THE SUPREME COURT

KEANE C.J.
MURPHY J.
MURRAY J.
McGUINNESS J.
GEOGHEGAN J.
184/2000

IN THE MATTER OF ARTICLE 26 OF THE CONSTITUTION
AND IN THE MATTER OF PART V OF THE PLANNING AND
DEVELOPMENT BILL 1999

JUDGMENT of the Court delivered on the 28th day of August 2000 by Keane C.J.

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

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 Part [*2] V or any provision or provisions thereof is or are repugnant to the Constitution or to any provision thereof.

Proceedings on the reference

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 the Constitution.

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

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. [*3]

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 general community.

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.

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 Bord Pleanála, 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. [*4]

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.

Developments consisting of the provision of four or fewer houses or for housing on land of 0.2 hectares or less are not affected by these provisions. There are also provisions enabling the planning authority to “claw back” a percentage of the profits made by persons to whom such housing is allocated in the event of a resale.

Part V of the Bill

The long title of the Bill describes it as 
“An Act to revise and consolidate the law relating to planning and development by repealing and re‑enacting with amendments the Local Government (Planning and Development) Acts, 1963 to [*5] 1999; to provide, in the interests of the common good, for proper planning and sustainable development including the provision of housing; to provide for the licensing of events and control of funfairs; to amend the Environmental Protection Agency Act, 1992, the Roads Act, 1993, the Waste Management Act, 1996 and certain other enactments; and to provide for matters connected therewith.”

Part V of the Bill is headed
“Housing Supply”
and contains nine sections, ss. 93 to 101 inclusive. Section 93 contains certain definitions of terms used elsewhere in Part V.

Section 94 of the Bill deals with what are described in Part V as “Housing Strategies”. It requires every planning authority to include in the development plan it is required to make under s. 12 of the Act 
“a strategy for the purpose of ensuring that the proper planning and sustainable development of the area of the development plan provides for the housing of the existing and future population of the area in the manner set out in the strategy.”
 
[*6] Subject to certain qualifications, any development plan made by a planning authority is to include a “housing strategy”.

	A housing strategy must take into account the existing and likely future need for housing of the following categories of person (hereafter “the special categories”):
(a)	the homeless;
(b)	travellers;
(c)	those living in accommodation that is unfit for human habitation or materially unsuitable for their adequate housing;
(d)	those living in overcrowded accommodation;
(e)	those sharing accommodation who, in the opinion of the relevant housing authority, reasonably require separate accommodation;
(f)	young persons needing institutional care or family accommodation;
(g)	those in need of accommodation for medical or compassionate reasons;
(h)	the elderly;
(i)	the disabled or handicapped, and
(j)	those, who in the opinion of the housing authority, are not reasonably able to meet the cost of the accommodation which they are occupying or to obtain suitable alternative accommodation.

[*7] In making any assessment for the purpose of these provisions, the relevant housing authority must have regard to such directions as may be given from time to time by the Minister of the Environment.

The housing strategy must also take into account the existing and likely future need for what is described as “affordable housing”. That is defined by s. 93 (1) as houses or land made available for “eligible persons”. They, in turn, are defined as follows: 
“Subject to subsection (3) and to the regulations, if any, made by the Minister (for the Environment) under section 100 (1) (b), a person who is in need of accommodation and whose income would not be adequate to meet the payments on a mortgage for the purchase of a house to meet his or her accommodation needs because the payments calculated over the course of a year would exceed 35 per cent of that person’s annual income net of income tax and pay related social insurance.”

Section 94(3) provides that the housing strategy must also take into account

“(b)	the need to ensure that housing is available for persons who have different levels of income; [*8]

    (c)	the need to ensure that a mixture of house types and sizes is developed to reasonably match the requirements of the different categories of households, as may be determined by the planning authority, and including the special requirements of elderly persons and persons with disabilities, and

(d)	the need to counteract undue segregation in housing between persons of different social backgrounds.”

A housing strategy must include an estimate of the amount of housing for the persons in the special categories and affordable housing required in the area of the development plan during the period of the development plan. The estimate may state different requirements for different areas within the area of the development plan. The planning authority may exclude eligible persons who have previously owned a house.

The housing strategy must provide that as a general policy a specified percentage, not being more than 20% of the land zoned for residential use, or for a mixture of residential and other uses, shall be reserved for the provision of housing for the special categories or for affordable housing. However, this is not to prevent any person (including a local authority) from using more than [*9] 20% of such land for residential use, or for a mixture of residential and other uses, for the provision of housing for such purposes.

In making the estimate of the amount required for affordable housing, the planning authority must have regard to the following matters set out in s. 94 (5)(a)

“(i)	the supply of and demand for houses generally, or houses of a particular class or classes, in the whole or part of the area of the development plan;

(ii)	the price of houses generally, or houses of a particular class or classes, in the whole or part of the area of the development plan;

(iii)	the income of persons generally or of a particular class or classes of person who require houses in the area of the development plan;

(iv)	the rates of interest on mortgages for house purchase;

(v)	the relationship between the price of housing under subparagraph (ii), incomes under subparagraph (iii) and rates of interest under subparagraph (iv) for the purpose of establishing the affordability of houses in the area of the development plan; [*10]

 (vi)	such other matters as the planning authority considers appropriate or as may be prescribed for the purposes of this subsection.”

Section 95 contains provisions requiring the planning authority to ensure that sufficient suitable land is zoned for residential use, or for a mixture of residential and other uses, to meet the requirements of the housing strategy, and to ensure that a scarcity of such land does not occur at any time during the period of the development plan. It also provides that, in order to counteract what is described as “undue segregation in housing between persons of different social backgrounds”, the planning authority may indicate in respect of any particular area that is zoned for residential use, or a mixture of residential and other uses, that there is no requirement for housing for the special categories or for affordable housing or that a lower percentage than that specified in the housing strategy may be required instead.

Section 96 provides that, where a development plan objective requires that a specified percentage of any land zoned solely for residential use, or for a mixture of residential and other uses, is to be made available for housing for the special categories or for affordable housing, the remaining provisions of the section are to apply to an application for permission for the development of [*11] houses, or where an application relates to a mixture of development, that part of the application which relates to the development of houses. This is to be in addition to the provisions of s. 34 of the Bill which sets out the powers and duties of the planning authority in relation to the granting or refusal of permission for the development of land and the conditions which may be attached to such permissions. Since the submissions of counsel assigned by the court as to the possible invalidity of Part V of the Bill were principally, although not exclusively, related to this section, it is set out in full in the Appendix to this judgment.

The effect of s. 96 can be summarised as follows. Where a person applies for permission for the development of houses or a mixture of developments, including housing, on land which is zoned for residential use, or a mixture of residential and other uses, and the planning authority have included an objective in the development plan requiring a specified percentage of it to be made available for housing for the specified categories or affordable housing, the planning authority, or An Bord Pleanála, may require as a condition of a grant of permission that the applicant enter into an agreement of a specified nature with the planning authority. [*12]
 
	The agreement in question may take one of three forms. First, it may provide for the transfer to the planning authority of the ownership of the land required by the agreement to be reserved for the provision of housing for the specified categories or affordable housing. Secondly, it may provide for the building of a specified number of houses of a particular description and their transfer to the planning authority or persons nominated by the planning authority at a price to be determined in accordance with the provisions of the section. Thirdly, it may provide for the transfer of a specified number of fully or partially serviced sites to the planning authority, or persons nominated by the planning authority, at a price to be determined in accordance with the provisions of the agreement.

The applicant cannot be required to enter into an agreement to transfer houses or sites. He may opt instead to transfer land and, it is only where he decides not to transfer land, that he can be required to enter into an agreement to transfer houses or sites.

The price of houses and sites to be transferred under the agreement is to be determined on the basis of the site cost of the houses being calculated as if it was equal to the cost of land transferred to the authority under the first [*13] procedure and the building and attributable development costs, as agreed between the authority and the developer, including profit on the cost.

For the purposes of such an agreement, the planning authority must have regard to 

“(i)	the proper planning and sustainable development of the area to which the application relates,

(ii)	the housing strategy and the specific objectives of the development plan which relate to the implementation of the strategy;

(iii)	the need to ensure the overall coherence of the development to which the application relates,

(iv)	the views of the applicant in relation to the impact of the agreement on the development.”

The applicant must, when making an application to which s. 96 applies, specify the manner in which he or she would propose to comply with the condition requiring an agreement to be entered into were the planning authority to attach such condition. Where the authority grants the permission to the applicant subject to such condition, it must have regard to the proposals he has made.

[*14] Where ownership of any land is transferred to a planning authority in pursuance of an agreement of the first type, the compensation payable to the owner is to be assessed as follows. Where the land was purchased by the applicant before the 25th August 1999 (the date of publication of the Bill), he is entitled to be paid whichever of these two sums is the greater:‑

(a)	the price actually paid for the land together with a sum in respect of interest to be determined by a property arbitrator (including interest in respect of a mortgage);

(b)	the value of the land calculated by reference to its existing use on the date of the transfer on the basis that on that date and thereafter it would have been unlawful to carry out any development on the land other than exempted development (hereafter the “existing use” value).

Similar provisions apply where the land was purchased before 25th August 1999 by the applicant pursuant to an enforceable agreement entered into before that date or an exercise of an option in writing granted or acquired before that date. There are also similar provisions where the applicant is a mortgagee in possession of land purchased before the 25th August 1999.

[*15] Where the land was acquired by the applicant by way of a gift or inheritance before the 25th August 1999, he is to be entitled to a sum equal to the market value of the land on the valuation date estimated in accordance with s. 15 of the Capital Acquisitions Tax Act 1976 or the existing use value, whichever is the greater. The valuation date under s. 21 of that Act is the date of the gift or the death of the person from when the land is inherited.

