to property with the common good. A body of legislation and case law relates to that, to which I will return later. Article 40.3.1o states the State will respect, as far as practicable, the personal rights of the citizen.

Article 40.3.2° states: "The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.". The Constitution here acknowledges that there is no absolute right to private property, but it will protect the personal right to private property against unjust attack. The key test here is whether there is an unjust attack on property rights if a law is introduced. The law must be tested as to whether it constitutes an unjust attack. A body of case law deals with these tests. I do not have time to elaborate, but I am sure members of the committee are familiar with it.

The case law culminated in what some might consider to be a high point in connection with the Article 26 referral of Part V - the social housing provision - of the Planning and Development Act 2000. The provision gave local authorities the power to acquire land at less than the market value. An Article 26 judgment delivers one judgment; there is no minority judgment. Mr. Justice Keane basically stated that a planning permission is essentially an enhancement or enlargement of property rights which is conferred on the applicant or the owner of the land. Prior to this, the jurisprudential thought was that one had a right to develop one's land subject to the law of tort. However, in 2000, the Supreme Court said this was not the case and that a planning permission amounts to an enhancement of one's rights.

This is a fundamental change. The Supreme Court basically also held that compensation at less than market value can be constitutional. It also stated that, in exceptional cases, compensation at nil value could even be constitutional. This was a landmark judgment. It held that the social housing scheme was rationally connected to an objective of sufficient importance to warrant interference with a constitutionally protected right and, given the serious policy and social problems which the scheme was designed to meet, it held that there was an undoubted relationship between these concerns, which in a free and democratic society should be regarded as pressing and substantial. In other words, what it was saying is that, yes, property rights are important, but they are not so important that they cannot in some way be attenuated in the interests of social good and of the common good, that land can be acquired at less than market value, and that market value is not necessarily the only test of a just compensation.

The court was satisfied that the provisions of Part V impaired those rights, that is, property rights, as little as possible and that their effects on these rights are proportionate. One of the constitutional tests is the following, "Is the legislation which addresses a social problem and relates to the common good, proportionate?", and that test of proportionality runs through a great many constitutional issues, not just the constitutional issue of property rights.

The court appeared to recognise the iniquity of having to pay compensation to a landowner for value enhancement which was created by Government fiat or action, in other words, where the Government carried out infrastructural works or where the Government was involved in rezonings, etc., which effectively enhanced the value of land. Why then should the Government, when it needs to acquire the land, have to pay for the land value enhancement which it has created?

The key point I would make is that to reduce the prospect of repeated challenges to similar legislation in the future, this rebalancing of private property versus the common good should be made manifest in the Constitution. In other words, when you are introducing legislation in an area such as this, you are always asking yourself "Am I being second guessed by the Constitution? Can I introduce legislation which will not be constitutionally fragile?". This is one of the big problems. You can see from the body of case law and the constant challenges on these constitutional issues that this is something of which any drafter or proposer of legislation in the Dáil must be aware.

To reduce this level of uncertainty it is necessary to be explicit in the Constitution on property as to what factors can be taken into consideration which would restrict property rights. The two I suggest here, which could be introduced in a manner consonant with the 1996 recommendations which are in the report at page 366, are that sustainable land use and transportation planning, and the protection of the environment, should be two checks on property rights essentially. That would give much more certainty to the legislators when they are introducing legislation they think is necessary in the interests of the common good.

Having dealt with that issue, I want to move on to compulsory purchase. We are particularly concerned with the provision of transportation infrastructure. We are also concerned with the integration of land use and transportation planning. This is considered to be good transportation practice and it is something which has not really been embraced in this country but we hope in the future will be embraced more progressively, and which, if it is, will cut down some of the problems we have in our cities at present.

If you put in a new metro line, for example, you may find that the new metro line leads to an enhanced value which is created around the stations and along the line. This is especially so in a city, for example, that suffers from chronic congestion. In such a situation the Government pays for the value created, or for some of the value created, by rezoning and by infrastructure provision. In addition, if you acquired land for the metro, some of the retained lands actually go up in value as a result of putting in the metro or the transportation infrastructure and, paradoxically, you end up paying a high market value just to acquire the land to facilitate the implementation of the infrastructural project. In addition, the landowner who retains land also gains a windfall because the value of his lands increase. Basically the point that has to be made is: why should the Government pay twice? The existing use value is not necessarily a disproportionate burden on the person who sells the land and if you look at the Kenny report you might, for example, decide that existing use value plus a percentage such as 25% or 15%, depending on what is deemed appropriate, could be a fair compensation for land which is acquired for such projects.

The compensation rules could be changed. I realise that. There are two ways of handling this, in other words, you can change the legislation and assume that the body of case law built up will facilitate this and that the change in legislation will not be constitutionally fragile, but again I come back to the point. In order to introduce certainty, a change in the Constitution will give you much more flexibility and allow you to be more creative in the framing of the legislation with the certainty that the chances of it being successfully constitutionally challenged are significantly less.

I will move on briefly to zoning. When we talk about sustainable and unsustainable development,——

Chairman

You should conclude in a few minutes.

Mr. Muldowney

In terms of zoning, some of the points I already made are appropriate. Zoning is an enhancement of land value - it is something that is created by the community - and if, in order to recover some of that, it is necessary to acquire land at less than market value, it is deemed that this is reasonable and in the interests of the common good. As a result of that, I again suggest that the same two provisos and checks be introduced into the Constitution to accommodate that kind of legislation.

The price of development land is the next topic with which I will deal. Because of the enhanced price of development land over the past few years, there has been a tendency to hoard land and this has been easy to do because there are no rates on agricultural land and zoned agricultural land can be held without any real penalty. The costs of the acquisition of this land are so prohibitive that local authorities cannot acquire the land.

The Kenny report made recommendations with which the committee will be familiar, and also looked at site value rating. Again the point is made that to cut down on the scope for challenge in terms of the acquisition of land below market value, it is posited that three legal restrictions on the right to private property should be introduced in the Constitution: the raising of taxation and revenue, and the other two I mentioned, sustainable land use and transportation planning, and the protection of the environment.

I will skip through infrastucture because some of the points I have made already are repeated in that section and I will move on to the penultimate comments on house prices. Without going through the factors which have led to the increase in house prices, one of the major factors was the high cost of serviced sites and the high cost of building land. Again, in order to reduce house prices, it is necessary to reduce the costs of building land and to stop land being used as a commodity.

Land being used as a commodity essentially can mean that some key lands on the edges of cities remain undeveloped in that they are held as an investment and then a leapfrog effect takes place. Lands are rezoned further out from the city and developed and then you have the consequent commuting and this almost slightly doughnut effect which occurs where the most appropriate lands which should be released are not released. To facilitate the timely release of these lands, it is recommended that the changes to which I have already referred should be implemented.

Yes, it does to a certain extent because, to pick up on a point on which I did not have a chance to enlarge, if land is rezoned, that does not mean it will be developed. A builder or developer can wait until he believes it has reached maximum fruition. It is the timely release of the appropriate land and the development of the lands around the stations that concern us.

Deputy Devins

I thank the deputation. I am not a lawyer and found it difficult to follow some of the legal implications. To clear my mind, is the delegation recommending a change to the Constitution?

Mr. Muldowney

Yes.

Deputy Devins

Does the delegation have a wording it could submit to us for consideration?

Mr. Muldowney

I have mentioned the three checks which should be introduced. If the committee wants me to submit something at a later date, I do not have a specific article redrafted as I did not think that was my function as someone making representations. Regarding the right to private property, which now has antecedent status to positive law, it might be considered whether that phrase should be retained. In addition, it should be specified that the right to private property was qualified by the exigencies of the common good which include the raising of taxes and revenue, sustainable land use and transport planning and the protection of the environment. There may be other issues which other advocates could put forward. I do not see this as comprehensive but these are changes we feel the DTO would be interested in seeing.

