I will give the Minister the history of what was on offer. I know that the Leas-Cheann Comhairle — if I may anticipate you, Sir — who is most tolerant in these matters will afford me the opportunity to do this because at all times I will be relevant and to the point in relation to this most serious matter.
The Minister saw fit in his opening remarks to give a cursory review of the history of urbanisation in our society and the applicability and appropriateness of our planning legislation to enable our society to accommodate urbanisation. I want to say — and perhaps this is not the day to be criticising the Minister because he has other things on his mind — that I do not believe this Bill amends the legislation on planning compensation. It alters it in a number of ways — and I am not playing with words — and it introduces some useful bits of consolidation. With regard to the protection of areas of woodland, there are merits in the Bill and with regard to the automatic right of a person to connect to a public sewer running through his land the alterations imposed in this Bill are positive. However, I regret to say that this House could have been afforded a more effective and efficient way of dealing with those positive measures if the Minister had, for example, sought to recommend amendments to the Progressive Democrats' Bill in relation to compensation. The Minister chose not to do this although it is advice he is now offering to the Opposition. Having regard to the way in which the Minister's colleague, the Minister for Justice, has treated such a process in this House, we have to take that with a fair degree of salt.
The Private Members' Bill on the Coolattin Woods which the Labour Party brought in some months ago would have dealt more comprehensively and more adequately with areas of woodland, and likewise that matter could have been dealt with in this Bill. The Fianna Fáil Government and all Governments — and I was a member of one of them — have always seen fit in the political culture of this House to refuse to concede to any Opposition party any real credit in relation to a Private Members' Bill, and hoist by the Minister's own cultural, political petard, we now have to confront him with the culture of this side of the House, that is, opposition, because no other quarter is given.
In his opening remarks the Minister went back to the history of planning legislation in Ireland and referred to the 1934 Act. In fact, and I am not being pedantic about it, one could cite the sanitary Acts of the last part of the last century as effectively being the basis upon which planning legislation was enacted and put together in this country. I do not know whether it is a reflection of the abolition of An Foras Forbartha or whether the new planning research unit have not been properly integrated into the Customs House unit of the Department of the Environment — I know they are still in St. Martin's House and they will always be welcome in my constituency — but if the sum capabilities of the revamped, revised, enlarged and enlightened staff capacity of the Department of the Environment, with this new research facility, are to give, in less than half a dozen paragraphs, a cursory history of planning in this country then the Minister has been badly served by his arbitrary decision to execute An Foras Forbartha. I would offer an alternative history.
When this State got independence in the early twenties approximately 20 per cent to 25 per cent of the population — depending on one's definition of what constituted a town or an urban area — lived in urban areas and the rest in rural areas. By the end of this century, give or take a few percentage points — and nobody can be 100 per cent accurate — that ratio of urban to rural or rural to urban will probably be reversed. In one century and within not more than three generations a once-off, historic, never again to be repeated shift in the occupation of the island of Ireland, from a space planning point of view has to be effected and will be effected. The pattern of settlement that had effectively predominated in varying degrees from Norman times, and certainly from the 16th century onwards, of rural to urban which was comparatively static, and the urban charters of the various towns from the beginning of the Middle Ages was in overall time frame terms, to be telescoped into a very short period of change with enormous dislocation problems and problems of accommodation and acclimatisation.
It is my contention — and I think the Leas-Cheann Comhairle will recall since my election to this House in 1977 and since I was a member with him of Dublin City Council in 1974 — that this generation of Irish people, the entire generation that live in the Republic of Ireland, had a unique opportunity to ensure that the benefits of that once-off unique historic shift from rural to urban would be done in a manner that would give not lip service but real justice and truth to the concept of social justice in relation to how best this could be done so as to ensure that the community were not ripped off in the process of this historic settlement shift. It has been one of the great scandals and failures of the body politic of our society since the early sixties that we have been politically — and I emphasise politically — unable to deal with this problem.
I have to say — and these are considered words — that the Minister's attempt to provide a cosmetic cover of resolution and a legislative proposal that gives the impression that he is dealing with this problem is so weak, so inadequate and so nearly duplicitous that I have outrightly to condemn it. I have twice introduced in this House two Private Members' Bills to try to control the price of urban building land, of which this compensation matter is a first cousin. On that occasion the Minister's party — and I remember the Minister was Minister on one occasion and backbench Member on another — voted against that Bill. He has said: "The net issue is grasping the nettle of community bias". I welcome that phrase in his speech. There perhaps has been some shift in the thinking of the Fianna Fáil Party in this respect, some recognition at the present time.
