Housing policy is, as expected, one of the main areas of debate in the current general election campaign. Successive governments have failed to provide a stable supply of housing at an affordable price for many ordinary citizens. Central to any housing policy is the supply of land at a reasonable price and the hoarding and drip-feeding of zoned land into the market has long been identified as a major cause of soaring house prices.
Back in the late 1960s rising house prices caused the then Fianna Fáil Minister for Local Government, Bobby Molloy, to commission a report on ways to tackle the supply of land for development and the subsequent Report on the Price of Building Land (the Kenny Report) was published in 1973. Chaired by High Court judge, Mr Justice John Kenny, it contained a set of radical recommendations which had the potential to transform the way building land was purchased by Irish local authorities forever. However, the recommendations were never implemented.
Along with Mr Justice Kenny, the Committee had two representatives from the Department of Local Government, one from the Taoiseach’s Department, one from the Revenue Commissioners and one from the Valuation Office. The terms of reference specifically asked the Committee to consider possible measures for controlling the price of land required for housing as well as ensuring that all, or a substantial part, of the increase in the value of land would be secured for the benefit of the community. The members were also asked to advise on what changes in the law may be required to give effect to any measure recommended.
When published, the report included a majority and a minority report - the minority report drafted, ironically, by the two civil servants from the Department of Local Government, the commissioning department.
The majority report recommended that local authorities be given the right to acquire undeveloped lands at “existing use value” plus 25 per cent by adopting Designated Area Schemes. This financial deal was deemed to be “a reasonable compromise between the rights of the community and those of the landowners”. The majority report argued that the local community had a legitimate claim to all profit accruing to serviced land. This increase in value was referred to as ‘betterment’.
The minority report recommended that areas required would be “designated” by the local authorities. In a designated area, the local authority would have first option to purchase land put up for sale. A levy of 30 per cent would be charged on all disposals of land in the area. The proceeds of levies would accrue to the local authorities to be used by them to finance capital works.
However, regulating the price of building land was considered by many, including the two minority report members, to be an infringement of private property rights which are protected under the Constitution, notably Article 40.3.2. However, the majority report argue that this right had to be balanced with Article 43.2 which states the State may “delimit by law” the exercising of these rights “with the exigencies of the common good”. Successive governments and attorneys general would appear to have hidden behind a conservative interpretation of these articles and there have been many calls for a referendum to ensure the balance would always be weighted more towards the common good.
By the time the report was published, the Fianna Fáil Government had left office and was replaced by the Fine-Gael Labour Coalition of 1973-77 led by Taoiseach Liam Cosgrave. In January, 1974, the Government announced their acceptance in principle of the concept of the majority report.
The economic recession of the mid-70s caused further consideration of the report to be side-lined and in 1976 the then Minister for Local Government, Jimmy Tully, decided to defer its implementation. Since then, there have been a myriad of reasons why the Kenny Report was not implemented, including powerful vested interests and the well-trotted out threat of a constitutional challenge.
But in recent years the principles of the report have been revisited, most notably in the Ninth Progress Report of the All-Party Oireachtas Committee on the Constitution which concluded that it was most unlikely the recommendations of the majority report were unconstitutional. Today, 47 years later, it would appear the principles of the Kenny Report may still provide a key to solving the country’s ongoing housing crisis.
Tim Ryan is a Public Affairs specialist currently researching a PhD thesis on the 1973 Kenny Report at the School of Social Work and Social Policy, Trinity College Dublin.