Deputy Devins

That is what I understood from the submissions but it would be helpful if the delegation made a further submission outlining precisely the changes it would like. The Constitution is very succinct and that would be helpful.

Senator Ormonde

I welcome the deputation. The pendulum is swinging between the right to private property and the common good. The more I think of this the more confused I am. I do not know at this point what side I will come down on but there will have to be changes. I find it very difficult to accept that one evening one has agricultural land and the next evening one is a millionaire. I have difficulties with that and if the Constitution could handle that I would certainly go down that route.

Regarding compensation and acquiring land at existing values, I do not know how that is possible. There were so many schools of thought on this issue, yesterday and today, that this will be a huge hurdle. I would welcome an amendment to the Constitution to give many people, not the few, the benefits of the boom. That is why I am anxious for a constitutional amendment, but I do not know if it will be possible to get a wording that will encompass what we have discussed today and yesterday. Delegations have had different views on whether a constitutional amendment or legislation should be pursued. There is a huge amount of work to be done but I appreciate this presentation.

Chairman

Over the next few days we will get other views but that is a matter for the committee to decide.

Senator Dardis

I thank Mr. Henry and Mr. Muldowney, whose delegation is one of the few to deal with the substance of what we are discussing here rather than peripheral legal matters though they may be germane to the argument. I want to focus on Deputy Devins's point about wording. It would be helpful if the delegation produced a wording, as in this and other areas where we are confronted by a universal wish for what is to be achieved, putting that into words is very difficult and fraught. We saw that in the example I quoted where there was a totally unintended side effect. People who wanted to achieve one thing ended up achieving something completely different. Producing a wording would be valuable to us.

Regarding the existing use value of land and establishing that as a baseline, does the delegation accept that there are plenty of circumstances where development, particularly in infrastructure, has a negative effect on the value of land? I am thinking of agricultural land outside the greater Dublin area where a motorway goes through the land. That renders land difficult to farm, so that is another aspect of this. There would have to be compensation in that case.

Mr. Muldowney

But it is compensated.

Senator Dardis

I know it is but the inference of what Mr. Muldowney said was that apart from not enjoying the gain, one should not benefit——

Mr. Muldowney

Mr. Muldowney suggested that it would be better to buttress these changes within the Constitution. Given what he said about the drafting of legislation, does he think this is often unnecessarily conservative and careful because of fear of constitutional challenge? The experience of the Opposition when dealing with legislation is that the Constitution is often thrown at us as the reason something cannot be done or an amendment cannot be incorporated. Does this aspect partly colour Mr. Muldowney's view that we should amend the Constitution?

Mr. Muldowney

I certainly would not disagree with that point. In fact, I am dealing with aspects of section 49 of the contribution scheme in which some provisions have been included. Sections 48 and 49, which are inter-related, are very complicated sections to deal with. Effectively, to accommodate the antecedent status of property rights, some provisions have been included which are highly ambiguous and almost meaningless to some extent when one tries to analyse them and apply them in the field, so to speak. I can see that the intention was to protect existing property rights but it almost went overboard to do so. This has probably resulted in a great deal of uncertainty in the section which in future could lead to a constitutional challenge.

Obviously I did not explain myself very well. I echo the sentiment that this was a landmark decision in so far as it stated that planning permission represented an enlargement or enhancement of one's property rights. Even though it did not state it explicitly, it referred to another American case, stating that it was conferred by the community. In other words, prior to the Supreme Court decision, the previous position of most eminent lawyers was that one had a right to develop one's land subject to the law of tort, which includes nuisance and so on, and the planning Acts. The planning Acts were just an infringement of one's fundamental prima facie right to develop one's land.

The Supreme Court has ruled that a planning permission is an enhancement of one's rights. The corollary of that is that if it is an enhancement of one's rights which is conferred by the community, then surely the community is entitled to some percentage to be recycled back into infrastructural projects and other projects which effectively enhance these rights?

Chairman

Are you saying that may not go far enough and that a better balance in the Constitution is also required?

Mr. Muldowney

Yes. If one reads Mr. Justice Keane's judgment in detail, it states that there must be a prima facie assumption that, generally speaking, compensation should be made at full market value. He was making an exception more or less for Part V. If the Constitution is not amended, any of these issues that needs to be addressed through legislation will consistently be tested. Those who promote and draft the legislation will be forced to watch over their shoulder for the potential nemesis which will undo their best plans.

Sitting suspended at 12.10 p.m. and resumed at 12.15 p.m.

Chairman

The next item on the agenda is the presentation by the Irish Senior Citizens' Parliament, represented by Mr. Michael O'Halloran, Ms Sylvia Meehan and Mrs. Ina Broughan. I welcome the delegates to this meeting.

I remind visitors that members of this committee have absolute privilege but the same privilege does not apply to witnesses appearing before the committee.

I invite the delegation to make your submission and to confine your remarks to six to eight minutes. The committee has already received a written submission from the delegation which has been studied by the members. I suggest that the delegation delivers a synopsised version of the written submission and members may then wish to ask questions.

Mr. Michael O’Halloran

I wish to formally introduce Ms Sylvia Meehan, president of the Senior Citizens' Parliament and Ms Ina Brougan, treasurer.

We are an organisation of older people with 90,000 members. We tried to calculate that in terms of quotas but we have given up.

Senator Dardis

We can do that.

Mr. O’Halloran

We are a big organisation. Like all voluntary organisations, we have big aspirations and limited resources. We would like to have made a more detailed submission to the committee on this important issue. We are speaking not just for ourselves as older people but for our children and grandchildren who have suffered greatly because of the failure of our community through its legislators and its own failure to deal with these issues. We have failed young people in the sense that housing has become almost impossible for low income families and even for middle income families.

I will give an example to put this into its human context. I started off as a baker and I worked in a bakery. There was hardly anyone in that bakery who was not able to afford a house. They struggled to save the deposit and they had high interest repayments but they could pay for a house. Today, people in a similar job and with both people in a couple working, could not afford a similar house for their family. Despite the great cycle of economic development which we older people welcome, because we and our children and grandchildren have been the beneficiaries, we have taken our eyes off the ball with regard to land. We need to turn our attention to that question and find a solution in the context of the Constitution and in how legislation is passed in the Dáil.

This question has exercised the minds of men and women for a long time. There have been both micro and macro experiments in trying to deal with it. One of the micro-experiments was carried out by an Irishman, William Thompson of Cork. It was an interesting co-operative idea. He went broke and the experiment did not come to fruition. Robert Owen, the Utopian socialist in Wales, did the same thing. They were important people who thought about the organisation of society. The other people who tried to come to grips with this issue were the socialists. Karl Marx spent years in the British Museum and not months in a committee, working on his volumes of Das Kapital. We are all aware that the philosophy failed. The Catholic Church had the most radical views of all on the subject of property. It is amazing that it is not preached from pulpits except on very rare occasions. I recommend that the committee members read the Veritas publication, Catechism of the Catholic Church, part three, section two, page 513. It sets out the purpose of property. It does not use words such as “nationalisation” or “adequate compensation”. In some cases, it talks about the appropriation of property for the common good.

There is a balance to be found between individual rights and the rights of a community. As a community, we need to reflect on this issue and to ask ourselves whether the Constitution that has served us well in many ways but was amended in the light of social and economic development, could now be an obstacle to further social development. As older people, we must not be afraid of the future and we must not be afraid of change. If we are to have a legal system that recognises and identifies the importance of social rights as against individual property rights, then we must have the courage to attempt to have a Constitution that facilitates this rather than forming an obstacle.