In the case of any other land ‑ i.e. land acquired after the 25th August 1999 ‑ the applicant is to be entitled only to its existing use value calculated on the basis already indicated.

Where because of the size, shape or “other attributes of the site”, the planning authority, or An Bord Pleanála on appeal, considers that an agreement under these provisions is not practical, the planning authority or An Bord Pleanála may as a condition of a grant of permission require the payment of the planning authority of an amount equivalent in value to a transfer of the land to the authority under those provisions. Any amount paid under this provision is to be accounted for in a separate account and may only be applied by a planning authority as capital for its functions under Part V or by the housing authority for its functions in relation to the provision of housing under the Housing Acts 1966 to 1998.
 
[*16] The following matters, in default of agreement are to be determined in accordance with the Acquisition of Land (Assessment of Compensation) Act 1919 by a property arbitrator appointed under the relevant legislation:‑

(1)	the number and price of the houses and sites to be transferred under the second and third procedures;

(2)	the compensation payable to the owner of the land under the first procedure;

(3)	the sum payable to the planning authority where an agreement is not practical.

Any other disputes in relation to any matter which may be the subject of an agreement under these provisions may be referred by the planning authority or any other prospective party to the agreement to An Bord Pleanála for determination. Where it is a condition of the granting of permission that such an agreement is to be entered into and, because of a dispute in respect of any matter relating to the agreement, it is not entered into before the expiration of eight weeks from the date of the grant of permission, the applicant or any other person with an interest in the land which the application relates may refer the dispute to An Bord Pleanála or a property arbitrator, whichever is appropriate.

[*17] Where the ownership of lands or sites is transferred to a planning authority in accordance with these provisions, the authority may

(i)	provide, or arrange for the provision of houses on the land or sites for the specified categories or for affordable housing,

(ii)	make land or sites available to the same persons for the development of houses by them for their own occupation, or

(iii)	make land or sites available to a body approved for the purposes of s. 6 of the Housing Miscellaneous (Provisions) Act 1992 for the provision of houses on the land for the specified categories or for affordable housing.

Pending such provision, the planning authority is required to maintain the land or sites in a manner which does not detract, and is not likely to detract, to a material degree from the amenity, character or appearance of land or houses in the neighbourhood of the land or sites.

Where a planning authority becomes satisfied that land, site or a house transferred to it under these provisions is no longer required for the purposes mentioned in the last paragraph, it may use the land, site or house for another purpose connected with its functions or sell it for the best price reasonably obtainable. In either case, it must pay an amount equal to the market value of [*18] the land, site or house or the proceeds of sale into the separate account to which reference has already been made.

	These provisions are not to apply to applications for permission for development consisting of the provision of houses by a body approved for the purposes of s. 6 of the Housing (Miscellaneous Provisions) Act 1992 for the provision of housing for persons in the specified categories where such houses are to be made available for letting only. Nor is it to apply to the conversion of an existing building or the reconstruction of a building to create one or more dwellings, provided that 50 per cent or more of the existing external fabric of the building is retained. It is also not to apply to the carrying out of works to an existing house.

The section provides that a permission granted under Part IV of the Local Government (Planning and Development) Act 1963 (proposed to be repealed and replaced by the Bill) or under the corresponding provisions of the Bill pursuant to an application made after the 25th August 1999, and to which Part V would have applied if the application for permission had been made after the inclusion of a housing strategy in the development plan, is to cease to have effect on the 31st December 2002 or on the expiry of a period of two years from the date of the grant of permission which ever is the later. This will [*19] apply to the entire development, where the development to which the permission relates is not commenced by that date or the expiry of that period. Where the development has commenced by that date or before the expiry of the period, it is to apply to any portion of the development consisting of buildings the external walls of which have not been completed. This latter provision is stated to be without prejudice to the obligation on the person carrying out the development to fulfil the other requirements of the permission in relation to so much of the development as is not affected by these provisions.

Section 97 provides that the section just dealt with (s.96) is not to apply to development

(a)	consisting of the provision of four or fewer houses, or

(b) 	for housing on land of 0.2 hectares or less, 
provided the requirements of the section are met. The person seeking exemption under this section must obtain from the planning authority a certificate stating that s. 96 is not to apply to a grant of permission in respect of the development concerned. An application for the certificate must be accompanied by a statutory declaration made by the applicant setting out the following information:‑ [*20]

(a)	in respect of the period of five years preceding the application particulars of the legal and beneficial ownership of the land that is within the applicant's knowledge or procurement;

(b)	the names of any persons with whom the applicant is acting in concert;

(c)	particulars of any interest that the applicant or any person with whom he is acting in concert has in land in the immediate vicinity, i.e. land that is more than four hundred metres away;

(d)	a statement that the applicant is not aware of any facts or circumstances that would constitute grounds for a refusal of a certificate;

(e)	such other information as may be prescribed by the Minister.

	A planning authority cannot grant a certificate where the applicant, or any person with whom he is acting in concert

(a)	has been granted, not earlier than five years before the date of the application, a certificate in respect of the development and the certificate remains in force;

(b)	has carried out a development to which the section applies not earlier than five years before the date of the application and one year after the coming into operation of the section in respect of the land or land in the immediate vicinity. This is not to apply where the aggregate of any such  [*21] development and the first mentioned development would not, if carried out, exceed four houses or
(2) 	where it would exceed four houses, the aggregate of the land the subject of any such development and the land on which it is proposed to carry out the first mentioned development does not exceed 0.2 hectares.

	Where the planning authority refuses to grant a certificate, it must inform the applicant by notice in writing of its reasons for so refusing. The applicant is then entitled, not later than three weeks from the date of the notification of refusal, to appeal to the Circuit Court for an order directing the planning authority to grant the applicant the certificate. (The time for appealing may be extended by the court). The court may either dismiss the appeal and affirm the refusal of the planning authority or allow the appeal and direct the planning authority to grant the applicant a certificate and, if the latter course is adopted, the planning authority must comply with the direction.

There are also provisions enabling the planning authority to revoke a certificate on an application to that effect by the owner of the land or a person acting with his permission, but may not do so where permission has been granted in respect of the development.
 
[*22] Finally, the section contains criminal sanctions where a person knowingly or recklessly makes a false or misleading statutory declaration or provides the planning authority with false or misleading information or documentation. There are also such sanctions in respect of the forging of certificates under the section.

Section 98 provides for the allocation of affordable housing. Under its provisions, a planning authority must establish a scheme which determines the order of priority to be accorded to eligible persons. Without prejudice to the generality of these provisions, the planning authority in establishing such a scheme are to have regard to the following:‑

“(a)	The accommodation needs of eligible persons, in particular eligible persons who have not previously purchased or built a house for their occupation or for any other purpose;
(b)	the current housing circumstances of eligible persons;	
(c)	the incomes or other financial circumstances of eligible persons (and priority may be accorded to eligible persons whose income level is lower than that of other eligible persons);
(d)	the period for which eligible persons have resided in the area of the development plans; [*23]
	(e)	whether eligible persons own houses or lands in the area of the development plan or elsewhere;
(f)	the distance of affordable housing from places of employment of eligible persons;
	(g)	such other matters as the planning authority considers appropriate or as may be prescribed for the purposes of this section.”

The planning authority may review a scheme made under the section and make amendments to it or a new scheme and must carry out such a review, when making or reviewing a development plan under Part II of the Bill.

	Section 99 enables the planning authority to impose controls on the resale of houses or sites provided or made available by them under these provisions. The sale or lease of the houses or sites are to be subject to such conditions as may be specified by the planning authority and, without prejudice to the generality of that provision, they may provide for
(a)	the notification of the planning authority of the resale of any house or land;
(b)	the basis on which any house sold or leased under the provisions in question may be occupied.

[*24] The terms and conditions imposed by the planning authority must include a condition that, where any house or land sold to any person under these provisions is first resold before the expiration of twenty years from the date of purchase, the person selling the house or land is to pay to the planning authority out of the proceeds of the sale a specified percentage of those proceeds. If, for example, the house or site is sold by the planning authority to a person for £75,000 but its market value is £100,000, the person on a resale must pay 25% of the proceeds to the planning authority. That amount, however, is to be reduced by 10 per cent in respect of each complete year after the tenth year during which the person to whom the house or land was sold has been in occupation of it as his normal place of residence.

Where the amount payable to the planning authority under these provisions would reduce the proceeds of the sale (disregarding solicitors’ and estate agents’ fees and costs) below the price actually paid, the amount payable shall be reduced to the extent necessary to avoid that result. Thus, in the example given, if the house were resold for £90,000, the amount payable out of the proceeds of sale would be £15,000 and not £25,000.

In calculating the amount payable to the planning authority under these provisions, due allowance is to be made for any “material improvements” [*25] made by the person to whom the house or land is sold. That does not include decoration or any improvements carried out on the land, including the construction of a house. In default of agreement, the amount is to be fixed under the arbitration procedures to which reference has already been made.

Monies accruing to a planning authority from such a resale are to be paid into the separate account to which reference has already been made and are to be subject to the requirements in relation to that account already mentioned.

Section 100 provides for the making of regulations by the Minister
“(a)	specifying the criteria for determining the size of the accommodation required by eligible persons, including minimum and maximum size requirements, having regard to any guidelines specified by the Minister in respect of the provision of housing under the Housing Acts, 1966 to 1998;
(b)	governing the determination of income for the purposes of section 93;
(c)	specifying matters for the purposes of section 94(5) or 98(3), and
(d)	setting out requirements related to terms and conditions referred to in section 99(1).”

