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,——