I listened to the previous presentation. It is true that the Oireachtas must have courage and introduce legislation but it should not be the case where legislation could be challenged as being unconstitutional. The great thing about our Constitution is that it is the people's legislation and not the Dáil's or the Seanad's and this is what it must be seen as. The Dáil can and does facilitate the amendments to the Constitution as necessary through enacting the legislation to have the amendment, but the people enact it. The people will have to be given an opportunity of setting out values in relation to property rights and duties. That can only be done through referendum. However, I recognise as has been said by members of this committee that the framing of such an amendment to the Constitution will prove difficult but not necessarily impossible.

If it can be achieved, we want to see serious consideration given to the type of legislation we now need in the housing area. There have been many attempts in the past to deal with this and I am thinking particularly of British ones. I believe the 1967 commission on land went as far as wanting to get rid of zoning completely. Members may ask what it would mean to get rid of zoning. It would mean pockets of land could not be held by a small number of people looking for enhanced value over the original owners. They wanted land to become more available for development purposes and the only criterion would be the grant of planning permission based on very strict planning criteria. The reason we have our tribunals is that not enough land was zoned. If enough land had been zoned there would have been no need for people to influence the outcome of political decisions. I say that simply by the way.

The members of the committee have our submission setting out some of the areas we would like to see tackled by the legislators and not by the Constitution. The Constitution is only a facilitating law. We want to see the State more involved in creating land banks. We believe it is a stroke of the pen in granting planning permission by the local authority that enhances the value of the land and not somebody putting a spade in the ground. It is outrageous - I hope that is privileged in using that word - when a site today can cost more than it costs to build the house. When the architect, building contractor and the workers get less reward for their efforts than the owner of the site, there is something terribly wrong in that system and it has to be tackled in many different ways.

The Constitution is a wonderful document. Probably the best part of it is the part about which one cannot go to the courts. I do not know whether the committee has been looking at this. Article 45 deals with the principles of social policy. These are directive principles and it is not possible to go to the courts to enforce them. We know who the architects of the Constitution were. They recognised there was a need for State intervention to protect the common good. Article 45.2.3° states that the State shall, in particular, direct its policy towards securing:

That, especially, the operation of free competition shall not be allowed so to develop as to result in the concentration of the ownership or control of essential commodities in a few individuals to the common detriment.

That was their aspiration. That is guidance to the Oireachtas. Unfortunately we cannot go to court on that and I wish we could. That is what I would like to see more solidly in our Constitution. However, it is there as policy guidance to the Oireachtas and is kept out of the courts. Even this problem of the concentration of ownership to the detriment of the common good was recognised by the original framers and architects of the Constitution. Unfortunately, as with many things in Ireland, we get to things late and out of breath. I hope the committee will get to this one and do something about it.

Chairman

I note your view that the Constitution should be changed. At the outset I compliment you. I have great admiration for the enthusiasm of people such as you who still have a great interest in not alone your generation, but subsequent ones. This has been a very welcome intervention and you have made some very valid points.

Senator Daly

I welcome the delegation. Mr. O'Halloran mentioned the duty of property and the need to change the Constitution. How would he define such a constitutional amendment?

Mr. O’Halloran

It is very interesting. The Constitution may not be as bad as we think. With all due respect, our problem may have been judge made law. Three groups enact law in our country. The Oireachtas can be considered as a combined House of the Seanad and the Dáil. If something is tested in the courts, the courts may interpret that law in a way that was never intended by the Oireachtas and hand down a new law. This happened in a famous case concerning a midwife in Limerick. When she lost her job with a health board she went to court to seek remedy. Her dismissal was held to be legal because the judge said that while the Oireachtas might have intended one thing, that was not what it did. He interpreted it and handed down a new definition of dismissal for redundancy. This was later put right by Mr. Brennan, a Minister from County Donegal. We have the problem that not only is there law but there are also interpretations of law.

Our Constitution not only talks about the right to property; it also talks about the duties a great deal. In the sub-sections there is a lot about duty. The problem is that when one goes to court, the right of property seems to take precedence over its duties. I am not a constitutional expert and I do not claim to be an expert in anything. As my grandfather said "experts on tap are never on top", which is also an important consideration.

However, we have to say what we want out of property. The first thing we want is good and adequate compensation for property owners, who are not speculators. I will give an example, if I may. Matthew Macken was the city manager here at one time. He was a tough man and was tough on councillors. I became a councillor the year after he retired. I was rather glad I came then and not before as he was a very tough man. He made a statement at the city council one night that was incorporated into the evidence given to the Kenny commission on land prices.

When he left his office to look for land in north County Dublin or south County Dublin for housing purposes, he was followed by agents who parked outside his office waiting for him to make a move. If they thought he was interested in certain aspects of land they then moved in and bought it in advance of the corporation. The corporation could not acquire the land until it was rezoned at which time a compulsory purchase order was made. The compulsory purchase order always took into account market prices. The man or woman who sold the land originally might have got a good price for it, but nothing like what the speculator got. There are a lot of things happening there.

As was said earlier, maybe legislation is the way forward. The problem is if the legislation is to be hampered by a narrow definition of the right of property with no emphasis on duties, that has to be strengthened. I heard the Chairman state we might study Spain and Portugal. If possible the committee should also look at the Japanese and German systems of land use. There the emphasis is totally different.

Deputy O’Sullivan

I welcome the delegation. Would I be right in interpreting Mr. O'Halloran as saying he wants more of an emphasis on the common good as opposed to the rights to private property? While there is already a proviso in the Constitution that the right to property is tempered by the common good, Mr. O'Halloran wants more of a swing in favour of the common good.

Mr. O’Halloran

It is a very simple reason.

Deputy O’Sullivan

I know Mr. O'Halloran heard some of the discussion with members of the previous group who suggested specific areas that should be clarified in the Constitution as being qualifiers of the right to private property. They did not mention the right to housing, but mentioned sustainable land use, transportation, planning and protection of the environment. Is Mr. O'Halloran suggesting that other rights, such as housing, should be added? His submission indicates a particular interest in that area. In relation to the land bank issue, I fully support his suggestion that it should be possible for local authorities to establish land banks for good social purposes. Does he feel that can be done, under the Constitution without a requirement to pay substantial compensation to owners of land or does he consider that the Constitution needs to be changed in order to incorporate his proposals with regard to a land bank?

Mr. O’Halloran

One has to be careful, even if given the freedom to write our Constitution - one cannot write everything into a constitution. A constitution has to be a protector of rights and an exponent of duties. It has to be so worded that it is not an obstacle to legislators doing what they have to do, not just today or tomorrow but over a long period. It is a matter of determining the right time to create land banks, which should be by majority vote in the Dáil, where the matter will go through various stages of refinement and lobbying by interest groups, resulting in the emergence of a package designed to achieve social good for the greater number. That is how the Catholic catechism describes the purpose of property - to do the greatest good for the greatest number, not just for the few. That process results in very detailed legislation.

All one can do in a constitution is to provide certain guarantees for people. The original property owners would also have rights - I recognise that. My concern relates to the use of property rights to circumvent or, as it were, laugh in the face of society which is trying to provide the very basic requirement of shelter. That is very fundamental to human needs in any political system, regardless of one's ideology, in terms of decent human values. While there may be ideological arguments in terms of the political left, right or centre, there should be no argument as to people's fundamental rights. The right to shelter is as important as the right to property, but it is not recognised as such.

I recognise the great difficulty of getting our Constitution right in that regard by removing the barrier to action by the Oireachtas, if it so wishes. In practice, it may never do so - that is not for me to say. However, it should not be hampered by the prospect of legislation being struck down by the Supreme Court, despite agonising hours of debate by the elected representatives of the people. We are also the servants of the people, albeit in a different way. Politics is a most noble calling which is liable to fall into grave disrepute, perhaps because of individual behaviour. The legislative process must be allowed to continue, unhampered by a constitution which prevents innovation.

