Mick Clifford: Reform of An Bord Pleanála must amount to more than mere spin and promises
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Minister for Housing Darragh O’Brien is running to stand still on the An Bord Pleanála debacle. On Monday, he announced that a report into allegations about Paul Hyde was being referred to the Director of Public Prosecutions.
Mr Hyde, the deputy chair of An Bord Pleanála until his resignation last month, acted in his quasi-judicial role on a number of occasions in instances where a conflict of interest may be at issue.
The material facts in most of these cases are not in dispute. Mr Hyde does, however, claim a defence. In relation to a case in which he failed to declare an interest in lands near a proposed development on which he ruled, he has said it was irrelevant. In another instance, where he granted a planning appeal on an extension for a house owned by his brother and sister-in-law, he says he was unaware they were the owners.
The DPP will have to determine whether Mr Hyde contravened Sections 147 and 148 of the planning act, where it is deemed that an offence has been committed if interests are not declared in an appropriate manner.
One way or the other, Mr Hyde’s time on the board has come to an end. What remains is the mess, only some of which can be attributed to the allegations in which he is mired. What has emerged since this story first broke in April is that an institution that had remained standing when many around it wobbled or fell in recent decades is in need of major reform.
Whether or not that reform can be effected under current management remains to be seen.
Mr O’Brien talked tough in Monday’s statement about his commitment to reform. Unfortunately, the rhetoric he deployed bore little resemblance to many of the facts as they are known.
There was, however, one nugget of good news. Belatedly, the Government has sanctioned 24 extra posts for the board. This is occurring at a time when there are severe blocks in the planning system — at every level — in expediting development, particularly in the area of offshore wind energy.
It’s a pity that it took a scandal for the Government to finally get cracking in this respect.
Apart from that, much of Mr O’Brien’s tough actions are old news. For instance, he announced “an independent organisational review will be carried out by the Office of the Planning Regulator… the OPR review will help inform other internal changes as required and will also assist in identifying legislative amendments which may be required”.
That review was scheduled since before the current controversy broke and was affirmed by the OPR earlier in the summer. More to the point, a question might be asked as to why another review is necessary.
An independent review published in 2016 has, for the greater part, not yet been actioned. If it had, some of the governance issues that have now arisen may have been avoided.
For instance, the minister’s statement says “the current appointment process will be overhauled and the process for nominations in place at the moment will cease. The minister will bring a plan to Cabinet in the coming weeks which will outline a new appointments process for members of ABP [An Bord Pleanála] underpinned by new legislation”.
Six years ago, the independent review recommended that “the process concerning the selection of board members should be amended”.
The review even pointed the way: “Two board members should be recruited through open competition and should be selected for board membership by the Public Appointments Service in a manner broadly consistent with appointments to other public bodies”.
Why was that never done?
Was it, for instance, because any such reform might move the process of selection further away from government?
That’s only one of whole raft of changes that were not effected. In response to parliamentary questions about the implementation of the review in 2019, the department revealed that 33 out of 101 recommendations in relation to governance and legislation at An Bord Pleanála had been completed.
Now we’re being told that what is required is another review.
Another issue that has emerged as a problem in recent months is the use of two-person boards to make decisions.
On Monday, the minister said reforms will include “the complete cessation of two-person decision making panels”. Again, problems around this were flagged all the way back in 2009, when legislation was introduced to allow for two board members to make decisions, rather than three.
At the time, planning lecturer Berna Grist, who has served previously on An Bord Pleanála, pointed out that ”problems would inevitably arise if two rather than three heads came together to make a decision”. Ms Grist wrote at the time:
“Efficient yet responsive, immune from the dangers of dictatorship and the complexities of committee decision-making. That is why the two-person tribunal is a rarity and the three-person one is the norm.”
So it was, as first reported in the by Cianan Brennan, a whole raft of recommendations from inspectors to refuse permission for communication masts were ignored by two-person boards in An Bord Pleanála over the last three years. The vast majority of those cases involved the same two members, Mr Hyde and Michelle Fagan.
Now Mr O’Brien is telling us that he has finally seen the light in this respect?
One other measure that the minister announced is that his office will require monthly bulletins on corporate governance from the board. How will that impact on the impartiality that is supposed to inform the board’s decisions? What would stop, for instance, a successor of Mr O’Brien’s from using this arrangement as leverage to push the board towards more favourable consideration of government policy when deciding what’s in the best public interest?
The primary objective of any reforms of the board has to be the restoration of public confidence. That will require time, but it will also require an approach that is informed by more than spin and promises on the never-never. Let’s wait and see just how serious the Government is in attempting to restore the planning board to a place where the pubic can be reassured that planning issues are dealt with fairly and efficiently.