Runner-Up of The Eagle and Trinity College Law Review 'Home and Housing' Essay Competition 2023 Article 40.3 and Compulsory Acquisition Orders

by Aoife Doheny, SF Law

Introduction

While land and property have undeniable economic value, they have a further, perhaps more important, dimension to our lives Property provides security, familiarity and shelter which is indispensable for our development as persons Most obviously, this can be seen in the relationship we have with our homes This essay will argue that the Irish Constitution, in separating Articles 40.3 and 43, recognises this kind of relationship between people and property, as opposed to viewing housing as a purely economic commodity. Furthermore, it argues that Article 40.3, if isolated in a meaningful way, can create a new lens through which homes and a right to housing can be viewed

To illustrate this fully, the first section of this essay outlines the case law surrounding the relationship between Articles 40.3 and 43. It will surmise that most of the discussion so far has been focused on the standards of review of property rights, namely whether “the exigencies of the common good” and “the requirements of social justice” prevent State action from amounting to an “unjust attack” on property rights. It will propose that, following older case law, the articles are protecting two fundamentally different things, and that therefore the mixing of the standards of review by the courts can be misleading It will briefly discuss the role Article 40.5 could play here, given its increasing prominence in the protection of homes.

The second section of this essay will outline Margaret Radin’s theory of property, in particular the spectrum of personal to fungible property outlined in her paper ‘Property and Personhood.’¹ It is proposed that this spectrum could be a valuable tool for assessing the strength of relevant property rights at play; at the very least, it demonstrates that there can be legal recognition of the non-economic value that property gives us. Using the personhood theory, I will attempt to evaluate an area of Irish property law where there is significant interaction between public authorities and individuals: compulsory purchase orders.

A new light on Articles 40.3 and 40.5 ion of private property as an institution, but at the same time permits, in particular circumstances, the regulation of the exercise of that right "⁶

This section will attempt to show that Article 40.3 should be isolated on the basis that it protects personal property, of which homes are paradigmatic This is not to suggest that certain property rights are absolute, or that Article 40.3 offers an unenumerated right to housing. Here, we are merely focusing on the actual rights protected by these articles.

Article 40.3.2°

The Courts have held that Articles 40.3.2°, 40.5 and 43 all mutually inform each other.² The exact nature of their relationship, however, continues to be explored. Following a complete lack of private property protections in the 1922 Free State Constitution, the drafters of Bunreacht na hÉireann dedicated two provisions to it As a consequence, much of the case law around property rights has considered the interaction between Articles 40.3 and 43 at length. Following early distinctions, it is now agreed that Article 43.2’s qualifications of “the principles of social justice” and “exigencies of the common good” can be used to inform the Court’s decision on whether the State has unjustly attacked property rights under 40 3 ³

This was not clear from the outset, however In Blake v Attorney General,⁴ the Supreme Court endorsed Davitt P’s High Court decision in Southern Industrial Trust v Attorney General.⁵ This meant that, as a consequence of the ruling in Blake, Article 40.3.2° had a protective function distinct from Article 43: "Article 43 is headed by the words ‘Private Property’… It is an Article which prohibits the abolit-

Meanwhile, Article 40.3.2° protects the personal right of the citizen to property, and therefore has a higher standard of protection, since “the State is bound, in its laws, to respect and as far as practicable to defend an vindicate the personal rights of citizens.”⁷ However, this distinction was not maintained In Dreher v Irish Land Commission, ⁸ it was held that a State action which is allowed under Article 43° cannot be contrary to Article 40 3° Somewhat confusingly, O’Callaghan v Commissioner for Public Works ruled that where State action amounts to an unjust attack, no other provision of the Constitution can be invoked to make that attack just,⁹ including the principles of social justice and exigencies of the common good stated in Article 43°. This case still emphasised the close, mutually informative nature of the two articles, and its approach was followed in ESB v Gormley,¹⁰ Pine Valley Developments Ltd v Minister for the Environment, ¹¹ and Lawlor v Minister for Agriculture ¹² In these cases, delimitations of the common good and social justice were imported to clarify the meaning of ‘unjust attack’ on personal rights.

