Discriminatory Planning Conditions – The case for reform

A report by the Law Society’s Reform Committee

A summary document

Introduction

Increasingly grants of planning permission for dwellings in rural areas both in villages and the open countryside, have attached conditions that specify a particular class or description of persons that may occupy a structure. Such conditions in effect identify those persons with roots or links in areas under pressure and confer to them the right to occupy a dwelling, in the interests of “sustainable rural communities”.

In the pursuit of augmenting the “quality, fairness and effectiveness” of selected areas of Irish legislation, the Law Society, Law Reform Committee have produced a probing and rich analysis of the legal issues surrounding the imposition of such conditions by County Councils and An Bord Pleanála. With specific reference to the implications of the report for the Board, it would appear that doubt has been cast as to whether all of the occupancy conditions currently utilised would have a substantive and firm basis against the backdrop of, Irish legislation, the Constitution, the European Convention on Human Rights and the European Convention on Human Rights Act 2003. Thus the document can be described as propelling the “what if” scenarios of legal challenges into the realm of not only An Bord Pleanála but much of the planning system in Ireland. The legality of certain occupancy conditions and the vague manner in which conditions tend to be phrased are central issues investigated by the report. The report is divided into a number of key categories for the purposes of summarisation.

The legislative basis for occupancy conditions

The first mechanism is the inclusion in the development plan of objectives that the conditions can serve. The types of conditions that can be specified are listed in section 34(4) of the Planning and Development Act 2000. However a second mechanism is through section 39(2) that allows for a grant of permission subject to a condition that the use of the dwelling be restricted to use by persons of a particular class or description and that provision to that effect shall be embodied in an agreement under section 47 which is a statutory attachment to the land. It appears that a condition would be invalid if it purported to restrict the classes of persons but did not require a section 47 agreement.

Conditions utilised by planning authorities

Based on an examination of development plans the report identifies six grounds of distinction between “privileged” and “non-privileged persons”. Privileged persons are defined as those that are approved for planning permission or for occupancy subject to planning conditions. Those that are non-privileged cannot obtain permission or take up occupancy, as they do not belong to a class or description where the conditions can be applied. The type of such distinctions (and thus conditions and grants of permission) will be a refection of local circumstances and pressures as embodied in the development plan. The following are the identified grounds of distinction:

  • Local residents and non-local residents: a local residency condition;
  • Local employees and non-local employees: a local employment condition;
  • Agricultural workers and non agricultural workers; an agricultural worker condition;
  • Relatives of local residents and non-relatives of local residents: a bloodline condition;
  • People who once were local residents but left and now wish to return; a returning emigrant condition.

Evaluation of conditions against Irish and European Legislation

(i) The Irish Constitution

With reference to the constitution the central issues of the report revolve around whether or not the conditions outlined above interfere with private property rights and the equal treatment of citizens as protected by the Irish Constitution. While the restriction of property rights may be required for reasons of the common good, the question that the report poses is whether a differential restriction of property rights has occurred. The focus is on the constitutional protection of equality. In Brennan V Attorney General, Barrington established a test stating that legislative classifications must be made for a legitimate purpose, they must be relevant to that purpose, and each class must be treated fairly. Recent case law suggests that the legislative measure may have to be more closely tailored to achieving that purpose rather than being merely legitimate. It is also noted that the amendment to the constitution on citizenship means that it cannot be safely said that the constitution prohibits discrimination on the grounds of pedigree.

It is argued that local residency conditions need not be subjected to a heightened standard of review as they meet the standard set down by Brennan. That is, they have a legitimate legislative purpose and therefore little basis for the courts to overturn the legislative assessment, where the rule is not used over large areas of a given county. A similar case is put forward for local employment conditions, returned emigrant conditions and language conditions. Agricultural worker conditions are deemed relevant to the legitimate legislative purpose of ensuring that those who work on the land are able to live on the land. In the case of bloodline conditions it is contended that no substantial government objective is served by allowing people, some of whom may never have lived in the state, to gain priority over other applicants based on their bloodline connection to a local resident. Therefore owing to the constitutional protection of equality, it is proposed that section 39(2) be interpreted in such a way as to prevent the imposition of bloodline conditions.

(ii) The Equal Status Acts 2000-2004

This domestic act prohibits discrimination on nice grounds in connection with the provision of services to which the public has access. It is concerned with discrimination based on nine separate grounds, gender, marital status, family status, sexual orientation, religion, age, disability, race and membership of the travelling community. It is also important to note that race within the act refers to nationality and national origin. A service provided by a public body comes within the meaning of the act. There are however grounds on which discrimination is justified. The Types of discrimination include direct discrimination, discrimination by association and indirect discrimination. Indirect discrimination is the most pertinent to the examination of discriminatory planning conditions as direct discrimination is difficult to establish due to the limited discriminatory grounds set out in the ESA. Indirect discrimination occurs where an apparently neutral provision puts a person at a particular disadvantage compared with other persons. The report states that in theory planning conditions could fall within the definition of “provision”. Therefore it may be possible to establish that the said conditions are in breach of the prohibition on indirect discrimination under the ESA. The determinative factor is whether or not such discrimination could be justified objectively by a legitimate aim and that the means of achieving that aim are appropriate and necessary. Similar to EU law if residency conditions, returning emigrant conditions and bloodline conditions are found to cause indirect discrimination they will be difficult to justify as they prevent those who could contribute to a strong rural population attaining planning permission or occupying a dwelling. Language conditions are deemed justified in light of placing one nationality over another, while the others are not.

