Mick Clifford: Can An Bord Pleanála rehabilitate itself as a functioning institution?

Some might have found the presence of Ms Kenny strange, as she has a key role in An Bord Pleanála. The planning appeal board draws its authority as an independent institution from its status as a quasi-judicial body.

Public confidence demands that An Bord Pleanála be seen to be independent and attendance at such a conference might be perceived by some as calling that independence into question.

Surprising comments

However, what really surprised observers were some of the comments she made, which were first published on The Ditch website.

"The current planning system can be misused or exploited by a small minority, a couple of hundred people, to prevent the progression of over 80,000 units,” said Ms Kenny.

Such sentiments would have found favour with her audience but would be highly disputed by some politicians, environmentalists, and communities that have objected to what they consider bad planning.

The code of conduct in An Bord Pleanála states that employees “shall not publish or publicly express personal views or opinions which could reasonably be interpreted as compromising his/her ability to carry out his/her official duties with the board in an impartial manner”.

SHD appeals

That wasn’t the first time Ms Kenny had made such comments to investors. At an event in September 2021, she referenced the very high number of appeals for strategic housing developments (SHD), which was designed as a fast-track planning process for large-scale housing.

“It is unfortunate,” she said of the level of appeals. 

90%, 95% are appealed… people just generally have an issue with new homes being built.

She also gave a tip to developers.

“Take your chances and get the higher densities because the board is very focused on the national policy,” she said.

An Bord Pleanála was asked whether any action had been considered or taken in relation to Ms Kenny’s comments. A spokesperson replied with a single word: “No.”

Interesting timing

Sources in An Bord Pleanála suggest there was “some surprise, to put it at its mildest” about the comments.

Notably, another source said the timing of the comments was interesting.

She wouldn’t have done that four or five years ago. There is no way that the former chairperson of the board would have allowed it

"Serious store is put on public confidence in ABP [An Bord Pleanála] and this sort of thing can impact on it,” they said.

The comments made by Ms Kenny were just one of a whole range of issues that have come to the fore in recent years, giving rise to serious concern about the functioning of An Bord Pleanála.

Investigations

Currently, a senior counsel is investigating cases where An Bord Pleanála deputy chair Paul Hyde presided over decisions. This follows revelations that he was on the sub-division of the board that decided on a development near lands in Blackpool in Cork City owned by him and his father.

He also gave the nod on a planning appeal for a domestic home in Dublin owned by his brother and sister-in-law.

There are dozens of other cases that also fall under the microscope of Remy Farrell to check whether any potential conflict of interest arises.

Mr Hyde has denied there was any conflict of interest.

The Ditch also revealed that another board member, Michelle Fagan, participated in an appeal decision in her own neighbourhood of Rathmines in Dublin. This is contrary to good practice.

The Irish Examiner, for instance, is aware of a former board member who took this aspect of his duty very seriously.

This man had worked with a public body in Kildare so he recused himself from appeals anywhere in the county. His wife’s family is from Donegal, where his mother-in-law was active in environmentalism, so he also recused himself from anything before the board from that county. 

Such a rigorous awareness of any possibly perception of bias is in contrast with what has been going on in recent years

Another area of major concern is the relationship between members of the board and the inspectorate of An Bord Pleanála.

Independent investigators

Inspectors, of which there are 55-60, are effectively independent investigators on appeals or planning decisions. They visit the site, corelate all the information required for planning, and write a report with a recommendation for presentation to the board.

This recommendation does not have to be followed but deviation from it used to be an exception rather than a rule.

Last Saturday, Cianan Brennan reported in this newspaper that, in the vast majority of cases involving telecommunications masts over the last two years, Mr Hyde overruled the recommendations of inspectors and granted planning applications.

Changing reports

Now, it is emerging that inspectors have been repeatedly asked to change reports, which would, to some extent, be akin to a judge asking a prosecuting lawyer to change the book of evidence to come before him or her.

The Irish Examiner has reported on cases such as the Kerry greenway, where reports were changed and only came to light during subsequent legal proceedings.