It is a little bit like that - not quite as powerful, but we are working on it. In our organisation, we have people from urban and rural areas. Our membership includes retired farmers, former business people, PROBIS clubs, the ICTU retired workers committee and SIPTU. We are a rather universal group in the sense of representing the whole community. We are non-party political, although we are very political in pursuing our objectives and issues with all political parties.

In relation to the point raised by CORI with regard to local authorities, I regard that as an issue for the Dáil rather than a constitutional matter. However, if the Dáil regarded that as the way forward, the approach should be on the basis of facilitating appropriate constitutional change. I am not familiar with all the mechanisms involved; they should be debated and evaluated. We would favour the creation of new towns, with the necessary transport infrastructure and industrial development.

The last question deals with the duties of property. As I understand it, property has many duties which I will deal with to the best of my ability - I can only analyse it by reference to the Catholic catechism. One of the mirror situations in life is that for every right there is a duty; that is a simple philosophical truth. Man should regard the external goods he legitimately owns not merely as exclusive to himself but common to others also in the sense that they can benefit others as well as himself. The ownership of any property makes its holder a steward of provenance, with the task of making it fruitful and communicating its benefits to others, first to his own family. In other words, one has a duty to oneself and others. For example, it would be totally unacceptable to society that a vital service such as the blood bank should be a private monopoly rather than a State service.

Duties arise from the needs of other people. To understand those duties, one has to understand what land can do to enhance the needs of other people if it is available at a reasonable price - by which I do not mean an uneconomic price. We cannot have a law which would exploit farmers, for example; that would be socially unjust. Social justice must be for everybody, not just certain sections. In buying land, it would be our duty to ensure that there was adequate and fair compensation, based on appropriate criteria. If other people bought and retained the land to enhance its value through rezoning or the granting of planning permission, the duty to the rest of us - to make the land available at a reasonable price - could not be realised. I would like to reflect further on this important question before sending a further submission to the committee, giving details on the issue of duties. It is not true that I should have been better prepared for this meeting, as I was prepared for it. A great deal of work has been done in this area. Case studies in various countries have examined the different approaches. It will take me a few weeks to compile another submission but I would like to do so in response to the question I have been asked.

Senator Ormonde

I welcome the deputation. I was about to ask the same question. One could have a full school of thought on the terminology of duties, which also relates to responsibilities, community development and whether this area should be covered in the Constitution. As it is such a wide subject, I do not know if one could incorporate a definition of duties in the Constitution. That is my concern.

Chairman

Mr. O'Halloran has answered that question, in so far as he has said that he will make a further submission. I thank the delegation for contributing to this interesting debate. Mr. O'Halloran's partners were silent, but they are more than welcome. His point about the loss to society of the philosophy of the penny catechism is a very interesting one.

Sitting suspended at 12.45 p.m. and resumed at 2.00 p.m.

Chairman

Representatives of Cunnane, Stratton, Reynolds, town planners, are here to make an oral submission. We have already been provided with a written submission. Mr. John Creane is very welcome. Before we begin, I remind visitors that members of this committee have absolute privilege but this same privilege does not apply to witnesses appearing before the committee. I take this opportunity to remind members returning from lunch to switch off their mobile phones if they have not already done so. I will allow Mr. Creane five or six minutes to elaborate on his submission after which time there will be questions from members. It would be helpful if Mr. Creane could synopsise rather than read over the written submission which we have all studied.

Mr. John Creane

I thank the committee for the opportunity to make this submission. We have been retained by Colm Gaynor, the solicitor who has acted for a number of landowners and people with land interests who would like to see those lands developed but have been presented with problems in doing so. Mr. Gaynor asked us to look at this issue in the context of suggestions in the media that legal measures may be introduced to encourage the development of lands. It is important to inform the committee that there are practical issues to consider in terms of the development of land and that measures exist in legislation to facilitate that development which do not necessarily require amendments to the Constitution.

Public infrastructure is required to facilitate development of land. Much land can only be developed with the provision of temporary infrastructure by the developer or permanent infrastructure by the local authority. Such infrastructure can be services, roads or access. There are many measures in the planning and development system as it stands which could be used more effectively to encourage developers to release lands for development once they have been zoned. For example, section 10(8) of the Planning and Development Act 2000 allows for the dezoning of lands without compensation. Section 15 of the Act obliges the county manager in all local authorities to review the performance of a development plan within two years of its adoption. This provision could be used as a means to advise developers whose lands have not come forward for development whether such lands will be dezoned at a further development plan review. Part VIII of the Planning and Development Regulations 2001 has been used by certain local authorities to facilitate development of lands where they have had problems with third party appeals.

There are practical issues in the zoning and development process which it is important to identify. While there may be an appearance that lands are being withheld from development, it is often the case that local authorities zone lands in excess of what is required under a development plan or by projected population change. In the context of housing, it is not unusual to zone two or two and a half times the volume of land needed to provide for future population growth on the basis that some lands will not be developed. We have made such provision in development plans we have prepared for local authorities. Some lands which are zoned for development may be difficult and expensive to service or may only be capable of development on the provision of appropriate infrastructure. Very often, such provision is outside the control of landowners.

Similarly, in terms of the development process, we had a concern, in that, we have had occasion to act for many people and an application can be in the planning process for an extensive period of time. An application may continue for up to three years before you can get a decision from the planning process. There are opportunities for public consultation and objections at the initial stages through to the appeals stage with An Bord Pleanála and subsequently, in very rare cases, with judicial reviews to the courts. As a result many developers spent years in pre-planning consultation and in the planning process itself. Ultimately they have a planning permission which is not to their liking or changes need to be made to it and consequently they seek further modifying permissions.

If this occurs, one could frequently spend six months in pre-planning and design. If is a very large, complex scheme, especially if it triggers the need for an environmental impact statement. Assuming that the planning on the site is clean and that there are no access, service or infrastructural problems to be addressed, it could take considerable time. Once one enters the planning process, despite the changes in the Act, one could be involved for a lengthy period and might have to wait two months for a decision, which could be a decision asking for further information. One could have to prepare a response to this request for further information which could take another two months to prepare. The council might have to make its decision within two months if an environmental impact statement is required. Even on that basis, it could take at least six months for the local authority to deal with the application. Even within that six months, other scenarios could arise, such as the local authority requiring a material contravention procedure to process the application. This would further extend the timescale.

Deputy Andrews

I welcome the delegation to the committee. My question refers to a point made on page 3 of your submission relating to the amount of land local authorities zone in their draft plans.

Being from Dún Laoghaire-Rathdown, it breaks my heart that the local authority is zoning twice or two and a half times the area of land that is required. Dún Laoghaire-Rathdown and Cork County Councils are the only two authorities which have commenced their draft development plans under the new Act. If it is true that Dún Laoghaire-Rathdown has zoned twice or two and a half times more than is necessary, it undermines the whole process. In a city environment there is a natural conflict between the requirement for development and those who wish to preserve green areas. Perhaps Mr. Creane would comment on that.

Mr. Creane

It is not something which is set down in law; rather it is a rule of thumb. Some local authorities opt for two times, others for two and a half times, the amount required. In general it is a way of ensuring that one has a sufficient volume of land available.

Deputy Andrews

Does this occur mainly in urban areas?

Mr. Creane

Chairman

I thank Mr. Creane for his contribution. We will now suspend the meeting to allow the next group to come before the committee.

Sitting suspended at 2.35 p.m. and resumed at 2.38 p.m.

Chairman

The next item on the agenda is a presentation by Feasta, represented by Ms Emer Ó Siochrú and Mr. John Jopling.

Before we begin I must remind visitors that members of this committee have absolute privilege which does not apply to witnesses appearing before the committee.