(iii) The European Convention on Human Rights and the European Convention on Human Rights Act 2003

Planning authorities and An Bord Pleanála must ensure that the statutory powers are performed in a manner that is compatible with the convention, and national courts are obliged to interpret those statutory provisions in a manner that is compatible with the states obligations under the conventions provisions.

The report highlights the difficulty in predicting the likely approach of national courts to this interpretive obligation when interpreting a provision as widely drafted as section 39(2) of the Planning and Development Act 2000. The primary concern of the Convention in relation to planning conditions concerns the justification for interference with the right to respect for ones home and ones possessions. The test identified requires a pressing social need for interference. The attachment of planning conditions may be both legitimate and pressing, but the way in which the condition is phrased, will determine whether or not it is proportional to the said aim. Therefore the contention is that by drafting certain conditions too narrowly or too broadly the stated legislative aim may be undermined. Returning emigrant conditions for example are narrowly defined to those that have a bloodline connection.

The dangers of bloodline conditions are highlighted in relation to the convention. They are open to challenge as an interference with ones home, and a possible interference with the peaceful enjoyment with ones possessions and a possible deprivation of ones possessions. Such conditions may amount to an extension of rights to a privileged person, amounting to a form of direct discrimination within the convention. They permit a situation where persons who never may have lived in the state are treated favourably. The report therefore emphasises the possibility that they would be ruled by the court as being disproportionate to the legislative aim of preserving rural communities. This is a more direct form of discrimination and a narrower margin of appreciation would be given to planning authorities in carrying out their functions. With reference to language conditions the report recommends that they be narrowly drafted so as not to go beyond what is necessary to achieve the purpose of preserving the national language within a particular functional area. The lack of any element of direct discrimination on agricultural worker conditions means that the court will afford a wide margin of appreciation. The need to take into account the personal circumstances of the proposed occupant is embodied in case law, thereby separating a legislative purpose from the exercise of the provisions intended to achieve that purpose.

(iv) European Union Law

Two aspects of European Union Law are deemed significant in the report, the fundamental freedoms of movement and the Race Directive. The former refers to the freedom of workers, the freedom of establishment of business and the freedom to move ones capital around the EU. The latter refers to the principal of equal treatment between persons irrespective of racial or ethnic origin. The fundamental freedoms are inoperative, unless the case presents some trans-national element, an Irish person is therefore unlikely to be able to rely on the provisions. Case law from Austria brings forward a recurrent analysis in relation to planning conditions. The means adopted to achieve a planning objective must be strictly necessary and proportionate.

By barring certain people from acquiring certain land, planning conditions limit the classes of persons who can acquire interest in property, therefore restricting the free movement of capital. It cannot be disputed that the preservation of the rural population and an economic activity independent of the holiday home sector is in the public interest. Preservation with a clear and unchanging identity would not be in the public interest however. Such an objective necessitates discrimination on the grounds of nationality. The imposition of such conditions tends to impact more harshly on nationals of member states other than Ireland. With reference to bloodline conditions there is no reason to believe that a person must have a bloodline connection or already be resident to contribute to a strong rural population. A similar position can be taken on returning emigrant conditions. A local employment condition alone excludes local residents. It is worthwhile noting that the position taken by the Court of Justice on the term worker is that it also includes those seeking employment. Such a position clearly has implications for the construction of conditions, if the intention is to unequivocally prevent legal challenge. Language conditions are justified and the courts preference to maintain minority languages is also noted. Agricultural worker conditions are also noted as a proportionate and non-discriminatory measure serving the public interest. Similar conclusions are reached under the Race Directive although its scope differs.

Recommendations

This final part of the report is the most significant, drawing together a broad analysis of legislation. While considering the proper planning and sustainable development of an area An Bord Pleanála (and planning authorities should):

  • Never impose bloodline conditions;
  • Never impose a local residency condition independently of a local employment condition;
  • In restricting dwelling use to a class or description of people a condition restricting occupation to local residents and local employees should be used;
  • Impose language conditions but avoid doing so uniformly over large areas;
  • Impose agricultural worker conditions but avoid doing so uniformly over large areas;
  • Use returning emigrant conditions in such a way as to require the applicant to have been resident, in the past, for a considerable length of time in the local area;
  • Consider the personal circumstances of the applicant.

In the formulation of planning conditions the Board (and planning authorities) should:

  • State in local residency and local employment conditions that the required period of residency is one year;
  • Construct local employee conditions so as to include those actively seeking employment and those that are self-employed;
  • Specify that an agreement under section 49 of the Planning and Development Act must be entered into prior to occupancy or development.

A recommendation made under the heading of “..Persons Dealing with Planning Authorities” states that:

  • Solicitors should not accede to a request from a planning authority to certify that a client satisfies or would satisfy a particular discriminatory planning condition as they do not have the relevant expertise or knowledge to do so.

Conclusion

The Law Society’s Reform Committee document on planning conditions is a systematic analysis of the legislative strength of imposing planning conditions. It may be best interpreted as highlighting the potential legal courses of action an applicant may take where they consider that a discriminatory planning condition has been applied by a planning authority. Finally it demonstrates the dangers of using conditions that poorly worded or vaguely phrased.

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