Mick Clifford: No entity should escape public scrutiny — including An Bord Pleanála
Distillery Quarter The Distillery And The Two Nine By Construction Apartments, The Building Blocks, Bord Apartment Was Conversion Involving Mill Former Of An Pleanála Storey For Proposed Into Blackpool, Hewitt’s Rejected In Of Plans
The members of An Bord Pleanála wield huge power and carry major responsibility. Their decisions impact thousands across the State, and they are only accountable, to a certain extent, through the superior courts.
So when an allegation about a conflict of interest arises, it needs to be taken very seriously. Unfortunately, such an allegation has arisen, and so far, many people are simply looking the other way.
Today, the reports that the planning regulator has made inquiries connected to the allegations. Beyond that, the body politic has, to a large degree, ignored the matter.
Just two parliamentarians — Sinn Féin’s housing spokesperson Eoin Ó Broin and the party’s Cork North Central TD Thomas Gould — have opined on the matter. Equally, much of the media has largely given the story a wide berth.
Before dealing with the allegations, take a quick look at the power and responsibility at issue here.
Today, in a completely separate case, a community group in West Cork is launching a judicial review against a board decision to permit the construction of a wind farm in Gougane Barra. The community is opposed on a number of grounds, not least the impact on what is a tourist attraction and recognised beauty spot.
Local politicians are equally vocal in opposition. Cork County Council refused permission because it contravened the objectives of the county development plan.
The developer appealed the decision to An Bord Pleanála. Crucially, the inspector for the board also rejected the proposal, on the basis that it “would have significant environmental and visual impacts”.
Despite all these voices, the members of the planning board, applying their knowledge, experience, and remit to implement national policy, determined that it should go ahead.
There is no implicit criticism of their ruling, but it does indicate the level of power vested in the members that their writ overrules all else, notwithstanding the depth and strength of opposing views. In such a milieu, it is vital that the public has, and retains, serious confidence in the capacity of the board to do its job without fear or favour.
All of which brings us to the allegations of a conflict of interest. Last month, the board rejected a strategic housing development (SHD) application to build 191 apartments on the site of the former Hewitt’s Mill distillery and nearby wasteland in Blackpool, Cork City.
The application was made by a company, Eichsfeld Ltd, which is understood to be controlled by Cork businesspeople. SHDs go straight to An Bord Pleanála, bypassing the local authority’s planning department, although the policy is currently winding down.
The deputy chairman of An Bord Pleanála, and chairman of the SHD division, Paul Hyde, presided over the three-person board which rejected the application. Mr Hyde was appointed to the board in 2014. The meeting at which the decision was made took place on March 9.
The minutes from the meeting, seen by the , include a standard section which asks: “Conflict of interest identified?” The response was “No”.
Yet, as first reported on The Ditch website, Mr Hyde has a 25% stake in a company that owns a site just 50m from the distillery site. His father owns the other 75% of the company, H2O, which has a number of property interests. It is difficult to envisage how this could not have been seen as a conflict of interest.
In addition, there is also an allegation that Mr Hyde’s interest in the site, along with other property interests, were not mentioned in the most recent declaration-of-interests returns by board members.
When reporter Cianan Brennan asked the board whether the part ownership of a neighbouring property represented a conflict of interest for Mr Hyde, the response was to refer to the legislation governing declarations of property interests and potential conflicts of interest. “The board has nothing further to add,” the statement concluded. Mr Hyde has not spoken publicly about the matter since.
So who can get to the bottom of this? Certainly, it would appear to be, at the least, inappropriate for fellow board members to determine whether Mr Hyde has broken any laws or whether the case at issue needs to be revisited. Beyond that, it would seem that the only authority with the power to do anything is the Office of the Planning Regulator, but its remit is limited.
In response to a query from the , a spokesperson said the office “has been in contact with An Bord Pleanála to confirm that procedures are in place with regard to the making of the relevant returns by board members”. The regulator’s remit does not run to investigating specific decisions by An Bord Pleanála.
As stated above, there may well be a reasonable explanation for all this. It is also possible that Mr Hyde consulted with his fellow board members prior to making the decision, referencing his property interest. If so, then it should have appeared on the minutes, but did not. The most helpful gesture would be a statement from Mr Hyde clearing up any misunderstanding or error.
Whatever the explanation, the current impasse is not sustainable. No entity or agency in the State is above appropriate scrutiny. Belatedly, for instance, the judiciary is being subjected to appropriate scrutiny, particularly in relation to complaints of misconduct or the failure to observe procedures.
When this story broke, the editor of magazine, Michael Smith, made a complaint to the Standards in Public Office Commission about the issue and wrote to the secretary of An Bord Pleanála outlining how he believed the circumstances were sufficient on which to ground a criminal complaint.
Those matters may progress, but even if so, will most likely advance at a snail’s pace.
The importance of public confidence in An Bord Pleanála cannot be overstated.
Routinely, members of the public — and those applying for permission to develop — are so discommoded by unfavourable decisions that they ascribe ulterior motives to the board. These are invariably vexatious or inaccurate and merely the product of acute disappointment on the part of those on the wrong side of a decision.
But the emotion generated by decisions, the impact — both positive and negative — on lives, does demonstrate how important public confidence is in the workings of An Bord Pleanála.
With each day that passes without this matter being addressed, such confidence is inevitably leaking.