Comparative law on deprivation of property There is broad support in other jurisdictions for an approach based on some concept of proportionality when dealing with deprivation of property, although the context and analytical methodology are not the same as under our Constitution. It is useful to consider approaches followed in other democratic systems before attempting to conclude what “arbitrary” deprivation means under section 25 of our Constitution.
The United States of America The Fifth and Fourteenth Amendments to the Constitution of the United States of America together form the oldest, most well-known constitutional guarantee of property rights:
[. . . ] No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The Fifth Amendment contains two parts. The first may be referred to as the “due process clause” which provides that nobody shall be deprived of property without due process of law. The second is the so-called “takings clause” which provides that private property shall not be taken for public use without just compensation.110 For present purposes the takings clause needs to be considered. It should be noted that the Fifth Amendment refers to a taking and that this term has a different meaning to that of expropriation or of compulsory acquisition as it is generally understood. Van der Walt puts it thus:111
“The crucial feature that sets US takings law apart from the position in most other jurisdictions is the distinction between a ‘taking’ and an expropriation. ‘Taking’ as referred to in the Fifth Amendment, is a wide term that includes the narrower, more widely known category of formal expropriations or compulsory acquisitions in terms of the power of eminent domain, but it also extends to a further category of state actions that have the form of police power regulations of property but in effect amount to takings because they ‘go too far’.”
As Holmes J expressed it in Pennsylvania Coal Co v Mahon 260 US 393 (1922) at 415: “The general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” This conclusion followed from the reasoning that –
“[g]overnment hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. As long recognized some values are enjoyed under an implied limitation and must yield to the police power. But obviously the implied limitation must have its limits or the contract and due process clauses are gone. One fact for consideration in determining such limits is the extent of the diminution. When it reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to sustain the act. So the question depends upon the particular facts. The greatest weight is given to the judgment of the legislature but it always is open to interested parties to contend that the legislature has gone beyond its constitutional power.”112
It has been customary to refer to the regulatory powers of government as the police power and to government’s power of expropriation as the power of eminent domain. While these tags are useful analytical tools, the above passage from Van der Walt (1999) illustrates that the exercise of the police power may in exceptional circumstances constitute a ‘taking’.
( Although the concept of proportionality is seldom used by name when American courts determine the takings issue, the courts do appear to employ some sort of proportionality analysis. This appears from the test laid down by the Supreme Court in Dolan v City of Tigard113to determine whether a city council’s conditions for approving a building permit exacted such dedications of land as to amount to an impermissible uncompensated taking notwithstanding the clear relationship between such conditions and the council’s legitimate government purpose. Rehnquist CJ, who delivered the opinion of the Court, laid down a “rough proportionality” test to decide individual cases:114
“We think the ‘reasonable relationship’ test adopted by a majority of the state courts is closer to the federal constitutional norm than either of those previously discussed. But we do not adopt it as such, partly because the term ‘reasonable relationship’ seems confusingly similar to the term ‘rational basis’ which describes the minimal level of scrutiny under the Equal Protection Clause of the Fourteenth Amendment. We think a term such as ‘rough proportionality’ best encapsulates what we hold to be the requirement of the Fifth Amendment. No precise mathematical calculation is required, but the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.”