Ultimately, Re Article 26 and Part V of the Planning and Development Bill 1999 resolves the conflicts between Blake and Dreher in favour of the Dreher interpretation,¹³ with the Supreme Court “clearly advocat[ing] a holistic reading of the two private property provisions "¹⁴ The conflation of these two articles has made the question of what amounts to an “unjust attack” identical to the question of what falls outside the scope of the common good and social justice. In J & J Haire and Company Ltd v Minister for Health, ¹⁵ McMahon J enumerated several ways in which an interference with property rights could be ‘unjust’ under Article 40 3 2°, including “[a] lack of fair procedures, unreasonableness and irrationality, discrimination, lack of proportionality and, in some cases, lack of compensation ” The overarching principle seems to be (1) that an attack on property rights is unjust where it does not further the common good or social justice, and (2) that it does not further the common good or social justice where measures are arbitrary, selective or discriminatory.

Homes already receive special protection in the Constitution due to the fact that, in line with Article 40.5, they cannot be “forcibly entered, save in accordance with law.” Recently, the courts have invoked Article 40.5’s ‘inviolability of the dwelling’ provision to a greater extent, and in the case Clare County Council v McDonagh, the Supreme Court held that it was the corresponding domestic provision to the ECHR’s Article 8 protection of the ‘home.’¹⁶ McDonagh is an interesting case because it demonstrates the weight given to homes in proportionality tests A Traveller family successfully argued that the county council failed to apply the proportionality principle before evicting their caravans from public grounds. The test is to be applied in all cases concerning ‘homes’, held here to be simply a place of residence. But as a procedural article, Article 40.5 is silent on substantive principles: the forcible entry must simply be in accordance with law, not, say, in the “exigencies of the common good” Any evaluation of the law itself must therefore be examined under a different article

Shifting the discussion increased protection for homes?

What seems to be absent from these discussions of ‘unjust attacks’ is the nature of the property itself, and the individual owner’s relationship with it. Article 40.3 is titled ‘Personal Rights’. It is situated among three other rights: life, liberty and a good name, all of which are fundamental to our personal and social development None of these other three, important as they are, have a further provision underlining their natural right status and delimitations. But by containing two property protection provisions, it is submitted here that the Constitution creates a distinction between protecting property which is truly personal to us (such as our homes)¹⁷ and protecting our capitalist system.

In her influential paper ‘Property and Personhood’, Radin suggests that: “[t]he premise underlying the personhood perspective [of property] is that to achieve proper self-development to be a person—an individual needs some control over resources in the external environment.”¹⁸ The paper goes on to state that "[o]ne may gauge the strength or significance of someone’s relationship with an object by the kind of pain that would be occasioned by its loss On this view, an object is closely related to one's personhood if its loss causes pain that cannot be relieved by the object's replacement. If so, that particular object is bound up with the holder."¹⁹

It follows that, the protection afforded to particular property rights should be assessed according to their position on the scale of fungible (i.e. replaceable) to personal in our lives Radin argues that state interference with the personal kind of property should be subject to stricter scrutiny by the courts A paradigmatic example of this would be home ownership. The importance of homes can be most clearly illustrated in the conversations around homelessness, where it is recognised that those without a secure place to live suffer from more than just a lack of shelter. A home roots our place in society and offers dignity, security and protection. The involuntary deprivation of this can have huge physical and psychological tolls

From the survey of case law, however, it is not altogether clear that the Irish courts have reviewed property rights along the lines of personal/fungible. The meaning of common good or social justice remains murky and vague, and the nature of the person-property connection is not really elaborated on beyond its status as a ‘natural right.’ This leaves open the risk that the allocation of property will come to take on a purely utilitarian sheen, or that the property’s economic value becomes the sole or primary consideration ²⁰ Taking a ‘personhood’ perspective of property provides us with a “moral basis” for choosing certain property rights to be more strongly protected than others.²¹ Article 40.3 could be an article which provides space for recognition of the fact that land and housing provide far more than purely economic value to us. In other words, it could implement Radin’s personhood theory into our constitutional law The “principles of social justice” and “exigencies of the common good” still play a significant role in regulating our private property system Any exceptions to these vitally important considerations should be more protective of the personal rather than the commercial sphere. This ensures that higher protections of the individual do not unduly interfere with efforts to create the most fair and just state possible.

Compulsory acquisition orders allow public authorities to acquire private land without the consent of the owner. They make up a complex area of law, governed by over seventy pieces of legislation, the oldest of which dates back to 1845.²² They are often crucial to the building of important public infrastructure,²³ or protection of historic monuments.²⁴ They are also infringements on the property rights of individuals, so it is recognised that mitigatory measures may be required to make the breach less drastic This section will briefly consider the roles of compensation and provision of specific reasons, and will argue that our current law fails to live up to the personhood protection of private property through under-development of these mitigatory measures.

