Re Planning and Development Bill 1999

• Jurisdiction: Ireland
• Judge: Keane C.J
• Judgment Date: 28 August 2000
• Neutral Citation: [2000] IESC 20
• Date: 28 August 2000
• Court: Supreme Court
• Docket Number: [S.C.

ART 26 OF THE CONSTITUTION & PART V OF THE PLANNING & DEVELOPMENT BILL 1999, IN RE

IN THE MATTER OF ARTICLE 26 OF THE CONSTITUTION

AND

IN THE MATTER OF PART V OF THE PLANNING AND DEVELOPMENT BILL1999

[2000] IESC 20

184/2000

THE SUPREME COURT

Synopsis:

Constitutional Law

Article 26 reference; constitutionality of Part V of Planning and Development Bill, 1999; property rights; Part V makes provision for planning permission being granted upon the condition that a landowner would cede up to 20% of the land for "affordable housing"; price to be paid for such land is to be calculated by reference to its existing use value or the price actually paid for the land whichever is the greater; whether Part V constitutes an unjust attack on property rights; whether a person who is compulsorily deprived of his or her property in the interests of the common good should normally be fully compensated at a level equivalent to at least the market value of the acquired property; whether there are special considerations applicable in the case of restrictions on the use of land imposed under planning legislation; whether the provisions of Part V are rationally connected to an objective of sufficient importance to warrant interference with a constitutionally protected right; whether the provisions impair those rights as little as possible and their effects on such rights are proportionate to the objectives sought to be attained; whether the scheme is arbitrary, unfair or based on irrational considerations; whether Part V is repugnant to Article 40 of the Constitution; whether the classifications contained in Part V were made by the Oireachtas for a legitimate legislative purpose, are relevant to that purpose and treat each class fairly; whether the provisions in the Bill left a huge area of discretion to the planning authority which violated the provisions of Article 15:2:1 of the Constitution; Articles 40:1, 40:3:2 and 43 of the Constitution; Article 26:2:1 of the Constitution; Part V, Planning and Development Bill, 1999.

Held: None of the provisions of Part V of the Bill are repugnant to the Constitution.

Art 26 of the Constitution &Part V of Planning and Development Bill, 1999, In re

Supreme Court: Keane C.J., Murphy J., Murray J., McGuinness J., Geoghegan J. - 28/08/2000 - [2000] 2 IR 321 - [2001] 1 ILRM 81

Part V of the Planning and Development Bill, 1999 had been referred to the Supreme Court for consideration. The issue was whether Part V of the Bill, which provided for 20 per cent of new developments to be sold to local authorities for "affordable housing" was constitutional. The Chief Justice, delivering judgment, held that although the proposed legislation in conferring benefits on a category of persons, whom the Oireachtas had decided were in need of assistance, could be said to constitute unequal treatment, the Oireachtas was not precluded from passing such legislation. None of the provisions in question could be said to infringe the Constitution.

Citations:

PLANNING & DEVELOPMENT BILL 1999 PART V

CONSTITUTION ART 26.2.1

CONSTITUTION ART 26

PLANNING & DEVELOPMENT BILL 1999 S94

PLANNING & DEVELOPMENT BILL 1999 S12

PLANNING & DEVELOPMENT BILL 1999 S93(1)

PLANNING & DEVELOPMENT BILL 1999 S94(3)

PLANNING & DEVELOPMENT BILL 1999 S94(3)(b)

PLANNING & DEVELOPMENT BILL 1999 S94(3)(c)

PLANNING & DEVELOPMENT BILL 1999 S94(3)(d)

PLANNING & DEVELOPMENT BILL 1999 S94(5)(a)

PLANNING & DEVELOPMENT BILL 1999 S95

PLANNING & DEVELOPMENT BILL 1999 S96

PLANNING & DEVELOPMENT BILL 1999 S34

CAPITAL ACQUISITIONS TAX ACT 1976 S15

CAPITAL ACQUISITIONS TAX ACT 1976 S21

HOUSING ACTS 1966 – 1998

ACQUISITION OF LAND (ASSESSMENT OF COMPENSATION) ACT 1919

HOUSING (MISCELLANEOUS PROVISIONS) ACT 1992 S6

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 PART IV

PLANNING & DEVELOPMENT BILL 1999 S97

PLANNING & DEVELOPMENT BILL 1999 S98

PLANNING & DEVELOPMENT BILL 1999 S99

PLANNING & DEVELOPMENT BILL 1999 S100

PLANNING & DEVELOPMENT BILL 1999 S94(5)

PLANNING & DEVELOPMENT BILL 1999 S100(2)

PLANNING & DEVELOPMENT BILL 1999 S100(1)

PLANNING & DEVELOPMENT BILL 1999 S101

CONSTITUTION ART 40.3.2

CONSTITUTION ART 43

CONSTITUTION ART 40.1

CONSTITUTION ART 15.2.1

PLANNING & DEVELOPMENT BILL 1999 S100(1)(a)