[*26] The matters referred to in s. 94(5) are those which may be the subject of an agreement under s. 94 and which, in the event of a dispute, may be referred by the planning authority or any other prospective party to the agreement to An Bord Pleanála for determination.

Section 100 (2) provides that regulations made under subsection (1) may apply either generally or by reference to a specified class or classes of eligible persons or to any other matter as may be considered by the Minister for the Environment to be appropriate.

Section 101 provides that, where a planning authority performing any function under Part V is not the housing authority for the area for the function, it is to consult with the housing authority for the area with respect to the performance of that function.

Arguments by counsel assigned by the Court

Counsel assigned by the court submitted that certain provisions of Part V of the Bill were repugnant to the Constitution as being in violation of Article 40.3.2 and Article 43 protecting the property rights of the citizen and/or Article 40.1 guaranteeing the equality before the law of all citizens as human persons.

[*27] It was submitted that other provisions were in breach of Article 15.2.1 vesting the sole and exclusive power of making laws for the State in the Oireachtas.

Counsel submitted that, in reaching a conclusion as to whether Part V of the Bill violated any of these provisions of the Constitution, it was important to bear in mind a number of features of the legislation.

First, it was said that the definition of “eligible persons” was in somewhat general terms. A person whose income was not adequate, because of the specified criteria, to meet mortgage repayments for the purpose of the accommodation he required, was not as a result automatically qualified as an eligible person. The planning authority were also entitled to take into account “any other financial circumstances of the eligible person” and this, it was urged, gave the planning authority a huge measure of discretion over a matter that was ultimately fundamental in determining the amount of land which had to be transferred to the planning authority. Planning authorities might apply these provisions in a significantly different manner, thus leading to an unevenness throughout the country as to the determination of eligibility, which in turn was to be a major determinant of the amount of land which had to be transferred on an application for permission. It was said that this was particularly striking when one bore in mind that the percentage relationship [*28] between mortgage payments and income was fixed in a uniform way throughout the country. It was also said that the imprecise definition of “accommodation needs” could result in applicants for development being required to contribute to housing for people who are better off than they were. That was not satisfactorily met by s. 100(1)(a) enabling the Minister to make regulations specifying the criteria for determining the size of accommodation required by eligible persons.

	Secondly, it was submitted that the fact that it was left to the planning authority to determine the percentage of land ‑ subject to the maximum of twenty per cent ‑ to be transferred to the planning authority for the purposes of social and affordable housing would lead to unjust and anomalous consequences. Clearly, the requirements for such housing in different areas of the country would differ for a variety of socio‑economic factors, including the fact that the State in the past may have benefited some areas more than others and that some local authorities had been less effective in meeting their obligations to provide such housing under the Housing Acts. Thus, the specified percentage to which an applicant for planning permission in a particular area will be subject would be determined, not by his ability to contribute to the social need, but by the neglect of housing authorities in the past of their duties for which he was not certainly not responsible. It was [*29] notable, in this context, that the planning authority, in determining what the specified percentage should be and how much land should be transferred in any particular instance to them was not obliged to have any regard whatever to the financial circumstances of individual applicants for permission.

Thirdly, it was submitted that the singling out of applicants for permission for housing development for adverse treatment in order to increase the supply of social and affordable housing was wholly unjustifiable for a number of reasons. Those who simply retained a land bank without making any attempt to develop it were not affected. Neither were applicants for commercial development. Neither were those who made substantial profits from the increase in house prices, such as builders, builders’ suppliers and financial institutions. One possible consequence would be that commercial development would be encouraged at the expense of the housing development which it was the policy of the legislation to stimulate.

Fourthly, it was submitted that the method by which compensation was to be assessed for land compulsorily transferred to the planning authority was in many respects arbitrary and unfair. A person who had inherited land twenty years ago would be forced to accept either its value as of that date or its existing use value. In most cases, either valuation would be far below that of [*30] land which had been acquired in the years immediately preceding the publication of the legislation. No rational basis could be put forward for such a differentiation. Similarly, those who had bought land many years before the publication of the legislation and who had very good reasons for not developing the land ‑ e.g. because they wished to use it for farming ‑ were heavily penalised in comparison with those who bought the land at a time closer to the relevant date.

Fifthly, it was submitted that these difficulties were compounded by the absence of any payment for improvements carried out to the land by the applicant and of any compensation for injurious affection to the remaining land.

It was submitted that, while it was undoubtedly important and indeed essential for the executive and the legislature to do everything within their power to remedy the serious socio‑economic problems resulting from the high level of house prices now prevailing, it should not be done by requiring one section of the population ‑ owners legitimately wishing to develop their land ‑to bear a disproportionate share of alleviating the social ills in question. The transfer of the burden seemed to be based on the premise that such landowners were reaping a benefit from the increase in the value of their land brought about [*31] by rezoning decisions and that it was reasonable to require them to accept some reduction in those profits for the benefit of the community as a whole. That approach, however, it was said, had insufficient regard to the other factors which had contributed to the present high cost of housing. It was accepted that the steep acceleration in the cost of houses over the past decade not merely made it difficult for persons in the special categories to obtain housing accommodation, but also put such accommodation beyond the reach of persons with low or even moderate incomes. But this was the result, it was urged, of a number of factors for which landowners were not in any way responsible: the failure of central government and local authorities to provide affordable housing and the necessary infrastructure, the fact that wages had not kept pace with the increase in house prices and the constraints imposed on such wage increases by successive agreements between governments and various interest groups. The inadequate supply of housing which, it was acknowledged, was probably the most important feature in contributing to the present difficulties was a matter for society as a whole and not one somewhat arbitrarily selected group, to remedy.

While it was accepted that Part V, in common with the rest of the Bill, was entitled to the presumption of constitutionality, it was submitted that it [*32] violated the guarantees as to private property and equality before the law contained in the relevant articles of the Constitution.

It was accepted by counsel assigned by the court that, in considering the Bill, the court ought to apply the principle laid down in a number of decisions of the court to the effect that, where it was claimed that a Bill is repugnant to the Constitution, such repugnancy must be clearly established. It was further conceded that the objective of Part V, i.e. to provide housing for persons who either would have difficulty in obtaining housing or would be unable to obtain housing if left to rely on their own resources, was in the interests of the common good. It was submitted that the first issue which the court had to address was whether the relevant provisions providing for the compulsory transfer of land, sites or houses to the local authority constituted an unjust attack on property rights, having regard to the measure of compensation provided for affected landowners. The second issue was whether the relevant provisions were vitiated by invidious discrimination to an extent which rendered them repugnant to the Constitution. The third issue was whether the relevant provisions delegating to the local authority and/or the Minister for the Environment important critical decisions in regard to the compulsory transfer provisions constituted an unauthorised delegation of legislative power contrary to Article 15.2 of the Constitution.

[*33] It was submitted that, in considering whether Part V of the Bill violated the guarantees as to private property in the Constitution, the court should consider whether the indisputable delimitation of property rights effected by these provisions operates in an arbitrary and/or discriminatory fashion. The court would also have to consider whether the measures adopted were proportional to the requirements of the common good which it was sought to advance.

In considering those questions, the fact that the compensation to which the applicant for permission would be entitled in respect of the land which he was obliged to cede to the planning authority was not based on the market value of the land was of critical importance. While it had been held in Dreher .V. Irish Land Commission (1984) ILRM 904 that the absence of a provision for the payment of compensation based on the market value of the property being taken did not, of itself, mean that the legislation was unconstitutional, that decision was one of a series of decisions arising from the operations of the Irish Land Commission from which no general principle could safely be extracted. In contrast, it was submitted, that the absence of compensation had been found to be fatal to the constitutionality of the relevant legislation in Blake .v. The Attorney General (1982) IR 117. Similarly, the decision of the court in In re Article 26 and the Employment Equality Bill 1996 (1997) 2 IR 321 [*34] demonstrated that, while the purpose of legislation might be laudable and intended to serve the common good, it would be found to be unconstitutional if it sought to transfer the burden of achieving that objective to a particular section of the community in an unfair and discriminatory manner.

It was further urged that where this was done without compensation ‑ or, as in this case, compensation which fell significantly below the actual value of the property taken ‑ and without regard to the financial capacity and needs of those being benefited and those adversely affected, it constituted an unjust attack on the property rights of the latter and could not be justified by reference to Article 43. In support of this proposition, counsel relied on the decision of the court in Blake .v. The Attorney General (1982) 2 IR 117. In the present case, it was said that the remarkably wide ranging category of “eligible persons” and the complete absence of any reference to the financial circumstances of the affected landowners made the reasoning of the latter decision peculiarly applicable. Moreover, where a statutory scheme of this nature affecting property rights operated in an inconsistent manner throughout the country, by reason of that fact it also constituted an unjust attack on property rights, as had been held by the court in Brennan .v. The Attorney General (1994) ILRM 355.

[*35] It was accepted that, as had been held in Dreher and also in O'Callaghan .v. The Commissioners of Public Works (1995) ILRM 364, the absence of compensation and a fortiori the absence of compensation based on market value does not necessarily amount to an unjust attack on private property. However, what distinguished the present legislation was the combination of a significant disparity between the compensation and market value and anomalies and inequities in the way in which the scheme would operate. It was submitted that the present scheme also offended the principle of proportionality which had been developed in recent cases, such as Cox .v. Ireland (1992) 2 IR 503 and In re Article 26 of the Constitution and the Matrimonial Homes Bill 1993 (1994) 1 IR 305 and which had been applied to the articles protecting private property by Costello P. in Daly .v. Revenue Commissioners (1995) 3 IR 1.