Although Feasta has provided a detailed submission, unfortunately due to time constraints, we can only allow you six to eight minutes to make your contribution. I would ask the representatives to synopsise their presentation rather than reading through it, and then we will then ask questions. I remind witnesses that we are a committee on the Constitution with a narrow remit dealing with property rights. Some people wanted us to expand but we are in something of a straitjacket.

Ms Emer Ó Siochrú

I represent Featsa, an Irish word which means the on-going future and comes from the poem Cill Cais: "Cad a dhéanfaimíd feasta gan adhmad, Tá deireadh na coillte ar lár". The poem was written at the time of the Gaelic lords and a change in the culture in Ireland. We feel we are at that point of change again and must make the transition into a world of sustainability. We are looking particularly at the economics of sustainability. We are a not for profit organisation set up about five years ago. Membership is open to anyone. We do not accept the current orthodoxy about the need for growth and how money matters more than anything else.

Our presentation is obviously about private property. However, it is not really about the need to change the title or ownership of property in order to achieve common good or the benefit for future generations. Instead, it is about the need to change the nature of the ownership and title of property. It is also about redefining property ownership from a model of regarding property as a thing to a model of social relations which can be negotiated by different generations to suit the changing circumstances.

In our submission, we have made recommendations about changes to the Constitution and have included changes to words here and there and short inclusions. An alternative, however, would be to put in an entirely new clause. What we would like to see is a clause that includes the following provisions. First, the State shall respect the distinction between natural and man made property. Natural property is that property which is God given. It is not created by man. If one does not believe in God, it pre-exists man. Man has not contributed anything to bringing it into existence. Man made property obviously uses natural property as an input, but man contributes energy, risk and investment in order to make of it his own. That property should be treated differently from property such as land, air, water, genetic codes, electromagnetic waves and so on, which are natural and part of the bounty of the earth. Second, the State shall respect the principle of common share in natural property and in value created by community investment. Common share is the community's share in all natural property. We feel there should be an element of community share in all natural property given by the earth. This is for two reasons. The first is what the representatives of CORI said: that this property is given as a gift to humanity. The other reason is that most of the value of land is created by community deed and investment. For the most part, it is not created by the individual who owns it. That element of the value of the land should be respected in the Constitution. It should be recognised that this property belongs by rights to the community. Third, the State shall respect the principle of sustainability. This extends the concept of the common good into the future to benefit future generations and to recognise humanity as part of the natural world.

We tend to use the words "natural capital" instead of "property" but they are essentially interchangeable in the text. We do not believe that any changes in the Constitution are actually necessary. None of the legislative proposals or new programmes that we suggest requires a change in the Constitution. The common good should be defined broadly, as it was meant to be when the Constitution was written. Unfortunately, a very narrow understanding of the common good has prevailed whereas the rights of the private owner have expanded to include all possible rights pertaining to the land. We think that is unfortunate. We do not think the Constitution, when it was written, intended that. However, it might be useful, although not necessary, to change the Constitution to bring in this understanding of the common good which is broader and recognises community share. It also recognises the common good in terms of future generations, in other words, it deals with sustainability.

It might be useful to cover the issue of housing land. From other submissions and from what I have read in the newspapers, I have found that much of the impetus for changing the Constitution arises from the problems we have with housing affordability and the need to implement good and proper planning. These problems are real and should be addressed. We advocate in our proposal that the way to recognise the common share is through an annual tax, particularly a tax on development land which would be predictable. It would be a small proportion, perhaps 5%, of the increased value of the land due to zoning and it should apply to all zoned land. That could be phased in, but those details could be left to local authorities. We see that tax going to the local authority, hypothecated for development in housing and investment in infrastructure. It would allow the local authorities to have a predictable stream of income which it could invest in sewerage, water and roads and it would bring development land onto the market.

At the moment, the owners of land are in complete control of the housing market because they can release land as it suits them in such a manner that the price of land is kept high. This does not require a conspiracy; it is the natural effect of the market and the nature of land. An annual tax on development land would rebalance that equation in favour of the community without any other regulations or interference in the market - a simple, clean predictable tax would solve all our problems with the cost of land. The tax would be capitalised immediately into the cost of land, in other words, the price of land would drop. The surveyors explained this to the committee in detail earlier. It would also reduce the price of land by bringing more land onto the market.

The tax would make planning far more effective because when land is zoned it will have to be developed within the five year timeframe. At the moment, far more land is zoned than is needed - in some cases, three or four times as much land is zoned as is required. That is partly to create a market, as the councillors would say, and partly to spread the benefit of zoning to as many people as possible. These are laudable sentiments. With a development land tax or a tax on zoning, some of that community benefit would go back to the community so there would be less need to zone widely in order to share benefits.

It is not necessary to change the Constitution to do what we recommend. We are against CPOs, the Kenny report or any element of compulsion except in the case of necessary investment for infrastructure - roads, rail, etc. - and in a few other circumstances which should be outlined in great detail. If a CPO is necessary, the price paid for the land should be the existing zoned value, which would be far closer to the existing use value if we had a development land tax, in other words, it should not be based on some use that land may acquire in the future, and it should not take into account any shadow value or hope value which may have fallen on that land. Only the use for which the land is currently zoned should be taken into consideration.

However, there should be an element of compensation for compulsion. An important right attaching to land is that of possession. CPOs and any mechanisms for compulsory acquisition of land can be an imposition on individual rights. The community's rights can be well taken care of through taxation mechanisms. This system would allow the owner to sell or develop and it would stop speculation. It would be good for developers and for builders because they would not have to hoard land. At present, very little land comes on the market so developers must buy in advance to ensure that land is in place for them to build when they are ready. That would be unnecessary with a development land tax.

Deputy Devins

I must admit to some ignorance - I had not heard of Feasta before. Could Ms Ó Siochrú tell us about the organisation? Is it privately or publicly funded?

Ms Ó Siochrú

Feasta is a charitable organisation which was set up about five years ago. Membership is open to anyone. We are funded by private donations for the most part, although we received a very small grant from the Government - a couple of thousand euro. Our remit is mainly educational and research based. We have done conferences on renewable energy and hope to have one on land and housing in October. We have included insertions, which I hope will be distributed later, to tell the members about that conference. Our interests are money systems, ultimately taxation measures, particularly tax shift - the development of environmental taxes, which are a tax on bads, not goods - and issues of renewable energy. We are neither left wing nor right wing; we are somewhere strange in the middle.

Deputy Devins

The job we have been charged with is to look at the Constitution but this submission implies there is no need for change. Am I correct in that interpretation?

Ms Ó Siochrú

If we look closely at the Constitution, the common good is there, it defines the right to private property. It is a question of political will but misunderstandings have built up over time and it might be useful to insert some changes to the Constitution to clarify matters and to guide legislators.

Deputy Devins

It could be argued that the Constitution recognises personal property over the common good. That is the dilemma we face. To be absolutely clear, should this be dealt with through legislation and not through a constitutional amendment?

Mr. John Jopling

We are suggesting that the job of the Constitution is to spell out the underlying principles on which the Legislature would then be bound to act. Depending on how the Constitution is interpreted, it may or may not spell out those principles clearly. We think it would be helpful to spell out those principles through the amendments we have set out on the sheet we have presented to the committee. These put in slightly different words the amendments that were spelt out by way of amendment of the particular sections. The Constitution should draw the attention of the Legislature and the people to this distinction between natural and man made capital, which is fundamental for social justicein this situation. It would help for it to bringout the principle of the common share in natural capital.