Compensation is technically not mandatory in Ireland when property is compulsorily acquired (other constitutions, such as the Lebanese and Greek ones, have put compensation on a constitutional footing).²⁵ However, in practice, compensation at full market value is usually the starting point, with reductions needing further justification.²⁶ Given recognition of the fact that compensation cannot truly replace a unique good like land (both judicially²⁷ and in popular culture),²⁸ it can be a poor substitute which does not truly reflect the value which has come to be attached to the property

In Hendron v Dublin Corporation,²⁹ the High Court held that a local body looking to acquire land would require a “solid reason and not a pious hope or a mere pretext” for seizing it.³⁰ As the LRC has noted, “[t]his case from 1943 reflects an approach that does not appear to be the position of the more modern judiciary.” A public authority is not required to give specific reasons for the acquisition of land.³¹ In other common law jurisdictions, notably the US, vague reasons like ‘economic development’ have been considered sufficient in cases where the state has acquired private land from one individual to give to another.³² While this question has not yet been considered by the Irish courts,, a strong deferential approach to the legislature on the meaning of the common good and social justice may see the same stance adopted here.³³ In their paper, Compulsory

Acquisition of Land, ³⁴ the Law Reform Commission suggested that for homes, An Bord Pleanála should be required to give detailed reasons for the compulsory acquisition of homes (see Issue 2 of the paper) ³⁵ The property for personhood view ascribes a powerful importance to the home which should require concrete reasons to dislodge.³⁶ A CPO-stricken homeowner is entitled to know the State’s exact proposed use of their land, and should be able to see the benefits of acquisition realised. This involves the citizen more in the community and provides greater transparency.

This essay has argued that Article 40.3 has the scope to provide a more ‘personhood’ view of property which limits or reformulates the role of social justice, in order to bring about higher protections for homes, particularly in contexts such as compulsory purchase orders This would lead to increased legal recognition of the fact that homes, and property in general, provide far more than just economic benefits

Margaret Jane Radin, ‘Property and Personhood’ (1982) 34(5) Stanford Law

Review 957

Reid v Industrial Development Agency [2015] IESC 82 [43]

Re Article 26 and the Employment Equality Bill 1996 [1997] IESC 6

[1982] IR 117 (SC)

Attorney General v Southern Industrial Trust (1957) 94 ILTR 161, 168

Blake v Attorney General [1982] IR 117 (IESC), original emphasis ibid, my emphasis

[1984] ILRM 94 (SC)

[1985] ILRM 364 (SC)

[1985] IR 129 (SC)

[1987] IR 23 (SC)

(1990) 1 IR 356 (HC)

[2000] IESC 20, (2000) 2 IR 321

Hogan and others, Kelly: the Irish Constitution (5th ed, Bloomsbury Professional 2018) [7 8 65]

[2009] IEHC 562 (17 December 2009)

[2022] IESC 2, (2022) 1 ILRM 353

Marx and Engels recognised this type of distinction in Karl Marx and Friedrich Engels, The Communist Manifesto (Penguin Books, 1979) 96

Radin, ‘Property and Personhood’ (n 1) 957 ibid 959

Rachael Walsh, ‘The Principles of Social Justice The Compulsory Acquisition of Private Property for Redevelopment in the United States and Ireland’ (2010) 32

DULJ 1, 19-20

Radin, ‘Property and Personhood’ (n 1) 959

Law Reform Commission, Issues Papers: Compulsory Acquisition of Land (LRC IP 13 2017) [2 02]

Crosbie v Custom House Dock Development Authority (1996) 2 IR 531

O’Callaghan v Commissioners of Public Works [1985] ILRM 364

Dreher v The Irish Land Commission [1984] ILRM 94; Central Dublin Development Association v Attorney General (SC) (1975) 109 ILTR 69, 86 Reid v Industrial Development Agency (n 2)

Crosbie v Custom House Dock (n 23)

Plenty of books and movies centre around stories of people with strong connections to land, including the 1997 Australian comedy film The Castle [1943] IR 566

Ibid, 573

Clinton v An Bord Pleanála [2007] 4 IR 701

Kelo v City of New London 545 US 469 (2005)

Central Dublin Development Authority; Crosbie v Custom House Dock Development Authority [1996] 2 IR 531

Law Reform Commission, Issues Papers: Compulsory Acquisition of Land (LRC IP 13 2017)

Ibid, [2 07], [10 16]

Compulsory acquisition of shares is not allowed under Irish law, but compulsory acquisition of homes is legally sound