It was further submitted that the statutory scheme violated the guarantee of equality before the law. While it was accepted that, as had been held in Quinn’s Supermarket Limited .v. Attorney General (1972) IR 1, the guarantee was not absolute in its nature, the somewhat narrow construction of Article 40.1 which had been adopted in that case, i.e. that the qualifying words “as human persons” indicated that the inequality proscribed by the article was one based on matters such as race, gender, religion or political opinions, had not found favour in later decisions of the court such as McKenna .v. An Taoiseach [*36] (No.2) (1995) IR 10 and Howard .v. The Commissioner of Public Works (1994) 1 IR 101. It was submitted that inequalities which unfairly or arbitrarily restricted a person’s property rights or means of earning livelihood or which made a person unfairly bear a disproportionate share of a burden which should be assumed by society as a whole were prohibited by Article 40.1. In the present case, the legislation unfairly and invidiously discriminated between landowners who proposed to develop their land for housing and persons who do not intend to develop their land. The latter category may simply be retaining the land as a long term investment without developing it and thereby be conferring no benefit on society. Where that person’s land is compulsorily acquired for housing by a local authority under the Housing Acts, he will have a right to compensation at market value. The person who desires to develop land and make housing available effectively pays a substantial penalty.

Counsel also relied on the different treatment for particular categories of person in the assessment of compensation to which reference has already been made as constituting further invidious discrimination. Similar considerations applied to the failure to have any regard to the relative financial circumstances of the developer and the persons entitled to affordable housing and the different treatment of persons applying for housing development and commercial development.

[*37] It was finally submitted by counsel assigned by the court that Part V of the Bill violated the provisions of Article 15.2 vesting the sole and exclusive power of making laws for the State in the Oireachtas. It was accepted that the provisions of section 94(5)(a)(vi), under which planning authorities, in making an estimate of the requirement for affordable housing are to have regard to certain specified matters and 

“such other matters as the planning authority considers appropriate or as may be prescribed for the purpose of this subsection” 

were constitutionally valid. It was appropriate, it was said, that, while the Minister retained a power to direct planning authorities to take particular matters into account which had not been specified in the legislation, the planning authority should also have a residual discretion to have regard to matters which might be of particular significance having regard to conditions in their area. Counsel, however, contrasted that provision with section 93(3) which enables the planning authority to “take into account” the financial circumstances of eligible persons or those who might reasonably be expected to reside with them. Although a person in need of accommodation whose net income would be inadequate to meet mortgage repayments as determined under subsection (3) was prima facie treated as an eligible person, subsection (3) conferred on the planning authority a wide discretion as to the other financial [*38] circumstances of the person concerned which they could take into account. The complete absence of any policy or principles in Part V as to how that discretion was to be exercised clearly violated Article 15.1. The same considerations applied to the failure to specify with precision what was meant by “accommodation needs” of eligible persons.

It was submitted that the constitutional frailty of s. 93(3) was not cured by the power given to the Minister under s. 100(1) to make regulations, since that power was confined to regulations

“ governing the determination of income for the purposes of s. 93.”

The significance of the wide‑ranging powers thus vested in planning authority, counsel said, was that the list of eligible persons entitled to affordable housing could become so large that the entire of the twenty percent reserved for housing for the special categories or affordable housing could be required in the case of every housing development, although that was plainly not what was envisaged in the other provisions under Part V.

These defects in Part V, counsel submitted. could have been avoided by more precise statutory definitions of eligible persons which did not leave so large an area of discretion to planning authorities.

[*39] The Attorney General, and counsel appearing with him, submitted that the purpose of Part V of the legislation was two fold:‑

(1)	to enable as many people as possible to own their own houses;
(2)	to ensure that, so far as possible, the least well off members of society were not required by economic necessity to live in segregated areas.

It was pointed out that the first objective had formed part of the policy of successive governments since the foundation of the State and that the failure to meet the second objective had given rise to grave social problems in recent decades and that, in the case of the second objecction, it had also been the policy of successive Governments for a considerable period to bring it about.

It was submitted that, to the extent that the submissions of counsel assigned by the court were based on the premiss that the present difficulties being experienced in the provision of affordable housing were the result of inaction by central government or local authorities, it was ill‑founded. They said that the amount spent on what could be broadly described as “social housing” had been increasing in every year for the past four years and that it was proposed to expend sums in the order of six billion pounds on such housing over the next six years.

[*40] It was submitted that the development of the housing market has in recent years created two inter‑related problems. First, there has been an increasing demand for social housing by reason of increased population numbers and changes in society leading to more social units requiring separate housing. It was said that the fact that this has occurred at a time when the cost of land is relatively high means that there is a decreasing stock of land for local authorities to acquire and build upon. Secondly, the rapid increase in the cost of housing has created particular problems for first time buyers. Such people need affordable housing, it was said, to bridge the gap between what they can afford and what is available on the market. This was demonstrated by the increase in house prices in recent years resulting in a gap between the mortgages which people can afford and their incomes. It was said that failure to meet the increased demand for social housing would have implications for wage demands and consequent economic dislocation and would also threaten social cohesion.

It was submitted that the Bill, including Part V, enjoyed the presumption of constitutionality. The court should not decide that Part V of the Bill or any part thereof was repugnant to the Constitution unless that repugnancy had been clearly established.

[*41] Article 43.2.1 recognised that the exercise of rights of private property ought, in civil society, to be regulated by the principles of social justice. It was apparently conceded by counsel assigned by the court that the objectives already referred to were, in that context, constitutionally permissible. The essential issue was as to whether, in attaining those objectives, the Oireachtas was entitled to provide for compensation in the manner prescribed by Part V or whether those provisions constituted an “unjust attack” on the private property rights of citizens within the meaning of Article 40.3.2.

It was submitted that, in approaching that question, it was essential to bear in mind that the Bill, in providing for the payment of compensation at a level which would admittedly be lower than the market value of the relevant portion of the land as it would normally be determined on a compulsorily acquisition, was doing no more than requiring the landowner, if he wished to develop the land, to surrender some part of the enhanced value of his property which had resulted from the operation of a planning regime intended for the benefit of the community as a whole. Thus, the impugned provisions operated only where a person applied for permission to develop the land and related at most to twenty percent of the land. Even in relation to that portion, there was no question of the applicant not being compensated: instead, he was [*42] compensated at a level which left out of account some of the enhanced value of the land resulting from its being zoned for residential use. The submissions of counsel assigned by the court amounted in effect to an argument that, in the case of every interference with property rights, even where mandated by the common good, the acquiring authority should be required to compensate the owner at the level of market value. That was wrong in principle and contrary to the jurisprudence of this court as reflected in Dreher .v. Irish Land Commission and O'Callaghan .v. The Commissioners of Public Works. The provisions in the present case were clearly intended to ensure that those who, quite legitimately, wished to realise the potential of their land, should be required to contribute a relatively modest proportion of the enhanced value resulting from planning decisions, including the rezoning of the land to the attainment of an important social objective. That was not only a permissible restriction on the exercise of private property rights, but was also reasonably proportionate to the end sought to be achieved, and hence could not be said to constitute an unjust attack on property rights.

Cases such as Blake .v. The Attorney General and Brennan .v. The Attorney General were clearly distinguishable, it was submitted, since in those cases it was not simply the absence of compensation which fatally flawed the relevant legislation. In Blake, there was no provision whatever for [*43] compensation for the losses sustained by the landlords and in addition the freezing of the rents, which was accepted by the court as being a legitimate social objective in the context of Article 43, had been effected in an arbitrary and a discriminatory manner which could not be rationally justified. In Brennan, the rating system had been demonstrated to be an anomalous and anachronistic form of taxation imposed on property owners which again could not be rationally justified. It was submitted that, in the present case, the statutory scheme had been carefully designed so as to ensure that the landowners who, as a condition of developing their land for housing, were required to cede twenty percent or less of the land in order to provide affordable housing or housing for special categories, received at the minimum compensation equivalent to the existing use value of the land. That constituted what could be described as the essential value of the land and, at worst, what the owner was losing in respect of that portion was some of the enhanced value deriving from planning decisions taken for the benefit of the community. In addition, care had been taken to ensure that those who bought land before the provisions of the Bill were published got back at least what they had paid for the land together with interest payments to reflect the investment they had made in the land. In addition, the Bill sought to ensure that relatively small scale development were not affected by its provisions. Far from being arbitrary [*44] or discriminatory, it was submitted that these provisions represented a rational and appropriate scheme of compensation for the persons affected.

They further submitted that, having regard to the decisions of the High Court in Murtagh Properties .v. Cleary (1972) IR 330, Nova Media Services .v. Minister for Posts and Telegraphs (1984) ILRM 161 and Attorney General .v. Paperlink Limited (1984) ILRM 373, the court was entitled to have regard to the Directive Principles of Social Policy set out in Article 45 and, in particular, the requirement that

“2 	The State shall, in particular, direct its policy towards securing... 
ii. 	That the ownership and control of the material resources of the community may be so distributed amongst private individuals and the various classes as best to subserve the common good.”

As to the submission that these provisions also violated the constitutional guarantee of equality before the law, it was submitted this was not, and could never have been intended to be, an absolute guarantee of equality in all circumstances. Even if it could be said that the construction adopted of Article 40.1 in Quinn's Supermarket Ltd. .v. The Attorney General was somewhat narrow, it would be extending the application of the guarantee far beyond what [*45] was envisaged to hold that the distinctions necessarily drawn by Part V of the Bill between different categories of landowners offended the guarantee of equality before the law.

