6 - Contesting Property Rights

Summary

[T]he days of laissez-faire are at an end.

– Judge Hanna, 1939

At the end of the day the Supreme Court will take the holy document of our Constitution and say that notwithstanding that clause which talks about the exigencies of the common good and all the lovely, flowery Articles that talk about the rights of people, notwithstanding that remarkable Preamble that proclaims us to be a Christian nation, when the chips are down, we have no choice because ‘private property rights rule OK’.

– Ruairí Quinn, Labour TD, 1982

In 1983, Ronan Keane introduced his analysis of ‘land use, compensation and the community’ with the example of the property speculator who buys a farm of 100 acres close to a city, paying the prevailing price for agricultural land (£2,500 an acre) or £250,000. Subsequently, the planning authority alters the agricultural zoning of the farm to residential and extends water and sewerage services to the area, costing the public some £1.5 million. The speculator applies for and is granted planning permission before quickly selling the land to a building consortium for £5 million. When the revenue commissioners try to recover some of the profit (approximately £4.5 million) in capital gains tax, they find themselves ‘defeated by a maze of interlocking overseas trusts and companies situated in various sunny tax havens’ and left to recover some of the public's investment by attaching to the permission a condition requiring the developer to contribute to the cost of the services. Sixty years after Clement France argued for a constitutional provision to capture it, the ‘unearned increment’ continued to prove elusive.

The development of property rights contestations in Ireland – those highly specific instances where participants in a conflict had recourse to the 1937 Constitution's property provisions – cannot be understood in isolation from Ireland's semi-peripheral political economy. Systemic advantages, such as those France highlighted, accrued to propertied (specifically land-owning) and banking interests. The Irish Free State broadly reproduced classic, laissez-faire ground rules while successive governments intervened in the market for land and housing through the Irish Land Commission, the provision of social housing, as well as various taxation and rent restriction measures.