Other cases have been reported on elsewhere.

The Irish Examiner reported this week that inspectors have become so concerned at this practice that it was brought up at an industrial relations meeting with An Bord Pleanála management on March 24.

A spokesperson for Fórsa confirmed to the Irish Examiner that inspectors had raised concern over being asked to change recommendations on their reports.

“These concerns are currently being assessed and it is envisaged there will be further discussions with Fórsa on this issue,” said a spokesperson for An Bord Pleanála.

One source familiar with the operation of An Bord Pleanála points out that the board is entitled to look for more information from inspectors if members believe it is lacking.

“But the cases that are now arising go way beyond that,” says this source.

“It simply didn’t happen in the past and it is impacting hugely on morale among the inspectors. They were employed to do one job and now some of them are wondering what exactly their function is supposed to be.”

Complaint

Last November, former environmental editor Frank McDonald made a complaint to the Office of the Planning Regulator. Mr McDonald wrote that as a long-time observer of the planning process he had some confidence in previous boards but state: “I have entirely lost confidence in the impartiality of An Bord Pleanála in dealing with ordinary planning appeals and SHDapplications”.

Mr McDonald outlined a whole range of cases, judgments, and processes that he believes demonstrated how the board was not functioning as designed.

"In past times, members of An Bord Pleanála behaved as if they were in a monastery, so conscious were they of their quasi-judicial role and the need to avoid entanglements with private sector interests.

"‘We were like monks in a contemplative order — apart from the arguments we had at board meetings’, a former Board member told me. That’s clearly no longer the case,” wrote Mr McDonald.

Now the board is increasingly perceived as being in league with the planning industrial complex, trampling over local residents and public representatives to grant permission for most of the massively overblown SHD schemes coming before them

The regulator’s office responded that the kind of investigation Mr McDonald was requesting was not in its remit to conduct.

Regulator review

The regulator is currently examining procedures and practices in planning among local authorities and is expected to conduct a similar review in An Bord Pleanála by early next year.

One of Mr McDonald’s concerns was information he had that cases were not being allocated to board members on a random basis, as had long been the practice.

He believes that some cases, particularly those involving large housing developments, were effectively being corralled by a few members

“My complaint drew particular attention to the powerful role of Paul Hyde, who has been a board member since 2014 and was appointed deputy chairperson by Eoghan Murphy in 2019,” said Mr McDonald.

This view is shared in many quarters. Ian Lumley is heritage officer for An Taisce, which is one of the bodies with the power to nominate candidates for the board whenever vacancies arise.

Lack of confidence

“There is a systemic lack of confidence in An Taisce in the board on multiple grounds,” said Mr Lumley.

“There is the recently highlighted conflict-of-interest issues, the large number of decisions by the board being overturned in judicial review, and the legal costs arising.”

The analysis of both Mr McDonald and Mr Lumley chimes with that of a whole range of different sources, including those inside An Bord Pleanála. Practically all point to three factors that have led the board to its current station.

As with any organisation, the buck stops with the boss. Various people have observed that the current chairman, Dave Walsh, must bear some responsibility for the lack of confidence in the board.

Mr Walsh took office in October 2018, succeeding Mary Kelly, who had previously served as director general of the Environmental Protection Agency.

Nobody to whom the Irish Examiner spoke questions Mr Walsh’s integrity or interpersonal skills.

One person with knowledge of An Bord Pleanála contrasted the two chairs.

“Mary Kelly has a very strong personality, which didn’t necessarily make her flavour of the month with some inside but it ensured that everybody toed the line.

Then Dave Walsh came in and it was like some who had felt suppressed under Kelly began to flex muscles. What you’re seeing now is more or less the outcome of those people being allowed to do things their way

A spokesperson for An Bord Pleanála said that in light of the ongoing controversy, the chairperson considers it would not be appropriate to give an interview at this time.

Change of function

Mr Walsh’s elevation to the chair came within a year of the advent of the planning system for SHDs, which fundamentally changed the functioning of An Bord Pleanála.