As to the argument based on what was claimed to be the unequal treatment afforded to landowners on the one hand and eligible persons on the other hand, it was submitted that the Oireachtas had arrived at a fair and reasonable balance between the competing interests involved. Clear legislative guidelines had been given as to the basis on which persons could be classified as eligible persons and, far from ignoring the circumstances of individual landowners, care had been taken to exclude entirely from the ambit of the Bill relatively small scale development.

As to the submission that the degree of discretion afforded to the planning authorities violated Article 15.2 of the Constitution as being an impermissible form of delegated legislation, it was said that this was wholly unsupported by the decisions of this court and the High Court. In City View Press Ltd. and Anor. .v. An Comhairle Oiliúna and Others (1980) IR 381, the empowering legislation had not indicated what factors were to be taken into account by AnCo in imposing particular levies on employers and it was held by McMahon J. in the High Court that this did not offend the provisions of [*46] Article 15.1. His decision to that effect had not been appealed to this court. By contrast, in Laurentiu .v. Minister for Justice (2000) 1 ILRM 1, this court had found the power given to the Minister for Justice to make orders in respect of aliens so wide ranging as to constitute an impermissible abdication by the Oireachtas of its legislative role. That could not conceivably be said to the position in the present case.

Conclusions

It was held by the former Supreme Court in Re Offences against the State (Amendment) Bill, (1940) IR 470 that a Bill referred to the court by the President pursuant to Article 26 enjoys the same presumption of constitutionality as an act of the Oireachtas. No argument has been advanced to the court in this case that that view of the law, which was reaffirmed in other references before the former court and this court, was in any way erroneous. It follows, that what has sometimes been called the “double construction” rule applies and that, if in respect of any provision or provisions of Part V of the Bill two or more constructions are reasonably open, one of which is constitutional and the other is unconstitutional, it must be presumed that the Oireachtas intended only the constitutional construction: see McDonald .v. Bord na gCon (No. 2), (1965) IR 217. It also follows that, in accordance with the decision of the court in East Donegal Co‑operative Ltd. .v. Attorney [*47] General (1970) IR 317 it is to be presumed that the Oireachtas intended that any proceedings, procedures, discretions or adjudications permitted, provided for or prescribed by Part V of the Bill would be conducted in accordance with the principles of constitutional justice and that any departure from those principles would be restrained or corrected by the courts.

Articles 40.3.2 and 43

Article 43 of the Constitution under the heading “Private Property” provides that

“1.	1° 	The State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods.
	2°	    The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property.
2.	1° 	The State recognises, however, that the exercise of the rights mentioned in the foregoing provisions of this Article ought, in civil society, to be regulated by the principles of social justice.
2°	 The State, accordingly, 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.”

[*48] Article 40.3 provides that 
“1° 	The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen. 
2° 	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 decided cases demonstrate that the interpretation of these Articles and, in particular, the analysis of the relationship between Article 40.2 and Article 43 have not been free from difficulty.

At a comparatively early stage in the history of the Constitution, the former Supreme Court in Buckley and Others .v. Attorney General (1950) IR 67 emphatically rejected the proposition that the effect of Article 43 was merely to prevent the total abolition of private property in the State. It was also made clear that the courts were entitled to determine whether, in any particular case, a restriction of rights of private property was required by the exigencies of the common good. The finding by the court in a later case, Attorney General .v. Southern Industrial Trust (1960) 94 ILTR 161 that the delimitation of private property rights and the assessment of what the common good required [*49] were “matters primarily for the consideration of the Oireachtas” has been recognised in subsequent authorities as being in conflict with the statement of the law in Buckley and Others .v. The Attorney General and the former decision has not been followed: see Central Dublin Development Association .v. Attorney General (1975) 109 ILTR 69 and Blake .v. Attorney General (1982) IR 117.

In the latter case, which concerned a challenge to the constitutionality of the Rent Restrictions Act 1960, O’Higgins C.J. speaking for this court, drew the following distinction between the effects of Articles 43 and 40:-
“[Article 43] is an article which prohibits the abolition of private property as an institution, but at the same time permits, in particular circumstances, the regulation of the exercise of that right and of the general right to transfer, bequeath and inherit property. In short, it is an article directed to the State and to its attitude to these rights, which are declared to be antecedent to positive law. It does not deal with the citizen’s right to a particular item of property, such as controlled premises. Such rights are dealt with in Article 40 under the heading ‘Personal Rights’ and are specifically designated among the personal rights of citizens. Under Article 40 the State is bound, in its laws, to [*50] respect and as far as practicable to defend and vindicate the personal rights of the citizen. 
“There exists, therefore, a double protection for the property rights of a citizen. As far as he is concerned, the State cannot abolish or attempt to abolish the right of private ownership as an institution or the general right to transfer, bequeath and inherit property. In addition, he has the further protection under Article 40 as to the exercise by him of his own property rights in particular items of property.”

In that case, the court held that the legislation in question could not be regarded as regulating or delimiting the property rights comprehended by Article 43 and that, accordingly, its validity fell to be determined solely by reference to the provisions of Article 40.3.2. The sole question to be determined was whether the impugned provisions of the Act constituted an unjust attack on the property rights of the plaintiffs.

It is clear, particularly when the later decisions of the court are examined, that this approach cannot now be adopted without at least some reservations. It is no doubt the case that the individual citizen who challenges the constitutional validity of legislation which purports to delimit or regulate the property rights [*51] undertakes the burden of establishing that the legislation in question constitutes an unjust attack on those rights within the meaning of Article 40. It is also possible to envisage an extreme case in which the Oireachtas by some form of attainder legislation purported to confiscate the property of an individual citizen without any social justification whatever. In such a case, no enquiry would be called for as to whether the legislation also conformed to the requirements of Article 43. The challenge typically arises, however, as it has done here, in circumstances where the State contend that the legislation is required by the exigencies of the common good. In such cases, it is inevitable that there will be an enquiry as to whether, objectively viewed, it could be regarded as so required and as to whether the restrictions or delimitations effected of the property rights of individual citizens (including the plaintiff in cases other than references under Article 26) are reasonably proportionate to the ends sought to be achieved.

That the provisions of Article 43 are relevant to the enquiry undertaken by the courts where they are considering a challenge to the constitutionality of legislation on the ground that it constitutes an unjust attack on the property rights of the citizen within the meaning of Article 40 was made clear in the subsequent decision of this court in Dreher .v. Irish Land Commission (1984) ILRM 94 which it will be necessary to consider at a later point.

[*52] The objectives sought to be achieved by Part V of the Bill are clear: to enable people of relatively moderate means or suffering from some form of social or economic handicap to buy their own homes in an economic climate where housing costs and average incomes make that difficult and to encourage integrated housing development so as to avoid the creation of large scale housing developments confined to people in the lower income groups.

It can scarcely be disputed that it was within the competence of the Oireachtas to decide that the achievement of these objectives would be socially just and required by the common good. It is accepted on behalf of the State that the use of planning legislation, which has traditionally been concerned with the orderly and beneficial planning and development of the physical environment, for a purely social objective of this nature is novel and even radical The court is satisfied, however, that it is an objective which it was entirely within the competence of the Oireachtas to decide to attain, as best it could, by the use of planning machinery. The essential question for resolution, in the context of Article 40 and Article 43 , is whether the means employed constitute an unjust attack on property rights.

[*53] That statutory scheme has been fully explained in the earlier part of this judgment. It clearly envisages that a landowner who develops his property for housing and who is not exempted by other provisions of Part V will in general be required to cede up to twenty percent of the land to the housing authority for the provision of houses at a price which reflects the existing use of the land (normally agricultural value) and which, accordingly, will be significantly below the market value of the land, if by market value is meant the price which the property might be expected to fetch if sold on the open market enjoying the same right to develop as that enjoyed by the landowner in respect of the remaining 80% or more of the lands in question. Compensation will, accordingly, be paid for the undoubted restriction on the exercise by the landowner of his property rights, but it will in that sense be compensation at a level significantly short of its market value.

The approach which, in general, should be taken by the courts in considering whether a constitutional right has been validly abridged were stated as follows by Costello J., as he then was, in Heaney v. Ireland (1994) 3 IR 593 in a passage subsequently approved by this court:-
“In considering whether a restriction on the exercise of rights is permitted by the Constitution the courts in this country or elsewhere have found it helpful to apply the test of proportionality, [*54] a test which contains the notion of minimum restraint on the exercise of protected rights and the exigencies of the common good in a democratic society. This is a test frequently adopted by the European Court of Human Rights (see, for example, Sunday Times .v. United Kingdom (1979) BHRR 245) and has recently been formulated by the Supreme Court in Canada in the following terms:-
‘The objective of the impugned provision must be of sufficient importance to warrant the overriding of a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must 
(a)	be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations; 
(b)	impair the right as little as possible; and 
(c) be such that their effects on rights are proportional to the objective; see Chaulk .v. R (1990) 3 SCR 1303, 1335~1336.’

 [*55] The same learned judge applied those principles to private property rights in Daly .v. Revenue Commissioners (1995) 3 IR 1, as did Keane J. in Iarnrod Éireann .v. Ireland (1995) 2 ILRM 161 in the following passage:-
	“If the State elects to invade the property rights of the individual citizen, it can only do so to the extent that this is required by the exigencies of the common good. If the means used are disproportionate to the ends sought, the invasion will constitute an ‘unjust attack’ within the meaning of Article 40.3.2.”

In considering the application of these principles to Part V of the Bill, it is important to bear in mind that, where the property of the citizen is compulsorily acquired by the State or one of its agencies for what are deemed by the legislature to be important social objectives, it has in general been recognised that he or she is entitled to at least the market value of the property so taken as constituting fair compensation for the invasion of his property rights. However, that this generally recognised right, although unquestionably of importance, is not absolute was made clear in two decisions of this court.