Deputy McCormack

I found this a most interesting and novel approach to the concept of ownership - that there is personal ownership and community ownership of the God given aspects of land. It is an idea we can consider. Amendments were suggested to Articles 40:3 and 45 of the Constitution. This is the first group to put in writing what they should be like so we will be able to look at this when we are deliberating on the presentations. The rest of the submission deals with ways to do things other than amending the Constitution. If the group has any further suggestions relevant to a constitutional amendment, it could brief us again.

In the submission, where planning permission or zoning is granted, the value should be recouped on behalf of the community by an annual value tax on the designated permission. Would that be a reintroduction of rates on houses?

Ms Ó Siochrú

The tax is not on houses, it is on land. Undeveloped land that is zoned and ripe for development which the community needs for housing imposes a cost on the community if, having provided the services such as roads, sewerage and water, the land is not developed. It is a way to recoup the cost the community puts into the infrastructure and part of the value. It is easier, more effective and fairer to take a percentage of the value created in the land rather than increasing development levies having achieved permission.

It is not another form of rates because that tax would stop when the houses are developed. There is, however, a case for a local land tax further along and we have made the case for that. For the purpose of providing affordable land and proper planning, all that is necessary is an annual tax on zoned and ripe development land.

Deputy McCormack

If that is the group's interpretation, that is fine, but I read the situation differently. The value should be recouped on behalf of the community that created it by an annual site value tax on the designated permission. Is that before the houses are built?

Ms Ó Siochrú

Yes.

Deputy McCormack

Then the community loses all rights to get anything back as soon as the houses are built; there is no further contribution to the community once the houses are built.

Ms Ó Siochrú

Deputy O’Sullivan

Would the money then be ringfenced specifically for social good? Would Ms Ó Siochrú see the money being used for particular purposes? The local authority I have just left, for example, does not have any land. It is a city authority circled by developing authorities so it would not gain any benefit from such a tax. Would Ms Ó Siochrú recommend that the money go specifically to the local authority and be ringfenced for particular purposes within that local authority? How would she see the levy being used?

Ms Ó Siochrú

I would see it going to the local authority and contributing towards Part V and towards infrastructural provision. The Deputy made a good point about a local authority in a developed area with very little undeveloped land. That is why we go on to say in our submission that land taxes should ultimately be attached to all land on its appropriate use, as decided democratically by the councillors and the planners. That tax would more or less substitute for the Derelict Sites Act 1990, for instance, and would substitute for rates, which are an unfair tax.

As regards rates tax initiative and investment, somebody who has put in effort and invested in a property pays quite a lot in rates unfortunately, whereas a nearby derelict, poorly developed or neglected property pays very little in rates, or nothing at all. That is not fair. We suggest at the next stage a change to the American system of a dual rate local tax. It is very similar in essence to the development land tax but it would deal with local authorities in urban areas where most of the land is developed. It would consistently apply the principle throughout, which would bring considerable revenue into that local authority.

Deputy O’Sullivan

Leading on from that, I ask whether this tax would substitute for stamp duty and whether it would vary depending on the actual zoning of the land. I presume that the tax stems from what the best and maximum available use of that land would be.

Ms Ó Siochrú

That is the point I am coming to. I just wonder whether legislation alone would be effective, particularly since we now have the Planning and Development Act 2000. If we were talking about this here, two years ago, we might have said, "Let us see how things go with the new Planning and Development Act". The early indications, however, are not very encouraging.

Senator Dardis

First, it is very much to be welcomed that the Office of the Ombudsman contributed to this debate. It would have been quite easy for it not to have contributed. I think it is also good we have somebody with plenty of experience in these issues who can offer an independent view. That is beneficial from our point of view. I should like to develop a little more the point raised by Deputy O'Sullivan. In your submission of 29 May there is a reference, "It seems to us that arising from the provisions of Article 43 and its interpretation by the courts as evidence by local authorities that the public does not enjoy that comfort, and therefore, local authorities may, despite their increased powers under the Planning and Development Act 2000, continue to hesitate pursue planning infringements through the courts for the reasons explained above", which is what you have just developed.

The inference or explicit statement is that their reason for not proceeding is due to the deficiencies in Article 43. In other words, it would appear from what Mr. Whelan contends that the reason they do not proceed is because of Article 43 and the fact that they would be likely to lose - or not succeed - in those circumstances. Those of us who are members of local authorities might suggest it has more to do with inertia within the system, that they do not proceed rather than any inherent deficiency in Article 43 as it stands. I would be interested in Mr. Whelan's observations on that. Are there any examples he is aware of from the cases that come before him, where in his view the development should have stopped and the local authority decided not to act because it did not believe it would succeed - and in any event it did not think it should act? That is the point I am trying to get across. It is what I believe Deputy O'Sullivan was getting at as well.

On the issue of enforcement, it would be the experience of local authorities that there have been cases where prima facie there was a breach but there was no evidence of the council being prepared to proceed in a vigorous way to remedy this. Sometimes that has to do with resources and lack of manpower, etc. In my own local authority, Kildare County Council, for example, where there is a great deal of development ongoing and few staff to deal with enforcement, that would be our experience. I would agree with Mr. Whelan’s point. We have had experience as well where the courts have said they will adjourn in response to the question: “Is this the subject of a planning application, even though it may be two or three years down the line?” Where the answer was, “Yes, it is”, the courts have decided to adjourn the case until the local authority adjudicated on the planning issue. That seems to give rise to some sort of limbo.

I was tempted to suggest that the alternative name for it might become a verb or a noun over time, in the same way Captain Boycott added his name to the English language. The timeframe for what is happening there is incredible.

There is a crisis in planning enforcement within local authorities, based on my own experience of the largest local authority in the State. On receipt of a complaint about, say, a coffee shop becoming a late night take-away overnight, we have to wait for an inspector to go out. We then have to wait for the report to come back. The report then has to go to the law agent and we then have to wait for the law agent to take action. Years can pass in that process. That is my own experience.

We can suggest that the local authority is either unable or unwilling to enforce the law. We discussed earlier whether this is a resources issue, but I wonder whether it is a more deep seated problem. Mr. Whelan suggests that persons should have independent access to the law as of right. Is it not the case under the Planning and Development Act 2000 that one can go straight to the courts with a planning complaint and that there is more direct access to the courts under the planning Acts? Following on from that, are there examples abroad where this right is recognised in more detail than it is here? If my memory is correct, in the United States there appears to be much more direct access by an individual to the law when it comes to planning enforcement. Is Mr. Whelan looking abroad when he makes the suggestion that access to the legal process, as of right, should be available?

Mr. Whelan

To go back to the remarks about Uggool beach, we found that a very frustrating case to deal with and we are not happy with the length of time it is taking to get a resolution. Again, this underlines some of the issues we have spoken about already. We can make a recommendation that something should happen there but the local authority does not have to accept our recommendation. We could make a special report to the Oireachtas if they were to do that but, fundamentally, it would be far more satisfactory if solutions of this type could be found by agreement rather than by the imposition of a position because we are talking about property and I am not sure that moving by diktat, under the current constitutional and legislative regime, is the way to get the best results. To be fair to the local authority, it could have moved earlier under the existing legislation to recoup the right of way but the issue is whether that would have solved the problem. What it is trying to do now is come at the problem in a slower way but in a way, in its view, which will be longer lasting in terms of getting an agreed solution to the problem. If the landowner does not like the solution, he or she may choose not to operate it. That is a problem.

In terms of individuals going to court on planning issues, An Bord Pleanála is the Planning Appeals Board and if an individual wishes to object to a planning development, in the first instance they appeal to the planning authority and if they are not happy with that, they can appeal to An Bord Pleanála. The area where the courts might come in is in relation to a judicial review of a decision by An Bord Pleanála but I believe that is the full range of measures that are available to an individual.

On the point about the position abroad, we have not looked at that very much. We did examine a situation in the United Kingdom where the Countryside and Rights of Way Act 2000 makes provision that will extinguish in the year 2026 all footpaths and bridle ways in existence before 1949 where they are not recorded in a definitive map for public rights of way, but we have not studied that in any detail.