The SHD system allowed developers to apply directly to An Bord Pleanála for planning permission for more than 100 housing units or 200 student accommodation units. The Government saw this as a way to speed up the planning process.

Now, An Bord Pleanála was no longer an appeals body in respect of large housing developments but a planning authority.

“For the first time this brought developers and their agents into direct contact with the board and its planning inspectorate during rounds of ‘pre-application consultation’,” said Mr McDonald.

“Previously all communications with the board were at one remove, on paper.”

Legal challenges

The board set up an SHD division headed by Mr Hyde. Another feature of the system was that applications had to be completed within 16 weeks. This was designed to speed things up but often led to major errors, which have resulted in a ramping up of legal challenges to board decisions, and a fallout in successful outcomes from the courts for the board.

In 2016, there were outcomes to 25 judicial reviews taken against An Bord Pleanála decisions. By 2020, this had increased to 51 cases

In 2016, permission to proceed was granted in 68% of court decisions but by 2020 this had decreased to 37%.

Not only had the number of cases being challenged doubled two years into the SHD system, the board was effectively losing nearly twice as many as it had when operating exclusively as an appeals board.

Mounting costs

The cost of these losses mounted up. In 2019, the legal bill for An Bord Pleanála was €3.5m. The following year it was €8.2m.

On every level, the SHD system was a failure, including in terms of getting homes built.

Despite the fast-track system, less than 20% of homes were built for which permission was granted under SHD legislation.

The Government acknowledged this last year when announcing that it would be discontinued. Its response to the high number of judicial reviews being lost by the board is to propose to make it more difficult to access the courts on planning matters.

What is now emerging is the impact that the system had on the internal workings and morale in An Bord Pleanála.

“There was huge pressure to get these cases over the line,” said one source.

It was as if getting as many as possible within the 16 weeks was seen as a badge of honour that could nearly be presented to the Government to show that the board was doing its bit

"And there was a feeling that the positive should be accentuated when it came to assessing applications.”

That view of the approach of the board to SHDs is shared by others. Pádraig McEvoy is an independent councillor in Kildare County Council for the Clane district. The county was the focus of a large number of proposed SHD developments.

“Why does the board often grant planning permissions that conflict with national policy, particularly with limitations on housing growth in smaller towns not earmarked for infrastructure investment,” said Mr McEvoy.

“From a distance, genuinely reasonable observers infer from media articles that the ethos has shifted from quasi-judicial arbitrators of planning appeals to prioritising permissions for large numbers of units.”

New guidelines

The third factor referenced by observers inside and outside An Bord Pleanála is the imposition of the new guidelines for apartment buildings — initially brought in by Alan Kelly and enhanced by his successor, Eoghan Murphy.

The guidelines effectively increased heights and decreased sizes in apartments to get more built economically. However, these guidelines are not utilised in most county development plans.

Therein lies the potential for conflict between local authorities, which grant planning according to county development plans, and An Bord Pleanála, which is mandated to observe national policy.

Heightened tensions

Internally in An Bord Pleanála, this again heightened tensions between inspectors and the board members.

“I’ve always been of the view that the biggest problem in An Bord Pleanála is the repeated conflicts between decisions of the board and those of planning authorities,” says Eoin Ó Broin, Sinn Féin’s housing spokesman.

“Therefore, irrespective of the governing issues which are coming to light, there is the separate issue that as long as the Eoghan Murphy guidelines are on the books it will create conflict.

“Legislation means the board has to have regard to development plans but also has to adhere to central policy.”

The great weight of evidence and opinion suggests that the board is perceived as being more favourable to developers, particularly institutional developers, than was formerly the case when there was confidence in its independence.

Irish Institutional Property (IIP) chief executive Pat Farrell would not be drawn on how his body sees the performance of the board, pointing out that IIP has representation on the Planning Advisory Forum established under the Housing For All plan.

“We contribute our views and observations in relation to the planning system through our engagements with the forum and other stakeholder members,” said Mr Farrell.

As for the future of An Bord Pleanála, it remains to be seen whether and how it can rehabilitate itself.