We have yet to see the contents of Remy Farrell’s much-anticipated review of the ongoings at An Bord Pleanála, and yet the whole project already feels like it has been an elaborate ruse by Government to take the sting out of the situation and preserve the status quo.
First announced on April 27, the senior counsel’s review was tasked with investigating three specific planning decisions and possible financial conflicts on the part of Paul Hyde, the former deputy chair of An Bord Pleanála and head of its strategic housing division.
The review’s announcement signalled that the stories regarding Hyde’s alleged conflicts of interest had reached sufficient pitch that the Government felt something needed to be done. Or it needed to be seen to be done.
This is no criticism of Farrell, who is by all accounts a conscientious and diligent worker not given to doing any job by half measures. Nevertheless, that the review was only to focus upon Hyde, who resigned from the planning body on July 8, and then only on quite a narrow swathe of the former deputy chair’s decisions, is laughable.
Consider just some of the other information that has come to light regarding An Bord Pleanála in the interim.
Board members have been making decisions, apparently as a matter of routine, regarding proposed developments within their own residential communities. If not in direct contravention of the An Bord Pleanála code of conduct, which precludes board members from “knowingly” engaging with an appeal case concerning their “own immediate neighbourhood”, it certainly seems to fracture its spirit.
Separately, it emerged that board members had repeatedly pushed for planning inspectors to amend their reports, or edited them themselves, prior to the board taking its final decision.
It emerged that the board’s director of planning told a developers’ investment conference in early May that the current applications appeals system is “misused or exploited” by a “small minority” in order to prevent the building of 80,000 residences. Heaven forbid people should object to shoddy planning decisions on their doorsteps.
News then broke that Hyde was first nominated for elevation to An Bord Pleanála in 2013 by an organisation — the Irish Rural Dwellers Association, a sort of reverse An Taisce encouraging rural one-off developments — which had ceased to exist the year before.
When questioned, three of the association’s former board members had no recollection of who Hyde even was.
In late May, this newspaper revealed that Hyde, together predominantly with fellow board member Michelle Fagan, had been overruling his own planning inspectors in nine out of 10 cases in granting permission for the construction of telecommunications masts in communities across the country.
The
reported that over 40% of planning permissions granted for constructing those masts, between September 2020 and May of this year, could have been challenged legally had the statute of limitations for legal judicial review not expired.Online news outlet The Ditch, which first raised the issue of Hyde’s potential conflicts of interest back in April, reported that Fagan and Hyde had been approving, as a team of two, as many as 26 planning cases in one go during afternoon sessions in the Bord Pleanála boardroom.
An analysis of the court cases the board has been losing concerning strategic housing developments, the housing policy set to be discontinued later this year, showed that Hyde — An Bord Pleanála’s sector head of SHDs since their inception — had voted for approval of those applications in all 32 instances in which the board had lost a subsequent judicial review.
Legal fees for defending such actions now account for fully one third of An Bord Pleanála’s budget.
All this and more has come to light since Farrell’s review was first announced and the terms of reference were published.
None of it will contribute to his findings.
Two other probes into An Bord Pleanála, including one internal review of its processes, have been announced. The internal review is also due to report shortly. Board chair Dave Walsh has said he plans to publish it “subject to legal advice”.
It differs from the Farrell report in that it is allowing for certain revelations which have emerged in the past two months to be considered. It will search for “identifiable trends” in terms of the board’s decisions (think the mast decisions), and will evaluate the current systems for making statutory declarations of interest, among other things.
But the review that matters, the one commissioned by the housing minister, he who appoints An Bord Pleanála’s board members in the first place, remains as it was first announced on May 12.
One week after that, Social Democrats housing spokesman Cian O’Callaghan stood up in the Dáil and stated that the terms of reference “already appear to be out of date”, and called for them to be widened in order to ensure the “absolute necessity that [An Bord Pleanála] retains the confidence of the public”.
The man at the centre of it all has subsequently resigned. Hyde left the board on July 8, two months after stepping aside from his role, “without prejudice”, pending the result of the Farrell report.
But this was always about much more than one man’s allegedly flawed decision-making.
If the incessant revelations about An Bord Pleanála have taught us anything, it is that the culture in place at the body is a problem and needs to be dealt with meaningfully. Planning is too important to the country and population at large. It is no exaggeration to say that planning decisions can serve to make or break lives.
An Bord Pleanála was trusted once. It would be hard to argue that is still the case. And yet, what has changed over the past three months?
Two weeks ago, the Government reacted to people using their statutory right to judicial review by passing legislation to make it immeasurably more difficult to do so.
Two weeks ago, chairman Dave Walsh appeared before the public accounts committee and refused to apologise for any of the details which have emerged regarding decision taken under his watch. He said the system in place is “based on personal responsibility and integrity”, which would be almost funny if it wasn’t so serious.
All of this may seem overly cynical.
Perhaps both reviews by Farrell and An Bord Pleanála itself will be published and will contain meaningful recommendations to restore transparency to the planning process.
Perhaps the Taoiseach’s suggestion that the system by which An Bord Pleanála board members are appointed needs to change will be acted upon.
Perhaps, perhaps, perhaps.