`The difficulty with the section now under discussion is that it attempts to transfer the cost of solving one of society's problems on to a particular group."
This was the main reason the Supreme Court gave two years ago for holding that it is unconstitutional to require employers to bear all the cost of special treatment or facilities for disabled workers.
If this is really a general principle it might be the most promising argument that lawyers acting for developers could put forward in a constitutional challenge to the social housing provisions of the new planning Bill.
The general constitutional principles in the area are reasonably clear. Private property is doubly protected, as the specific property a person does own and as the institution of property generally.
The main basis for challenging the new legislation would be Article 40.3.2, under which the State guarantees to protect property rights from unjust attack. To decide what is an "unjust attack" one has to examine the detailed provisions of the legislation and its general nature.
Article 43 is relevant since it provides that the exercise of private property rights "ought, in civil society, to be regulated by the principles of social justice" and that the State "may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good".
The requirements of both "social justice" and "the common good" are primarily a matter for the Oireachtas, and the courts will be slow to interfere with its decisions. There is no automatic requirement that property-owners be compensated in all cases, or that compensation should represent market value. However, in none of the cases where the claims to compensation have been rejected has the degree of interference been as substantial as that envisaged in the Bill.
Almost all those who have succeeded in challenging legislation as a violation of property rights have been able to show some arbitrary, irrational or disproportionate element in it. Examples include a valuation of land which was a century out of date (in the Farmers' Rates case) or the automatic loss of employment and pension for a comparatively minor offence (the Cox case).
Even the Blake case, which held the Rent Restrictions Acts invalid, fits into this framework. A small group of landlords were singled out, on arbitrary basis, without any assessment of the means either of the landlord or of the tenant, and without the possibility of review of the rents. This satisfied the Supreme Court that there was an unjust attack on property rights.
Such cases also illustrate the doctrine of proportionality. Legislation must have a legitimate aim, must be rationally connected with that aim, must impair rights as little as possible and demonstrate proportionality between the restriction on rights and the social benefit.
The social housing proposals contained in the Bill seem to pass these tests. The aim of the legislation - the provision of affordable and socially mixed housing - is legitimate and important. The means chosen do not appear to constitute an obvious "unjust attack" on property rights.
It is important to remember that the Bill would not impose an automatic requirement that 20 per cent of every site be provided for affordable housing, at existing use value. The relevant proportion has to be determined, in advance, by the housing authority, based on its assessment of a need for affordable and social housing. The fact that the proportion cannot exceed 20 per cent seems to enhance the element of proportionality.
Perhaps more importantly, the provision is flexible and must be tailored to the circumstances of each area. In this respect, the presumption of constitutionality - that the legislation will not be operated in an arbitrary or unjust manner - may be significant.
The Bill also proposes exclusions, as for sites under half an acre, or qualifications, as in the case where land has been purchased for more than its existing use value, before the publication of the Bill. The latter provision might be attacked as unfair discrimination; however, it seems likely that the exception would be upheld as a reasonable attempt to minimise the impact on existing property rights.
Is the acquisition of land by a housing authority the "least restrictive means" of achieving the Bill's aims?
It has been suggested, for example, that these aims could be achieved by imposing relevant conditions on planning permissions granted. However, in the context of this type of legislation, the courts will probably accept that it is reasonable for the Oireachtas to conclude that what is proposed in the Bill is necessary, without requiring experiment with alternatives.
THE fundamental challenge to the Bill, however, may be that it is not consistent with the principles of social justice. If failing to compensate employers for providing for disabled workers is unconstitutional, is acquiring property from developers, below market value, for cheap housing also prohibited?
Is it transferring "the cost of solving one of society's problems on to a particular group"?
In the light of the Employment Equality Bill decision, one might reflect that the Supreme Court in the Blake case emphasised that the Rent Restrictions Acts limited "the property rights of one group of citizens for the benefit of another". In the Employment Equality Bill decision the Supreme Court thought that, unless such legislation was properly balanced, it was not in accordance with the principles of social justice.
What is striking about that case is that the Bill contained a wide exemption for employers, in cases where compliance would cause "undue hardship", but that the court found the Bill to be repugnant to the Constitution all the same.
Perhaps the planning Bill falls on the other side of a line drawn by the Supreme Court in that case. It emphasised that it is consistent with the principles of social justice to require that an employer protect the health and safety of workers and to pay for polluting the environment.
These are part of the "industrialist's costs of production" and of the duty not to profit while society bears the cost. In particular, the Supreme Court held that it is constitutional to require, through the planning process, that public buildings be accessible to the disabled.
What are a "builder's costs of development" in this sense? It is surely relevant that the constitutionality of planning control is not seriously in doubt and that those who obtain planning permission receive a very valuable benefit. Indeed, the significant restrictions on the right to compensation for refusal of planning permission, introduced in 1990, have not, as yet, been challenged on constitutional grounds.
The provision of affordable housing would seem to be as least as integral an element of proper planning and development as the accessibility of buildings to the disabled.
Just as the Supreme Court was willing to put an employer's activities into a social, economic and environmental context to determine what is a constitutional balance between private profit and social responsibility, we must hope that it will take the same approach to the proposals contained in the planning Bill.
John O'Dowd lectures in constitutional law at UCD