In Dreher .v. Irish Land Commission, it was contended that the statutory provisions enabling the price to be paid by the Land Commission for land compulsorily acquired to be paid in land bonds equal in nominal value to the [*56] sum fixed by the judicial commissioner was inconsistent with Articles 40 and 43 of the Constitution. The facts in Dreher were that the Land Commission had made a compulsory acquisition of lands, the property of the plaintiff, in 1967. The price of the lands had been fixed by them at the sum of £24,000 to be paid in 8% land bonds equal in nominal amount to £24,000. The plaintiff appealed against the order and the judicial commissioner fixed the price of the land at £30,000 payable in 9¾% bonds equal in nominal value to £30,000. The plaintiff did not want to take the land bonds and sought cash instead. The Land Commission were only empowered to purchase for cash where land was offered to them for sale under s. 27 of the Land Act 1950 and when there was a right to vacant possession and the Land Commission required the land for the provision of new holdings. On the appointed day for the purposes of the legislation, £30,000 worth in nominal value of 9¾% bonds were placed to the credit of the plaintiff. He would have been entitled to dispose of the bonds as from the moment he made title to the lands or within three weeks or so of making title. At that date, the value of the bonds was 98: they continued to fluctuate in value and at one stage actually stood at 101.5. At the date of the trial, however, they had fallen to 71.

[*57] This court unanimously rejected the plaintiff’s claim that these provisions were in violation of Articles 40 and 43. In the course of his judgment, Walsh J. said:- 
“It does not necessarily follow that the market value of lands at any given time is the equivalent of just compensation as there may be circumstances where it could be considerably less than just compensation and others where it might in fact be greater than just compensation. The market value of any property whether it be land or chattels or bonds may be affected in one way or another by current economic trends or other transient conditions of society.”

It was pointed out in that case that there was a statutory requirement that the land bonds should be issued at a rate which kept them as near as could be to par value during the period of the issue. As already noted, during the currency of the period when they could have been realised by the plaintiff, they actually stood at one stage above par. The case, accordingly, should be regarded as one which was essentially decided on its special facts, as Henchy J. made clear in a brief concurring judgment.

The plaintiff, in O'Callaghan .v. The Commissioners of Public Works in Ireland and Another, had bought land at Loughshinny on the coast of County [*58] Dublin which included a 38½ acre site occupied by a prehistoric promontory fort. This had been listed for preservation under the relevant legislation, which also prohibited the owner from interfering with the site without giving prior notice to the Commissioners of Public Works. Soon after acquiring the land, the plaintiff, who was aware that the land contained an ancient monument, employed contractors to plough a part of the area occupied by the fort. The Commissioners then made a preservation order which prevented the plaintiff from carrying out the ploughing operations on the lands in question. The legislation contained no provision for the payment of compensation in respect of such an order and the plaintiff instituted proceedings claiming that this was an unjust attack on the property rights of citizens within the meaning of Article 40.3.2.

In the judgment of the court upholding the High Court decision refusing the plaintiff’s claim, O'Higgins C.J. said that:- 
“In the view of the court the absence of such a provision for the payment of compensation to him in respect of a limitation of use of which he was substantially on notice before his purchase and which as a requirement of what should be regarded as the common duty of all citizens ‑ to preserve such a monument ‑ can be no ground for suggesting that the prohibition or limitation is an [*59] unjust attack on his property rights. In short, by the impugned statute as the occasion requires, the State, through s. 8 delimits by law, not the right of private ownership or the general right to transfer etc. but the exercise of those rights ‑ in this instance the user of land ‑ so that that user will be reconciled with the exigencies of the common good ‑ here, the national aspirations as set out in the preamble and Article 1 of the Constitution.”

Again, while the court held in that case that the absence of any provision for compensation did not invalidate the imposition by statute of the restriction in question, the fact that the plaintiff was aware of the existence of such a restriction at the time that he acquired the land seems to have played at least some part in the ultimate result.

There can be no doubt that 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. As Walsh J. in Dreher pointed out, even that may not be a sufficient measure of compensation in some cases: hence the additional elements of compensation payable in compulsory acquisitions of land effected under the Land Clauses Consolidation Act as determined under the Assessment of Land [*60] (Acquisition Of Compensation) Act 1919 as subsequently amended, by virtue of which the landowner is to be compensated, not merely for the market value of his land, but also for such additional elements of damage to him as disturbance, injurious affection and severance.

There are, however, special considerations applicable in the case of restrictions on the use of land imposed under planning legislation, such as those now under consideration. Under the Local Government (Planning and Development) Act, 1963 proposed to be repealed and re‑enacted with many modifications by the Bill, where the value of an interest of any person existing in land to which a planning decision related was reduced, the person was entitled to be paid by way of compensation the amount of such reduction of value and, in the case of the occupier of the land, the damage (if any) to his trade, business or profession carried on on the land. This prima facie entitlement to compensation was, however, severely curtailed in a number of respects and the validity of these provisions in constitutional terms was considered in detail by Kenny J. in Central Dublin Development Association .v. Attorney General. He rejected the contention that such limitations constituted an arbitrary confiscation of such rights: he said that a provision, in particular circumstances envisaged by the legislation, that an interference with one of the rights of property was not to be the subject matter of compensation was not a [*61] breach of Article 43 and did not fail to defend and vindicate the personal rights of property. He also concluded that it was not an unjust attack upon such rights.

Planning legislation of the nature now under consideration is of general application and has been a feature of our law ever since the enactment of the Town and Regional Planning Act, 1934, although it did not take its modern, comprehensive form until the enactment of the 1963 Act Every person who acquires or inherits land takes it subject to any restrictions which the general law of planning imposes on the use of the property in the public interest. Inevitably, the fact that permission for a particular type of development may not be available for the land will, in certain circumstances, depreciate the value in the open market of that land. Conversely, where the person obtains a permission for a particular development the value of the land in the open market may be enhanced. As Finlay C.J. observed in Pine Valley Developments and Others .v. The Minister for the Environment and the Attorney General (1987) IR 23:-
“What the Minister [for Local Government] was doing when making his decision in 1977 to grant outline planning permission to the then owner of these lands was not intended as any form of delimitation or invasion of the rights of the owners of those lands [*62] but was rather intended as an enlargement and enhancement of those rights.
 “The purchase of land for development purposes is manifestly a major example of a speculative or risk commercial enterprise. Changes in market values or economic forces, changes in decisions of planning authorities and the rescission of them, and many other factors, indeed, may make the land more or less valuable in the hands of its purchasers. [Emphasis added]

	Decisions of the United States Supreme Court in this area are of limited assistance, having regard to the significantly different terms of the Fifth Amendment which simply provides that:
“Private property [shall not] be taken for public use, without just compensation.” 
However, it may be noted that in United States .v. Fuller and Another (409 US) 488, it was held that where the Government had “condemned” ‑ i.e. sought to acquire compulsorily ‑ certain lands, the assessment of compensation could legitimately be made on the basis that an element of the value of the land arising from the availability of grazing permits in respect of other land need not be taken into account. Rehnquist C.J. speaking for the court said:

 [*63] “These cases go far toward establishing the general principle that the Government as condemnor may not be required to compensate a condemnee for elements of value that the Government has created, or that it might have destroyed under the exercise of governmental authority other than the power of eminent domain [i.e. compulsory purchase]. If, as in Rands the Government need not pay for value that it could have acquired by exercise of a servitude arising under the commerce power, it would seem a fortiori that it need not compensate for value that it could remove by revocation of a permit for the use of lands that it owned outright.”

In the present case, as a condition of obtaining a planning permission for the development of lands for residential purposes, the owner may be required to cede some part of the enhanced value of the land deriving both from its zoning for residential purposes and the grant of permission in order to meet what is considered by the Oireachtas to be a desirable social objective, namely the provision of affordable housing and housing for persons in the special categories and of integrated housing. Applying the tests proposed by Costello J. in Heaney .v. Ireland and subsequently endorsed by this court, the court in the case of the present Bill is satisfied that the scheme passes those [*64] tests. They are rationally connected to an objective of sufficient importance to warrant interference with a constitutionally protected right and, given the serious social problems which they are designed to meet, they undoubtedly relate to concerns which, in a free and democratic society, should be regarded as pressing and substantial. At the same time, the court is satisfied that they impair those rights as little as possible and their effects on those rights are proportionate to the objectives sought to be attained.

Nor in the view of the court could the scheme be regarded as arbitrary, unfair or based on irrational considerations. It was reasonable to differentiate between those persons who bought their land after the Bill had been published and those who had bought before and to afford somewhat more generous treatment to the latter category. The court is further satisfied that it was not unfair or arbitrary to distinguish between those who acquired land by purchase before August 1999 and those who acquired it by inheritance before that date. It is true that the latter category are not to be entitled to interest, but there is undoubtedly a distinction in principle between their position and that of those who purchased property: it was not unreasonable to treat the latter as being entitled to interest in respect of the purchase money paid by them, whether in the form of mortgage interest or otherwise, depending on the circumstances of the particular purchase. At the same time, the impact of the statutory scheme is [*65] limited so that those carrying out developments consisting of the provision of four or fewer houses or housing on land of 0.2 hectares or less can obtain certificates relieving them from the provisions of section 96. In addition, as already noted, there are elaborate provisions enabling the planning authority to “claw back” profits effected on the resale of houses built in pursuance of the statutory scheme.