CONSTITUTION ART 15.2

DREHER V IRISH LAND COMMISSION 1984 ILRM 904

BLAKE V AG 1982 IR 117 1981 ILRM 34

ART 26 OF THE CONSTITUTION & EMPLOYMENT EQUALITY BILL 1996, IN RE 1997 2 IR 321

CONSTITUTION ART 43

BRENNAN V AG 1984 ILRM 355

O'CALLAGHAN V COMMISSIONERS OF PUBLIC WORKS 1985 ILRM 364

COX V IRELAND 1992 2 IR 503

ART 26 OF THE CONSTITUTION & MATRIMONIAL HOMES BILL 1993, IN RE 1994 1 IR 305

DALY V REVENUE COMMISSIONERS 1995 3 IR 1

QUINNS SUPERMARKET LTD V AG 1972 IR 1

MCKENNA V AN TAOISEACH (NO 2) 1995 2 IR 10

HOWARD V COMMISSIONER OF PUBLIC WORKS 1994 1 IR 101

PLANNING & DEVELOPMENT BILL 1999 S94(5)(a)(vi)

PLANNING & DEVELOPMENT BILL 1999 S93(3)

CONSTITUTION ART 43.2.1

CONSTITUTION ART 40.3.2

MURTAGH PROPERTIES V CLEARY 1972 IR 330

NOVA MEDIA SERVICES V MIN FOR POSTS & TELEGRAPHS 1984 ILRM 161

AG V PAPERLINK LTD 1984 ILRM 373

CONSTITUTION ART 45

CONSTITUTION ART 45.2.ii

CITYVIEW PRESS LTD V COMHAIRLE OILIUNA 1980 IR 381

CONSTITUTION ART 15.1

LAURENTIU V MIN FOR JUSTICE 2000 1 ILRM 1

ART 26 OF THE CONSTITUTION & OFFENCES AGAINST THE STATE (AMDT) BILL 1940, IN RE 1940 IR 470

MCDONALD V BORD NA GCON (NO 2) 1965 IR 217

EAST DONEGAL CO-OPERATIVE LTD V AG 1970 IR 317

CONSTITUTION ART 40.3

CONSTITUTION ART 40.2

BUCKLEY V AG 1950 IR 67

AG V SOUTHERN INDUSTRIAL TRUST 1960 94 ILRT 161

CENTRAL DUBLIN DEVELOPMENT ASSOCIATION V AG 1975 109 ILTR 69

HEANEY V IRELAND 1994 3 IR 593

SUNDAY TIMES V UNITED KINGDOM (UK) 1979 EHRR 245

CHALK V R 1990 3 SCR 1303

IARNROD EIREANN V IRELAND 1995 2 ILRM 161

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963

TOWN & REGIONAL PLANNING ACT 1934

PINE VALLEY DEVELOPMENTS V MIN FOR ENVIRONMENT & AG 1987 IR 23

UNITED STATES (UK) V FULLER 409 US 488

JAMES V UNITED KINGDOM (UK) 1986 8 EHRR 123

RYAN V AG 1965 IR 283

PLANNING & DEVELOPMENT BILL 1999 S93(3)(b)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 1

1 JUDGMENT of the Court delivered on the 28th day of August 2000 by Keane C.J. [NEM diss]

2 This is the decision of the Supreme Court on the reference to it by the President of Part V of the Planning and Development Bill 1999 (hereafter "the Bill") pronounced pursuant to Article 26, s. 2, sub-s. 1 of the Constitution.

The Reference

3 By order given under her hand and seal on the 30th June 2000 President Mary McAleese, after consultation with the Council of State, referred, in pursuance of the provisions of Article 26 of the Constitution, Part V of the Bill to the Supreme Court for a decision on the question as to whether the said PartV or any provision or provisions thereof is or are repugnant to the Constitution or to any provision thereof.

Proceedings on the reference

4 Counsel were assigned by the court to present arguments on the question referred to the court by the President. Prior to the oral hearing, counsel assigned by the court presented written submissions to the court, including submissions that certain provisions of Part V of the Bill were repugnant to the Constitution. Submissions in writing by and on behalf of the Attorney General were presented to the court, including submissions that none of the provisions of Part V were repugnant to theConstitution.

5 The oral hearing then took place before the court on the 24th and 25th July. During the course of the hearing, the court heard oral submissions by counsel assigned by the court and by the Attorney General and counsel appearing with him.

The scheme of Part V of the Bill

6 Before the detailed provisions of Part V are referred to, it might be helpful to summarise what appear to be the main features of the statutory scheme which it purports to establish.

7 It is clear that the purpose of the statutory scheme is to facilitate the purchase of houses by people who would otherwise not be in a position to buy houses and to ensure, so far as possible, that housing developments of this nature are not isolated from the generalcommunity.

8 This is sought to be achieved through the planning mechanism. Each planning authority is to include in its development plan a "housing strategy". It is envisaged that this will provide for the designation within the area of a planning authority of a specified percentage of the lands zoned for residential use for the provision of what is called "affordable housing"and also for the provision of housing for persons coming within certain defined categories, such as, for example, the homeless, travellers and people living in unfit or overcrowded accommodation.

9 Where the owner of land zoned for residential uses, or a mixture of residential and other uses, applies for permission for a housing development on the land, the planning authority, or An BordPleanála, as a condition of granting the permission may require him to enter into an agreement under which he either cedes up to 20% of the land comprising the development for such purposes or provides serviced sites or houses actually built for such purposes.

10 The price for such land to be paid by the planning authority is to be calculated by reference to its existing use value, i.e. on the assumption that no development other than exempted development would be allowed on the land. In the case of land purchased before the publication of the Bill, the landowner will be entitled to be paid the sum he actually paid for the land, if it is higher than the existing use value. There are also provisions for the payment of interest. In the case of land acquired by inheritance or gift before the publication of the Bill, he will be entitled to its value as of the date of the death or the gift, if that is higher than the existing use value.

11 Developments consisting of the provision of four or fewer houses or for housing...