I want to go back to when the issue was at its worst, because the Minister raised this point himself. In rather scathing terms he referred to how successful our planning legislation had been in marked contrast to "some third world countries". I would put it to the Minister, and indeed to the Department of the Environment and to the body politic of this country of which I am a member, that we have handled with less success our rather insignificant rate of urbanisation than some third world countries have managed to do. There are cities in the third world, one of which I recently visited that went from a population of 400,000 in 1940 to 8.5 million today and the basic planning structure works. The outrageous abuse, in contrast, of the use of section 4 on the west coast of Ireland, in the Counties of Mayo and Galway, make some of third world countries, which are denigrated in the Minister's speech, look like angels of planning propriety in terms of how well they have accommodated the demand for growth. The intellectual insult implicit in the Minister's throwaway remark is extraordinary. That is the first point I want to make.
Let me now look at the history of our various attempts to deal with the problem of compensation, planning gain, community bias and private land speculation in our society since the sixties. It started with the appointment of the late Justice Kenny by a predecessor of Deputy Flynn and now a party colleague of Deputy Keating, Deputy Robert Molloy, to chair a committee to review the question of land and land compensation. That report was put on the desk of the incoming Minister, then Deputy Tully, in the Custom House in March of 1973. This history is perhaps known to this House but it needs to be restated, certainly having regard to the revisionist history that has been purported in the Minister's speech to be a summary of recent planning in this country.
That report contained a majority report and, in the immortal words of Brendan Behan, the committee had a split and there was a minority report. The minority report was signed, among others, by the legal adviser to the Department of Local Government, as it then was. It argued, in essence, that the proposals to curtail the price of non-building land, or agricultural land coming into the building sector for the first time, to agricultural value plus 25 per cent was probably unconstitutional. Because there was a consequent slump — I am quoting now from memory the opinion given to me by my former colleague, Deputy Tully — following the oil crisis of October 1973 in the building area and some builders were selling back to Dublin County Council and Dublin Corporation land at a price less than that at which they had bought it, there was no great urgency to introduce the legislation because the heat had gone out of the market. In addition to that, he said — and I paraphrase — there was a dispute because the advice that was got from the legal adviser in the Department of Local Government, as it then was, concurred with by the Attorney General's Office, was to the effect that any attempt to introduce legislation of this kind would be deemed to be unconstitutional and under the relevant Article of our Constitution, the Government of the day cannot knowingly promote legislation which is officially advised to be unconstitutional. This has been so often repeated that perhaps we could put it to music or by way of a refrain in this House. That was the position throughout the mid-seventies.
When the Labour Party introduced their Private Members' Building Control Bill in 1979-80, various Government speakers were aligned. I think the then Deputy Barrett was the Minister for the Environment of the day. No matter how much they concurred with the sentiments of our proposal, which was essentially to adopt the main principles of the majority Kenny Report with some additions, but in essence that was the road down which we had proposed to travel, we had this repeated refrain from Fianna Fáil speakers of the day that while they had no argument in principle with the proposals and recommendations, it was sadly, tragically and inevitably unconstitutional and, therefore, reluctantly they had to vote against it.
There was not exactly a gallop to support the Bill coming from the Fine Gael Party either, it should be said, because there were some reservations there in relation to the sanctity of the absolute ownership of land and the right of any private landowner to exploit without reservation, or hesitation, or any other impediment, to screw the maximum amount possible from the value of that land. They were not prepared to contemplate the argument that people should be paid the value of what they had rather than the potential value of what they thought they might get if the land was so developed.
That Private Members' Bill was defeated in 1979-80. It was reintroduced in 1982 and a compromise arose at the end of Private Members' Business on Second Stage whereby the building control land committee was established and the man who has today been appointed Minister with responsibility for Industry, Commerce and Communications was the person then charged with the responsibility. I negotiated the compromise with him in relation to that committee. That committee started their work and some of the recommendations are, it is alleged in the Minister's speech, embodied in or incorporated into this legislation.
I was a member of that committee for a short number of months, because by November 1982 there had been another election and I was then in the Department of the Environment. We were waiting for the recommendations of the Building Land Committee to be brought forward. I have no doubt but that there is a conservative consensus in this House and that we will see its effects on Second Stage when Fine Gael will not oppose the Second Reading of this Bill.
