Mick Clifford: Why successive governments put landowners ahead of the common good

For decades, governments enriched landowners through rezoning while failing to deliver a fair, functioning planning system

Justice minister Jim O'Callaghan. The response of the current administration to the housing crisis has a whiff of desperation about it.

Crises can make people crazy. The housing crisis can make a collective government crazy, or so it appears from the recent musings emerging from its core.

Last Sunday, at an event to commemorate the IRA leader Liam Lynch, Jim O’Callaghan threw in his tuppence worth to further the aims of a republic. He wants to place the common good and public interest ahead of any special interests in the area of housing.

“I have asked my department to bring forward proposals to rebalance the judicial review procedure to ensure that the common good and public interest are at the centre of any judicial review process, in particular when examining vital infrastructure and housing projects,” he told reporters.

Judicial reviews taken by parties or persons who harbour objections are a contentious element of the planning process. They involve taking planning from planners and handing it to judges. The process is financially taxing, in money terms, and particularly in delays. Now, the minister for justice wants to reform this, inferring, that it interferes in the delivery of housing and infrastructure.

The first thing to note is that there is a nimby culture in this State, which has been long supported by politicians of all parties. This needs to change, but suggesting that the judicial review process has anything to do with this is either lazy or cynical.

The second thing to jump out is that the body politic went through a mammoth planning bill last year that ran to more than 1,000 pages. One of the contentious elements to it was new provisions to narrow the scope for judicial reviews. The bill was passed into law before the dissolution of the Dáil last November.

How has this become a problem so soon after it was already addressed? Or is the justice minister engaging in little more than optics, purporting to stand firm with the common good?

In reality, the proliferation of judicial reviews in recent years have, to the greatest extent, been down to government policy that has been shown to be nothing short of stupid. In 2017, on foot of lobbying from property interests, the government introduced a process called Strategic Housing Developments. In this, any development in excess of 100 housing units would no longer have to apply for planning to a local authority, but go directly to the appeal body, An Bord Pleanála, now An Coimisiún Pleanála.

This led to major legal issues, which in turn generated a huge leap in judicial reviews. The SHD system was abandoned in 2022, and the volume of judicial reviews has been declining since. Yet now, we are being told this is a big problem, as if it wasn’t created by a previous government.

The most galling element of Mr O’Callaghan’s declaration is that he is purporting, as a minister and Fianna Fáil politician, to further the aims of the common good in relation to housing. 

Land rezoning

This is a departure, but one that tells plenty about how that party and its political soul sister Fine Gael have overseen housing for more than half a century

During that period both parties have consistently striven to ensure that the special interests of landowners receive precedence over the common good. The rezoning of land for residential use, ostensibly done in the name of the common good, has always benefited the landowner at the cost of the public.

Rezoned land leaps in value overnight, turning muck into gold. By the stroke of a pen, the value can and has gone up by anything from 100% to 1,000% and more. Yet successive governments have studiously ensured that landowners reap the rewards, while prospective homebuyers foot the bill through increased land values.

This was recognised by High Court judge John Kenny in a report to cabinet in 1973. He made the sensible proposal that a system should be implemented to value rezoned land at agricultural prices plus 25%, rendering a tidy profit, but no more.

The cabinet rejected it, telling the judge that they know more about the law than he and the proposal would be unconstitutional. It was nearly thirty years before an Oireachtas committee in 2002, on foot of expert legal advice, determined that there was no constitutional issue around Kenny’s proposal. Still, the main parties didn’t want to upset landowners getting rich on the backs of homebuyers.

In 2010, when the Greens had Fianna Fáil over a barrel, an 80% windfall tax was introduced at the smaller party’s insistence on rezoned land. Two years later, the Planning or Mahon Tribunal reported after fifteen years looking at the corruption inherent in the prevailing system of rezoning.

The report, Eamon Gilmore told the Dáil, “is a chronicle of betrayal, ignominy and disgrace for the individuals it names and condemns, for the system of planning in Dublin that was foully corrupted". 

How could it not have been corrupted with so much money to be made by whomever could get a slice of the enormous pie being given away by the State to special interests?

In 2015, the Fine Gael/Labour government reversed the Green’s windfall tax. Special interests, particularly those plugged in the political system, would be restored to their place where they could prosper hugely on the back of the common good.

Following the general election in 2020, it was decided lip service must be given to this issue. A commitment was made in the programme of government to examine “how community gain can be captured through…rezoning systems.”

The Land Rezoning Value Sharing bill, proposing a 30% tax on the uplift on rezoned land, was finally published last September, and fell with the dissolution of the Dáil two months later. According to a spokesperson for the department of housing, the government has “committed to continue to implement” the measure for which the bill was drafted. There is no timeline yet, and good luck to you if you’re holding your breath awaiting one.

That is the history of successive governments ensuring that, in the area of housing, special interests are enriched at the expense of the common good in general and homebuyers in particular

Now we are being told that the current Government wants to stand up for the common good against a different kind of special interest — those who object to developments. Why isn’t the focus instead on creating a properly resourced, fully functioning planning system that would minimise all kinds of reasonable objections?

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The response of the current administration to the housing crisis has about it a whiff of desperation. They appear to be reduced to sound bites while the social contract continues to fray, while a gaping intergenerational inequality continues to widen. Still, the very least they could do is refrain from purporting to stand up for the common good, or public interest, when one element of the current crisis is directly attributable to a long record of governments doing exactly the opposite.