Support for the view that the statutory scheme set out in Part V of the Bill does not constitute an impermissible violation of private property rights is to be found in the decision of the European Court of Human Rights in James .v. United Kingdom (1986) 8 EHRR 123. In that case the trustees of the Westminster Estate in London had been deprived of the ownership of a number of properties forming part of the estate through the exercise by tenants of those properties of rights of acquisition conferred by the relevant English legislation. They complained inter alia that the compulsory transfer of these properties and the calculation of the price received for the transfer amounted to a breach of Article 1 of Protocol No. 1 of the European Convention on Human Rights and Fundamental Freedoms which reads:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the [*66] conditions provided for by law and the general principles of international law. 
“The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

One of the grounds of challenge was that the Act deprived the applicants of their property at a price “always below, and often far below the market value.”

Having found that the stated social objectives of the legislation in question came within what is described in the jurisprudence of that court as the “margin of appreciation” of the contracting State, the court went on to find as follows:‑

“Like the Commission, the court observes that under the legal systems of the contracting States, the taking of property in the public interest without payment of compensation is treated as justifiable only in exceptional circumstances not relevant for present purposes. As far as Article 1 is concerned, the protection [*67] of the right of property it affords would be largely illusory and ineffective in the absence of any equivalent principle. Clearly, compensation terms are material to the assessment whether the contested legislation respects a fair balance between the various interests at stake and, notably, whether it does not impose a disproportionate burden on the applicants. 
“The court further accepts the Commission’s conclusion as to the standard of compensation: the taking of property without payment of an amount reasonably related to its value would normally constitute a disproportionate interference which could not be considered justifiable under Article 1. Article 1 does not, however, guarantee a right to full compensation in all circumstances. Legitimate objectives of ‘public interest’ such as pursued in measures of economic reform or measures designed to achieve greater social justice, may call for less than reimbursement of the full market value. Furthermore, the court's power of review is limited to ascertaining whether the choice of compensation terms falls outside the State’s wide margin of appreciation in this domain.”

[*68] It will be seen that the tests adopted by the European Court of Human Rights in that case do not differ in substance from those which have been applied by the courts in this jurisdiction in this area. The court is satisfied that it has not been established that Part V of the Bill is repugnant to Articles 40.3.2 and 43 of the Constitution.

In these circumstances, it is not necessary to express any opinion on the submission advanced by the Attorney General that the court , in deciding this Reference, should have regard to the Directive Principles of Social Policy set out in Article 45 of the Constitution. The court notes that, in the High Court judgments where account was taken of the Directive Principles, no question appears to have arisen of their application in the making of laws by the Oireachtas. The question as to whether those High Court decisions were correctly decided and, if so, whether they should be followed in a case such as the present must await resolution in another case.

Article 40.1

Article 40.1 provides that:-
“All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its [*69] enactments have due regard to differences of capacity, physical and moral, and of social function.”

Speaking for the majority of this court in Quinn’s Supermarket .v. Attorney General, Walsh J. said of this Article:-
“This provision is not a guarantee of absolute equality for all citizens in all circumstances but it is a guarantee of equality as human persons and (as the Irish text of the Constitution makes quite clear) is a guarantee related to their dignity as human beings and a guarantee against any inequalities grounded upon an assumption, or indeed a belief, that some individual or individuals or classes of individuals, by reason of their human attributes or their ethnic or racial, social or religious background, are to be treated as the inferior or superior of other individuals in the community. This list does not pretend to be complete; but it is merely intended to illustrate the view that this guarantee refers to human persons for what they are in themselves rather than to any lawful activities, trades or pursuits which they may engage in or follow.”

[*70] It has been suggested by some commentators that this is a somewhat narrow construction of the guarantee of equality contained in Article 40, but for reasons which will shortly appear, the court is satisfied that it is unnecessary in the present proceedings to consider whether those criticisms are well founded.

The arguments advanced by counsel assigned by the court under this heading necessarily overlapped to a considerable extent with those advanced by them in relation to the private property articles. The court has already rejected the argument that the legislation unfairly and invidiously discriminates between landowners who propose to develop their land for housing and persons who do not intend to develop their land. It has also rejected arguments based on the different treatment for particular categories of person in the assessment of compensation.

It was also urged that the general scheme of Part V discriminated invidiously and unfairly between the affected landowners and the persons benefiting from the scheme and that the result was to require some people to bear a disproportionate share of what should be the responsibility of society as a whole.

[*71] The court is satisfied that these arguments are not well founded. The fact that a particular planning scheme may result in the conferring of benefits on some categories of persons seen by the Oireachtas as being in particular need of assistance and that this is done at the expense of landowners who are benefiting financially from related planning decisions can be said to be a form of unequal treatment. However, Article 40 does not preclude the Oireachtas from enacting legislation based on any form of discrimination: as has often been pointed out, far from promoting equality, such an approach would simply result in greater inequality in our society. As Barrington J. pointed out in Brennan and Others .v. Attorney General, in a passage subsequently approved by this court in In Re Article 26 and the Employment Equality Bill 1996, where classifications are made by the Oireachtas for a legitimate legislative purpose, are relevant to that purpose and treat each class fairly, they are not constitutionally invalid. The court is satisfied that, in the present case, the Oireachtas in their legislation have met those requirements.

It should be pointed out that, in reaching that conclusion, the court has had regard to the observation by Kenny J. in Ryan .v. Attorney General (1965) IR 283 that the presumption that every Act of the Oireachtas is constitutional until the contrary is clearly established applies with particular force to legislation dealing with controversial social and economic matters. It is [*72] peculiarly the province of the Oireachtas to seek to reconcile in this area the conflicting rights of different sections of society and that clearly places a heavy onus on those who assert that the manner in which they have sought to reconcile those conflicting rights is in breach of the guarantee of equality.

The court is satisfied that it has not been established that Part V of the Bill is repugnant to Article 40 of the Constitution.

Article 15.2
Article 15.2 of the Constitution provides that:-
“The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.”

In City View Press .v. An Comhairle Oiliúna (1980) IR 381 O’Higgins C.J., speaking for the court, explained the criteria for determining whether a delegation of legislative power is permissible under that Article as follows:-
“In the view of this court, the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself. If it be, then it is not authorised [*73] for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution. On the other hand, if it be within the permitted limits ‑ if the law is laid down in the statute and details only filled in or completed by the designated Minister or subordinate body ‑ there is no unauthorised delegation of legislative power.”

To the same effect is the decision of this court in Laurentiu .v. Minister for Justice.

In the present case, it is undoubtedly envisaged in the statutory scheme that some matters are to be determined either by planning authorities in relation to their particular areas or by the Minister for the Environment.

As already noted, counsel assigned by the court submitted that the requirement in s. 93(3) that a planning authority, in determining the eligibility of a person for the purposes of Part V, should take into account “any other financial circumstances” of the eligible person and persons who might reasonably be expected to reside with them had left a huge area of discretion to the planning authority which violated the provisions of Article 15. 1. 

[*74] In the light of the applicable legal principles to which reference has already been made, the court is unable to accept that proposition. The general policy of the Act is clear: it is that what is called “affordable housing” should be made available under the machinery provided in Part V to persons defined as “eligible persons”. Subsection (3)(b) does no more than allow the planning authority to take into account other financial circumstances of particular persons who might come within the category of “eligible persons” and the Oireachtas, in the view of the court, was fully entitled, having laid down the general policy of the Bill in this context, to allow additional matters relating to particular applicants to be dealt with at the discretion of the planning authorities.

The court is satisfied that it has not been established that the provisions of Part V of the Bill are repugnant having regard to Article 15.1 of the Constitution.

Decision

The decision of the court is, for the reasons stated, that none of the provisions of Part V of the Bill are repugnant to the Constitution.

The President will be so informed.

[*75] 		I certify this to be the judgment and decision of the Supreme Court pronounced on the 28th day of August 2000.

APPENDIX

SECTION 96 OF THE BILL

96.‑(1) Subject to subsection (14) and section 97, where a development plan objective requires that a specified percentage of any land zoned solely for residential use, or for a mixture of residential and other uses, be made available for housing referred to in section 94(4)(a), the provisions of this section shall apply to an application for permission for the development of houses, or where an application relates to a mixture of developments, to that part of the application which relates to the development of houses, in addition to the provisions of section 34.

(2) A planning authority, or the Board on appeal, may require as a condition of a grant of permission that the applicant, or any other person with an interest in the land to which the application relates, enter into an agreement with the planning authority, concerning the development for housing of land to which a specific objective applies in accordance with section 95(1)(b).
		
			(3) (a) An agreement under this section may provide for-
(i) 	the transfer to the planning authority of the ownership of the land required by the agreement to be reserved for the provision of housing referred to in section 94(4)(a),
	(ii) 	instead of the transfer of land referred to in subparagraph (i), the building and transfer, on completion, to the planning authority, or to persons nominated by the authority in accordance with this Part, of houses of such number and description as may be specified in the agreement at a price determined on the basis of-
							
						(I) 	the site cost of the houses being calculated as if it was equal to the cost of land transferred to the authority under subparagraph (i), and

(II)	the building and attributable development costs as agreed between the authority and the developer, including profit on the costs,
or

		(iii)	instead of the transfer of land referred to in subparagraph (i), the transfer of such number of fully or partially serviced sites as the agreement may specify to the planning authority, or to persons nominated by the authority in accordance with this Part, at a price determined on the basis of‑		

		(I)	the site cost of the sites being calculated as if it was equal to the cost of land transferred to the authority under subparagraph (i), and

	(II) 	the attributable development costs as agreed between the authority and the developer, including profit on the costs.
	
