Irish language proficiency conditions attached to planning approval in Gaeltacht areas are constitutional, but those which discriminate against people without family connections to the areas are not, according to a Law Society report.
Planning authorities and an Bord Pleanála should also "be slow" to impose language conditions uniformly over a large area, the report by the Law Society's Law Reform Committee has said. Application should relate only to "what is necessary" in relation to preserving Irish in an area.
The report's findings, which have been submitted to the Department of the Environment, endorse the policy adopted by Galway County Council in imposing language conditions on housing developments in Gaeltacht areas.
The Society's Law Reform Committee was established in 1997 in order to identify and focus on specific areas of the law in need of update and reform.
The report supports a Bord Pleanála ruling against imposition of language conditions in the Galway Gaeltacht village of Claregalway, given the infrequent use of Irish in the rapidly growing suburb. A board ruling on a scheme in Spiddal, Co Galway, to which linguistic conditions are attached is due to be issued on April 14th. Last week, developers of another housing scheme in Connemara claimed in their appeal that the language conditions were "unworkable, unreasonable and offensive".
The report states that "bloodline" conditions which discriminate between relatives of local residents and non-relatives are in contravention of the Constitution, the European Convention on Human Rights, and EU law. "Local connections" can only be considered as an advantage where people are both locally employed and resident for at least a year, or employed in agriculture, it suggests.
The authors of the report analysed six commonly-used grounds of distinction between "privileged" and "non-privileged" people as applied under section 39(2) of the Planning and Development Act 2000. These six were local residence; local employment; agricultural employment; language use (Irish in Gaeltacht areas); "bloodline", or family relationships with local residents; and previous local residence by a returning emigrant.
The report says that section 39 of the Act should be amended to provide that planning authorities and an Bord Pleanála do not discriminate on any of the grounds prohibited under the Equal Status Acts, 200-2004, or on grounds of "bloodline". Local residency and local employment should never be imposed independently of each other, and the required period of local residency should be one year before making a planning application to demonstrate a commitment to the area.
The authors say that this would serve the interest of maintaining a strong rural population, independent of the "holiday sector". Returned emigrants should only be given special preference in a "very limited way", the report says.
The authors warn that planning authorities and an Bord Pleanála should never have an "absolute rule" or policy in favour of certain types of discriminatory planning conditions.
They explain that the European Convention on Human Rights requires that the personal circumstances of people should be considered when national authorities make decisions that have an impact on people's rights.
The authors say that if their conclusions are applied, certain people who have benefited from a "special status" in the past in relation to building and living in the countryside or villages may no longer be able to do so. They conclude that while the law would stand up to constitutional challenge, the way in which it was being applied could be tested against constitutional principles.
