producing norms.11 According to the European Convention of Human Rights
and the principles of the administrative law in Australia, among others,
interference with property rights must be proportional. That is to say, there
must be a reasonable relationship of proportionality between the means
employed and the aim sought to be realized. It is seen as a limit for the
activity of public powers with regards to the protections of human rights,
and as a measure of control of the exercise of discretionary powers.12 There
must be a strong objective justification for the law and its application, this is,
a pressing social need for the interference. To evaluate this need the principle
of proportionality comes into action.13 For instance, the rightful owners
cannot suffer disproportionate damage because of public interest, especially
if the measure will bring significant benefits to the community.14
Rationality
Public authorities have the power to choose between different alternatives.
The key is that they must offer an explanation as to why they chose one and
not the other.15 It is only through choosing among possible outcomes that the
policy maker exercises judgment. The logic of, and reasons for, the choices
made are important to an assessment by others of ‘essential fairness’ of the
decision.
Alternatives must be explored in good faith with equal degrees of detail and
analytic rigor. Similarly, identification of consequences for each alternative.
The rationale for the alternative chosen must be lucid and tenable, with a
clear record of the chain of reasoning behind the choice. At no point in the
administrative process is the concern for restraint of arbitrary power more
significant than in connection with land use plans, planning and regulation.
Fairness/Equality
The process of the decision-making should be fair. This is a central
requirement of any form of justice, administrative or otherwise. Fairness, and
in particular procedural fairness, is not an optional moral extra. Where broad
administrative discretions are concerned, common ideas of fairness, beyond
procedural fairness, involve consistency in decision-making, that is to say that
11 José Ignacio López González, “The principle of proportionality in Administrative Law (El principio de
proporcionalidad en Derecho Administrativo).”
12 Ibid.
13 Council of Europe, “The Margin of Appreciation.”
14 Almudena Fernández Carballal, “Urban qualification and rationality: Concerning the Sports City of
Real Madrid Football Club (Calificación urbanística y racionalidad. A propósito de la nueva Ciudad
Deportiva del Real Madrid, Club de Fútbol).”
15 Ibid.
11
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