Deputy Devins

I thank the representatives for coming in today. I want to make two comments, the first of which relates to the enforcement by local authorities. I am a member of Sligo County Council. A year and a half ago the council set up a dedicated enforcement unit, as a result of which many of the potential cases were dealt with. Now that the word has got out to the general public that the council is prepared to deal with cases of unauthorised structures by going through the whole rigmarole, right up to court, there has been a decrease in the number of complaints made. The mindset is slowly changing in that regard.

On the issue in question today, the last paragraph on page 1 of the two page presentation suggests that greater balance might be achieved between a person's property rights and the interests of the common good. That neatly encapsulates what the committee is trying to address. Can I take it from the comments made earlier that Mr. Whelan would suggest that the interests of the common good are not sufficiently protected under the Constitution and that he would like to see those strengthened? If that is the case, would he be prepared to put in writing suggestions for proposed changes to the Constitution?

Mr. Whelan

That is a difficult issue for us as we are not constitutional lawyers on this side of the table. The joint committee can take it that we feel there is a deficiency there and this is reflected in some of the general comments I made. There has been a big push during the past couple of years towards development with the Celtic tiger and so on and many local authorities have been stretched for resources, all of which have gone into development and not into enforcement. That is understandable and it is interesting to hear the comments about what has been happening in Sligo. Certainly we would welcome more of that happening.

We deal with individual complaints and I am at pains to emphasise that to the joint committee. In regard to the debate about building things quicker, that we have to be like Madrid and get the metro built in a year and that it should take ten years to have it done here, I can well understand the frustration with all of that. However, the bottom line is that if we are to do things more efficiently and more quickly - and there is a need for that - it is important not to lose sight of the rights of individual people in that process. Their rights still need to be protected. We have to find a way of striking a balance between those who object for the sake of objecting and those who are genuinely and seriously affected by development. There must be a right to be heard and a right for their views to be considered. That is where the common good comes into play.

Senator Tuffy

I thank the delegation from the Office of the Ombudsman for its presentation. I am sorry I was not present for the presentation but I have read a summary. On the issue of whether a person would have legal recourse, is there not an injunction procedure in relation to planning? So far as I know it was provided for in section 27 of the old planning Act but I am not sure what section it is now. If we provide for the right to go to court, that is not necessarily the solution because it involves costs, time and so on and, in fact, it is one of the deterrents. One of the reasons the Office of the Ombudsman is so attractive is that it does not involve those things. If there were to be many court cases on this type of issue it would not necessarily be a good thing. That is one of the reservations I would have with it. As a member of a local council I am aware of a lack of enforcement particularly in relation to developers of housing estates. Even if the council had more powers it would not have the resources if it involved going to court constantly. What would the delegation think of legislation whereby a developer, or other types of people, who got planning permission for one thing but did not comply, would have some restriction imposed on him in respect of future planning permissions? Perhaps that would be one way of helping to deal with the enforcement needs.

Mr. Whelan

I do not disagree with the Senator's comments in respect of individuals going to court. The courts are getting clogged up with many things. We should always avoid having to go to court. I said earlier I did not see this as a complete solution to the problem; it is something that might operate in tandem with the local authority deciding whether to take court action. At least it gives some degree of satisfaction to the individual that they are not just in the hands of the local authority when it comes to it and that they can take an individual decision on it. I take the Senator's point about clogging up the courts.

On the issue of planning permissions, the issue raised by the Senator is provided for in the Planning and Development Act. There is a restriction on future planning permissions if one has not abided by the existing one.

Senator Tuffy

It is a weak provision and could be much stronger. Many developers do not finish housing estates but go off and build several others and, perhaps, years down the line they come back and finish off. They should not get planning permission for the next estate if they have a bad record and have not finished a couple of estates. Perhaps they should be excluded from getting planning permission.

Mr. Whelan

I agree with the Senator that keeping cases out of court is well worth considering. Years ago before the introduction of the bonding system, estates were built, builders fled the scene and the local authority was left holding the baby in terms of finishing footpaths, sewerage systems and so on. At least the bonding system helped to some extent but it still did not get over the problem of enforcing that through the courts. That was obviously the final say.

Chairman

In one sense I find it intriguing but in another sense understandable that the local authorities are reluctant to go before the courts. It is a case of once bitten, twice shy, that they have had unhappy experiences. As a local authority member for 18 years the impression in the court is that the local authority is a big body and has a good deal of money. Whatever about the developer there is much sympathy by the lower court towards the individual who has not complied with the rules and regulations. Even if the local authority succeeds there is the danger that it will be lumbered with the costs, as mentioned. This is an interesting aspect but it is also a worrying feature because local authorities, even though as members we may have our differences, are not always wrong. I commend Mr. Whelan on the excellent work being done by his Office and wish the new Ombudsman, Ms Emily O'Reilly, the very best. I am sure I speak for all members. In many instances, not only in the area of property, the Ombudsman's office has saved many citizens the hassle and trauma of going to court. Overall the office does a wonderful job. The worrying feature is the lack of trust by local authorities that even if they win they still lose because they have to pay the fees. That is a problem.

I acknowledge the sincere view that there is a need for a better balance in the Constitution. We will certainly take that on board during our deliberations. I thank the delegation for coming before the joint committee.

Sitting suspended at 16.16 p.m. and resumed at 16.19 p.m.

Chairman

The next item on the agenda is the presentation by the Mountaineering Council of Ireland represented by Ms Helen Lawless, Mr. Milo Kane, Mr. Frank Nugent and Mr. Seán Quinn, all of whom are welcome. I must remind visitors that members of the committee have absolute privilege, but this same privilege does not apply to witnesses appearing before the committee. I acknowledge you have made a submission to us which we have studied and in view of this, I suggest you outline the salient points following which there will be a questions and answers session.

Ms Helen Lawless

Thank you, Chairman, and I thank the committee for giving us the opportunity to make an oral presentation on the question of access to the countryside and the related issue of private property and the common good. Each of our delegates will speak briefly. I will begin with a brief outline of the Mountaineering Council of Ireland. Frank Nugent will speak about access issues generally, Seán Quinn will speak about the access situation in countries abroad and the constitutional position while Milo Kane will refer to the committee's terms of reference.

The Mountaineering Council of Ireland is the national representative body for the sport of mountaineering. That means we encompass activities as diverse as hill walking in which the majority of our members engage, rock climbing and more leisurely rambling. We have over 8,000 members and are a 32 county body. Approximately 90% of our members live in the Republic of Ireland. We have over 100 affiliated clubs and have clubs in every county in the country. We also have 900 individual members.

Research conducted by the Waterford Institute of Technology in 1997 suggests that our 8,000 members perhaps represent only 5% of the hill walking population in Ireland. We conservatively estimate that there are approximately 100,000 active hill walkers in the country. Bord Fáilte research on the subject indicates that 250,000 visitors to the country each year engage in hiking or hill walking, a figure that has been consistently achieved every year since 1996. Bord Fáilte statistics also show that hill walking is more popular and valuable to the Irish economy than cycling, angling or touring.

Our organisation exists to promote the enjoyment, protection, wise and safe use of the Irish uplands. We define the uplands as constituting that 5% of Ireland that is above 300 metres in elevation. Our main aim with regard to access is that we seek to gain reasonable access to the countryside for responsible users. I ask Mr. Nugent to continue on the general issues.

Mr. Frank Nugent

Access has increasingly become an issue for mountaineers and hill walkers. We recently undertook a membership survey and got over 1,000 respondents. It revealed that 48% of them had experienced specific access difficulties. These mostly occurred in the west and south-west. These problems are not unique to Ireland but they have been addressed in most other developed countries, most recently in Scotland with the Land Reform Act 2002. These countries have formally defined access rights, something citizens and visitors here do not enjoy.