People regard land as akin to winning the lottery. If you inherit land, let nobody interfere with your rights to exploit it to its absolute maximum. If you cannot get planning permission, you should be entitled to maximum compensation, no matter how illogical, irrational or exploitative of the rest of the community that assertion is. I suspect it is the peasant in us. I come from peasant stock myself and am proud of it, I do not feel any need to make allowances or apologies to anybody for it, but I recognise it in all of us. I recognise it in myself, in my own people and in the people who have elected us to this House, but equally I recognise that it is that naked hunger for land ownership and its untrammelled exploitation which has improverished the process of urbanisation which uniquely this generation of Irish people have had to undergo in the past 40 to 50 years. As I have said, we are the only generation, of all generations who will ever live, who have had the historic task of urbanising our society. A once-off shift from rural to urban life over the space of 50 years has occurred in our time. We have done this in a way that undoubtedly has impoverished large sections of our society. If this Bill goes through, that impoverishment will remain.
The Building Land Control Committee refused to grasp the nettle of dealing with the question of existing use value. I want to take time to put on record again the difference between hope value and existing use value. On Committee Stage I will go into the most recent exposition of the same argument as that put forward by the Irish Planning Institute. In essence, what is being upheld by this Bill and by previous contributions from the Fianna Fáil and Fine Gael sides is the right in respect uniquely of land ownership and of nothing else in our society that you get in return for the transfer of ownership of land which might be in an area capable of urban development or redevelopment, not its existing use value but what it might be worth if it happened to be sold to a local authority. It is extraordinary that people who espouse the virtues of the market and believe that the State should in no way interfere with the transactions of an economy uphold this contradiction and distortion of things that they would otherwise hold to be true and self-evident. It is a bit like saying to somebody: I am selling you a motor car, a 29-year-old battered Volkswagen, the existing value of which is in the region of £300 to £400, but when you look at it it is not really a 29-year-old battered Volkswagen but a pristine new Volkswagen Passat the real or hope value of which is approximately £18,000 to £20,000.
A coal yard owned by Dohertys, which was a coal yard for generations and is within visible distance of the Minister's Office in the Custom House, was sold as an office block to Dublin Corporation under a Compulsory Purchase Order sanctioned by one of the Minister's predecessors. There was no office block on the site and there never was an office block on it. However, it was potentially capable of having an office block built on it because the area was zoned for general business purposes but the market which your party espouse and Fine Gael embrace had in their wisdom decided that coalyards do not make good offices and, therefore, never put an office block on the site. The going rate for coalyards with their sophisticated infrastructure of yards and walls and drains was in the region of £4,000 to £5,000 an acre. Because the local authority — of which the Leas-Cheann Comhairle and I were members at the time — sought to acquire the site compulsorily and because the 1919 Valuation and Compensation Act which the Minister is purporting to amend was applied by the arbitrator the local authority did not buy a coalyard but the site of an office block that the market would never build in that location. Back in the early seventies the local authority on behalf of the taxpayer paid something of the order of £100,000 per acre for that property. It is that historic rip-off, that internal reverse wealth tax that has been going on since the accelerated process of urbanisation took off in the early fifties and mid-sixties. The Minister is attempting to address that political scandal which, frankly, the Labour Party had failed to do because we do not command a majority in this House. While we do not command a voting majority we will not allow the Minister or his colleagues in Fine Gael to pretend or purport that he is dealing with the problem, because he is not. There is no suggestion that the Minister is interfering with the 1919 Valuation Act or attempting to replace existing use value with potential or hope value or that he is even going to go back historically, irrespective of the nature of ownership. The Minister has not yet clarified the position and on Committee Stage he will have to clarify the doubts and ambiguity that surround the commencement date and its effectiveness in relation to ownership.
Leaving that point aside, the core point that is central to the argument of planning development with scarce capital resources and which has beset this generation since the early sixties is not being addressed. It was identified by the Kenny report and the minority report said it would be unconstitutional to address it. It was identified by the two Labour Party Private Member planning Bills that were rejected democratically by the majority in this House. It was discussed ad nauseam by the Building Land Control Committee and the Deputy whose resignation as Minister for Finance was announced today and the Deputy who succeeds him were both members of that committee who suggested there should be no interference with the market mechanism and that a massive investment in infrastructural services was necessary. I am paraphrasing from memory but the Minister will concede that my memory in these matters is not that defective — their argument was to flood the market with serviced available land so as to equalise the price and reduce the effective price of land. By making so much serviced land available, real market competition could then prevail.
That view is marvellous when you happen to be in Opposition, as both those gentlemen were at the time, but the Minister has responsibility for saying no to hundreds of schemes for extra roads, water and sewerage systems because he simply does not have the capital resources available to flood the market with capital investment to give an equal playing field to every little bit of a half acre in the country so that you could have equal competition in market theory, applying to the acquisition of land. It is manifest nonsense to suggest that we should invest equally in land right across the country, certainly in the large urban areas where growth is anticipated, so as to reduce the scarcity factor that prevails between land which is adjacent to a public road or a sewer built by the taxpayer as against land which is not so fortuitously located. That is nonsense in the context of the unique historic opportunity which this generation has in trying to make a transition from a rural settlement pattern to an urban-dominated settlement pattern.