	(b) Where an agreement provides for the transfer of land, houses or sites in accordance, with paragraph (a), the houses or sites or the land, whether in one or more parts, shall be identified in the agreement		

	(c) 	In so far as it is known at the time of the agreement, the planning authority shall indicate to the applicant its intention in relation to the provision of housing, including a description of the proposed houses, on the land or sites to be transferred in accordance with paragraph (a)(i) or (iii).

(d) 	Nothing in this subsection shall be construed as requiring the applicant or other person to enter into an agreement to transfer houses or sites in accordance with subparagraphs (ii) or (iii) of paragraph (a) instead of transferring land in accordance with subparagraph (i) of that paragraph.

(e)	For the purposes of an agreement under paragraph (a), the planning authority shall have regard to‑

(i) 		the proper planning and sustainable development of the area to which the application relates,

(ii)	the housing strategy and the specific objectives of the development plan which relate to the implementation of the strategy,

(iii)	the need to ensure the overall coherence of the development to which the application relates, and

(iv)	the views of the applicant in relation to the impact of the agreement on the development.

(f) 	Government guidelines on public procurement shall not apply to an agreement made under paragraph (a)(ii) or (iii), except in the case of an agreement which is subject to the requirements of Council Directive No. 93/37/EEC(1) on the co‑ordination of procedures relating

(1)0.J. No. L 199/54, 9.7.1993

to the award of Public Works Contracts and any Directive amending or replacing that directive.

(4) An applicant for permission shall. when making an application to which this section applies, specify the manner in which he or she would propose to comply with a condition to which subsection (2) relates, were the planning authority to attach such a condition to any permission granted on foot of such application, and where the planning authority grants permission to the applicant subject to any such condition it shall have regard to any proposals so specified.

(5) In the case of a dispute in relation to any matter which may be the subject of an agreement under this section, other than‑

	(a) a dispute in relation to an agreement under subsection (3)(a)(ii) or (iii),
(b) a dispute as to the amount of compensation payable under subsection (6), or
		(c) a	 dispute as to the sum payable to a planning authority under subsection (12),
	
the matter may be referred by the planning authority or any other prospective party to the agreement to the Board for determination.
	
(6) Where ownership of land is transferred to a planning authority pursuant to subsection (3)(a)(i), the planning authority shall, by way 	of compensation, pay to the owner of the land a sum equal to-
	(a) (i) in the case of
	(I)	land purchased by the applicant before 25 August 1999, or
	(II) land purchased by the applicant pursuant to a legally enforceable agreement entered into before that date or in exercise of an option in writing to purchase the land granted or acquired before that date, 

the price paid for the land, or the price agreed to be paid for the land pursuant to the agreement or option, together with such sum in respect of interest thereon (including, in circumstances where there is a mortgage on the land, interest paid in respect of the mortgage) as may be determined by the property arbitrator,

(ii) in the case of land the ownership of which was acquired by the applicant by way of a gift or inheritance taken (within the meaning of the Capital Acquisitions Tax Act, 1976) before 25 August 1999, a sum equal to the market value of the land on the valuation date (within the meaning of that Act) estimated in accordance with section 15 of that Act,
 
(iii) in the case of‑

(I) 		land purchased before 25 August 1999, or

(II)	land purchased pursuant to a legally enforceable agreement to purchase the land entered into before that date, or in exercise of an option, in writing, to purchase the land granted or acquired before that date,

(where the applicant for permission is a mortgagee in possession of the land) the price paid for the land, or the price agreed to be paid for the land pursuant to the agreement or option, together with such sum in respect of interest thereon calculated from that date (including any interest accruing and not paid in respect of the mortgage) as may be determined by the property arbitrator,	

or

(b) the value of the land calculated by reference to its existing use on the date of the transfer of ownership of the land to the planning authority concerned on the basis that on that date it would have been, and would thereafter have continued to be, unlawful to carry out any development in relation to that land other than exempted development,

whichever is the greater.

(7) (a) Subject to paragraph (b), a property arbitrator appointed under section 2 of the Property Values (Arbitration and Appeals) Act, 1960, shall (in accordance with the Acquisition of Land (Assessment of Compensation) Act, 1919), in default of agreement, fix the following where appropriate:	

(i) 	the number and price of houses to be transferred under subsection (3)(a)(ii);

(ii) 	the number and price of sites to be transferred under subsection (3)(a)(iii);

(iii) 	the compensation payable under subsection (6) by a planning authority to the owner of land;

(iv) 	the sum payable to a planning authority under subsection (12); and

(v) 	the allowance to be made under section 99(3)(d)(i).

(b)	For the purposes of paragraph (a), section 2(2) of the Acquisition of Land (Assessment of Compensation) Act, 1919, shall not apply and the value of the land shall be calculated on the assumption that it was at that time and would remain unlawful to carry out any development in relation to the land other than exempted development. 

(c) 	Section 187 shall apply to compensation payable under subsection (6).

(8) 	Where it is a condition of the grant of permission that an agreement be entered into in accordance with subsection (2) and, because of a dispute in respect of any matter relating to the terms of such an agreement, the agreement is not entered into before the expiration of 8 weeks from the date of the grant of permission, the applicant or any other person with an interest in the land to which the application relates may‑
 
(a) 	refer to the Board any dispute to which subsection (5) applies. or
	
(b)	refer to the property arbitrator-
(i)	any dispute to which subsection (3)(a)(ii) or (iii) relates,

(ii)	any dispute as to the amount of compensation payable under subsection (6), or

(iii)	any dispute as to the sum payable to a planning authority under subsection (12),

	and the Board or the property arbitrator, as may be appropriate, shall determine the matter as soon as practicable.

(9) 	(a) Where ownership of land or sites is transferred to a planning authority in accordance with subsection (3)(a)(i) or (iii), the authority may‑

(i)	provide, or arrange for the provision of, houses on the land or sites for persons referred to in section 94(4)(a),

(ii) 	make land or sites available to those persons for the development of houses by them for their own occupation, or

(iii) 	make land or sites available to a body approved for the purposes of section 6 of the Housing (Miscellaneous Provisions) Act, 1992, for the provision of houses on the land for persons referred to in section 94(4)(a).
	
(b) 	Pending the provision of houses or sites in accordance with paragraph (a)(i), or the making available of land or sites in accordance with paragraph (a)(ii) or (iii), the planning authority shall maintain the land or sites in a manner which does not detract, and is not likely to detract, to a material degree from the amenity, character or appearance of land or houses in the neighbourhood of the land or sites.

(10) (a) 	Where a house is transferred to a planning authority or its nominees under subsection (3)(a)(ii), it shall be used for the housing of persons to whom section 94(4)(a) applies.

(b) 	A nominee of a planning authority may be a person referred to in section 94(4)(a) or a body approved for 	the purposes of section 6 of the Housing (Miscellaneous Provisions) Act, 1992, for the provision of housing for persons referred to in section 94(4)(a).

(11) 	Notwithstanding any provision of this or any other enactment, if a planning authority becomes satisfied that land, a site or a house transferred to it under subsection (3) is no longer required for 	the purposes specified in subsection (9) or (10), it may use the land, site or house for another purpose connected with its functions or sell it for the best price reasonably obtainable and, in either case, it shall pay an amount equal to the market value of the land, site or house or the proceeds of the sale, as the case may be, into the separate account referred to in subsection (13).

(12) (a) Where for reasons of the size, shape or other attribute of the site, the planning authority, or the Board on appeal, considers that an agreement under subsection (3) is not practical, the planning authority, or the Board on appeal, may as a condition of a grant of permission in accordance with section 34 require the payment to the planning authority of an amount equivalent in value to a transfer of land to the authority under paragraph (a) of subsection (3).

(b) The condition specified in paragraph (a) shall provide that the sum shall be agreed between the planning authority and the person to whom the permission is granted and that in default of agreement the sum shall be fixed by a property arbitrator in accordance with subsection (7).

(13) Any amount referred to in subsection (11) and any amount paid to a planning authority in accordance with subsection (12) shall be accounted for in a separate account and shall only be applied as capital for its functions under this Part or by a housing authority for its functions in relation to the provision of housing under the Housing Acts, 1966 to 1998.
(14)	This section shall not apply to apply to applications for permission for‑						
(a) development consisting of the provision of houses by a body standing approved for the purposes of section 6 of the Housing (Miscellaneous Provisions) Act 1992, for the provision of housing for persons referred to in section 9(2) of the Housing Act, 1988, where such houses are to be made available for letting only.
		
(b) 	the conversion of an existing building or the reconstruction of a building to create one or more dwellings, provided that 50 per cent or more of the existing external fabric of the building is retained, or		
(c) the carrying out of works to an existing house.

(15) 	A permission granted under Part IV of the Act of 1963 or under Part III of this Act pursuant to an application made after 25 August 1999 and to which this Part would have applied if the application for permission had been made after the inclusion of a housing  strategy in the development plan under section 94(1), shall cease to have effect on 31 December 2002 or on the expiry of a period of 2 years from the date of the grant of permission whichever is the later, as regards‑

(a) 	where the development to which the permission relates is not commenced by that date or the expiry of that period, the entire development, and

(b) where the development to which the permission relates is commenced by that date or the expiry of that period, any portion of the development consisting of buildings the external walls of which have not been completed, but without prejudice to the obligation on the person carrying out the development to fulfil the other requirements of
	the permission in relation to so 	much of the development as is not affected by this paragraph.

(16) In this section, “owner” means‑

(a) a person, other than a mortgagee not in possession, who is for the time being entitled to dispose (whether in possession or reversion) of the fee simple of the land, and

(b) 	a person who, under a lease or agreement the unexpired term of which exceeds 5 years, holds or is entitled to the rents or profits of the land.