However, it is important to note that mountaineers and walkers have, and continue to enjoy, a lot of access to our uplands. We are seeking to reach a satisfactory access rights agreement for responsible users. We hope that the agreement will cover landowners and the tourism industry in the interests of the common good.

We essentially aspire to two types of access. At lower levels, where farming is in general field based, we seek agreed routes on which responsible walkers may proceed from public roads and car parks to reach traditionally unfenced mountain and moorland areas where they should have the freedom to select routes with varied destinations. We are not looking for something we have not already enjoyed, but it is not legally defined. Mountaineers and walkers have enjoyed great access in the country, but there appears to be an increasing need for a legal definition of the issue. I will ask Mr. Quinn to speak at this point.

Mr. Seán Quinn

Our submission, in particular the additional information we submitted today, deals with the position in Britain and Scotland because we consider these to be the most relevant comparisons to Ireland. We believe that the lack of definition in Ireland places us at a unique disadvantage relative to all other European Union countries. It also disadvantages EU citizens.

The problem is not only related to tourism, although we know that agri-tourism is very important, even if we are not achieving our full potential in this area. Ireland faces serious disadvantages in the present situation. We also have information on other jurisdictions which show how out of step is Ireland. It is making a serious impact on tourism, especially agri-tourism, which the Government has been trying to develop. We believe there is huge potential here, not only with regard to overseas but Irish visitors. Irish walkers and mountaineers are now tending to travel to destinations abroad where their rights are clear. In Ireland there is a lack of definition which is very unsatisfactory. It must be addressed and we welcome this opportunity to present our submission and answer questions.

The relevant law in England is the Countryside Right of Way Act 2000 while the Scottish Bill was passed by a large majority in the Scottish Parliament, with 100 MSPs voting in favour and 19 against. Both jurisdictions were already way ahead of us and we have now fallen further behind. It is, therefore, time to address the matter.

We suggest that Article 40.6 of the Constitution be expanded to cover the rights of reasonable access to Ireland's uplands for responsible users, while the committee may wish to examine the case for strengthening the provisions for delimiting property rights set out in Article 43.1 and 43.2 in the interest of the public good. We are concerned here with the majority of the people, the masses as against the classes, as Gladstone once put it when he supported the masses against the landowners. Both Articles provide scope for amendment.

Mr. Milo Kane

I wish to revert to the task for the committee as it has been outlined to us and to comment on the relevance of our submission in terms of what the committee considers to be its task, especially its concern to analyse and determine whether legislative provision in regard to the matters with which we are dealing has been constrained by the Constitution and, if so, to make recommendations. To date, there has not been to our knowledge an attempt to make legislative provision towards access rights. However, in our view, some legal definition is increasingly required for reasons we have made clear in our submission.

We think that if the committee so feels, the Constitution should be reviewed to allow scope for the drafting of such legislation without it being overshadowed by a perceived constitutional problem or without it being subject to challenge. Our feeling is that there is balance within the present Constitution but there is rather less balance in how the Judiciary has interpreted the Constitution. In general the interpretations that we have seen, perhaps most recently with the Supreme Court decision on Kinsale but also in various other instances, have considerably favoured the propertied side. We are not saying that this necessarily has to be so but it has been hitherto so. If the committee should see fit to recommend a constitutional modification, we would certainly hope to see this.

Mr. Nugent

There was an issue. We worked in tandem with IFA and with other farming bodies in the introduction of the Occupiers' Liability Act 1995. We very much support the idea that farmers are not responsible for people going on their land. We would support that position. In fact, we were quite surprised with some of the findings in some of the courts where judges appear to be unaware of the most recent legislation.

Chairman

In fairness, some of those proceedings may have been initiated before the new Act came into being and obviously legislation is not generally retrospective. I would be interested in your views on this. I would see that the kernel to solving all of this is co-operation, primarily with the IFA. This arose at one of the meetings I had recently with the Minister, Deputy Ó Cuív, on this general issue and on compensation of farmers, the REP scheme and the Beara Way in my constituency in west Cork which is currently closed, etc. There are 12,000 or maybe 14,000 commonage holders in Ireland and unless there is co-operation and consensus between the various groups and even if we change the Constitution, you cannot ram something down their throats. That approach might be the one that should be explored.

Mr. Nugent

We would very much support that whole approach of sitting down with landowners and other economic interests in the uplands and trying to forge practical solutions to these matters. One cannot force a way. We would not be interested in bullying people into anything.

Chairman

Mr. Nugent

We believe that the Constitution as drafted has that latitude, but from what we have seen from High and Supreme Court decisions, it does not appear to be so. They appear to favour property rights highly.

Mr. Quinn

It has not happened so far which means there is a problem in this regard. This is why we believe it would be better to tackle it now. Britain does not have a written constitution. We do and, for better or worse, we must accept that and deal with it. It is better to tackle it now.

Regarding the position abroad and in neighbouring countries, their access has improved over the years whereas ours has deteriorated. We have always been famous for being Ireland of the welcomes. None of us wants to see that becoming Ireland of the unwelcomes. It is not just for visitors from abroad; it is also for our own citizens from the point of view of health and well being. The Minister for Health and Children is trying to promote greater activity for health purposes and has launched a new campaign in this respect. Walking appeals to everyone of all ages and classes in every part of the country. It is not an urban or rural phenomenon. Everyone is beginning to appreciate that they must have proper exercise.

Mr. Nugent

Who would have thought public access to the Old Head of Kinsale would have been denied?

Senator Dardis

Did that more than anything else cause the alarm bells to ring?

Mr. Nugent

It shows what can happen. There is a sign pointing towards the head and people go there every day only to find they cannot gain access to an area where there used to be a lighthouse.

Mr. Quinn

Tourist literature highlights the point. Tourist literature from Scotland states that the country has a long standing tradition of access to open country and that the Scottish Parliament has incorporated this in law giving individuals the right of responsible access to open country. It is the same in England which has the Countryside and Rights of Way Act 2000.

These matters take time and there is a lead-in in Britain because the management of this issue is very important. We know there are problems. In England and Wales this is being tackled methodically and it will be another couple of years before the Act comes into force. There are mapping processes and local fora are being set up. We are falling behind all the time. Northern Ireland will take on board what is happening in other parts of the UK.

This is not just a matter for other parts of these islands. We can provide information from New Zealand, America and the continent if it helps the committee.

Chairman

Thank you. The concept is probably accepted on health grounds. The Irish people are probably seen as not walking enough. Lest the wrong message goes out, from my experience in west Cork 95% of farmers were co-operative and those who were not may have had undue fears. Most small farmers in the Beara Peninsula, Sheep's Head Bay, Mizen Head and west Mayo are unable to derive a full-time living from the land and they depend on subsidies and headage payments. The IFA recognises the importance of tourism in these areas and that this area should be nurtured. If the IFA comes on board it may have to be done region by region. There are open dedicated routes signposted all over the country, which I notice in places like Kerry and Clare, but I am not sure what we can do as a committee. We will look at the submission and deliberate on it. It may be our conclusion in six months that constitutional change is not as appropriate as legislative change. I wish the delegation well in its work and thank it for this submission.

The joint committee adjourned at 4.55 p.m. until 10.30 a.m. on Thursday, 17 July 2003.

JOINT COMMITTEE ON THE CONSTITUTION debate - Wednesday, 16 Jul 2003

Property Rights: Presentations.

Mr. John Dwyer

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Mr. James Muldowney

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Mr. Michael O’Halloran

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Mr. John Creane

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JOINT COMMITTEE ON THE CONSTITUTION debate -
Wednesday, 16 Jul 2003