I wish the Minister for the Environment every success in his new appointment and in dealing with the gremlins in the Department of Finance. The very fact that the Minister has been given this additional task is a recognition by the Government of the need to co-ordinate and provide for proper planning. The proposition that market theory and free competition could apply to land economics by simply servicing every half acre in the country with a decent sewerage system, telephone system and road system is manifest economic nonsense. Consequently the only way we can deal with this problem is by introducing some kind of State regulatory system which will control the arbitrary price of land and bring it into conformity with the rule applying in the rest of the market — you pay for what you get, which is its existing use value.
This argument, which I am summarising in deference to the House, has been expounded over many hours in the past by various speakers. I have been one of the main contributors to it. Nobody has ever said to me that they disagree with what I am saying. They always say that even though they might agree, what I am proposing is unconstitutional and, therefore, they cannot endorse it or vote for it. The record will show that. There is a reference to constitutionality in the Minister's speech. The very eminent and intelligent legal adviser in the Custom House, who is widely respected by everybody and is very much his own man, has consistently held the view that these proposals would be unconsitutional. That is his professional view. There is a way of testing that.
I know there are restrictions upon the Government of the day in that they cannot knowingly promote legislation which they believe to be unconstitutional. In this instance there is a genuine intellectual and legalistic doubt. As junior Minister in the Department of the Environment I was charged with responsibility for introducing legislation to give voting rights on a reciprocal basis to UK citizens resident in the Republic of Ireland. Our legal advice was that there might be a constitutional difficulty. In response to questions from the then Opposition we said that this argument had been made known to us. We agreed that there was a question as to whether the procedure was correct but pointed out that there was also a process by which the question could be definitively resolved. In that case the President, having consulted with the Council of State, decided to refer that legislation to the Supreme Court within 60 days. The Supreme Court gave their view that it was not constitutional. Subsequently in conjunction with the elections for the European Parliament in 1985 we had a referendum which enabled the State to introduce legislation giving UK citizens the right to vote in Dáil elections. I am glad to say there are about 750 of them in my constitutency and they were reminded of that facility.
The point I am making is that although there may be a view that a particular measure could be unconstitutional, it has not always stopped the Government of the day, including Fianna Fáil Governments, from introducing legislation about which there was a doubt because at the end of the day the Supreme Court is the final arbiter. They have never been formally asked to adjudicate on the fundamental challenge between existing use value and potential value or, to use a phrase in the Minister's speech, the community bias. The Supreme Court have never been asked to strike the balance between community bias and legitimate private property ownership rights.
The Minister, in referring to protecting the rights of landowners, enunciated three principles which he stated were common ground between most of the major political parties and the Irish public. I do not know of any political party, major or minor, who want to challenge the rights of private property. There is a suggestion in the speech that the major political parties might be agreed, but the inference is that the minor political parties are not. There is a balance between community bias and the right to private property. The final arbiter as to where that balance lies is the Supreme Court but they have not been definitively asked to adjudicate so as to establish beyond all doubt where that line lies.
In August 1986 a detailed discussion on the Constitution took place at the Patrick McGill summer school. RTE produced a programme specifically on the Constitution to mark its 50th anniversary and they also produced a news item on the summer school. They carried interviews with two respected members of the Supreme Court, Mr. Justice McCarthy and Mr. Justice Walsh, people whose jurisprudence, legal independence and general experience of the socio-political process would not be disputed by anybody. These are men who would not be seen as having any great political axe to grind. In public discussion in Glenties and on the television programmes, as well as in private discussion in that marvellous hotel in Glenties, which anticipated the liberalisation of the licensing laws, they said that if the right Bill was sent to the Supreme Court they might get a chance to give a definitive ruling, but that such an opportunity had never been put before the Supreme Court. Clear signals were given to me — and they are on the public records of the airwaves of RTE — that the Supreme Court recognises that there is in our Constitution an obligation to recognise, in the formal phrase used in the Constitution, "the exigencies of the common good" or in the phrase put forward there today by the Minister "the community bias".
I am summarising something that was more elaborate and complex but the reason I make the point is that the Minister has chosen to bring forward legislation which is self-spancelled in respect of the question of compensation. That self-spancelling is an imposition which does not warrant being imposed because the Supreme Court clearly indicated that they are open to making a definitive interpretation.
