Paudie Coffey (Fine Gael)

I thank the Minister of State for that clarification. Is he saying that if it does get to full application stage, costs that have accrued pre-application can be allowed by the board? If so, I welcome it.

I have already highlighted my concerns over costs. The planning process and the decision making around it must enjoy public confidence. In recent years An Bord Pleanála has been involved in a high profile case which involved a huge cost to the Exchequer due to the way in which the board responded to an application to the High Court for a judicial review of a case in County Kildare. I will not go into the details of the planning aspects because that does not interest me. The case went to the High Court and in 2007 Mr. Justice Kelly quashed a decision by An Bord Pleanála on the grounds that the court found there was objective bias against An Bord Pleanála and there were irregular planning procedures within its decision-making process. No minutes were taken of the An Bord Pleanála meetings that decided this planning application, which was for a landfill in Usk, County Kildare. Under this Bill, would the board be in a position to try to recover its costs having defended its decision in court and lost? This could be seen as essential infrastructure. It is a fundamental question.

In that High Court case Mr. Justice Kelly quashed a decision but he also made recommendations to An Bord Pleanála to minimise any further risk or costs. He made two recommendations to the board. One was to take legal advice before proceeding further on the application. The other was that any board members previously involved in the original decision should not be involved in any further consideration of the application. They were reasonable recommendations by the judge to guard against any further costs to the State and to ensure An Bord Pleanála would follow the proper procedure.

I was concerned to discover that these recommendations were ignored by An Bord Pleanála at huge cost to the taxpayer. In July 2009, there was a second High Court case regarding the same matter. An Bord Pleanála's decision was quashed again, by Mr. Justice MacMenamin, owing to irregular procedures in the planning process within the board. I was horrified to discover that the chief executive of An Bord Pleanála reappointed almost all the same board members in the decision-making process, despite the previous High Court recommendations. We are told that he also did not seek legal advice, despite being recommended to do so previously by the High Court. Therefore there was a blatant disregard of court recommendations at a huge cost to the taxpayer by the actions of An Bord Pleanála. I have a serious difficulty with this.

I have no issue concerning the planning matters and An Bord Pleanála needs to be independent of all politics and any interventions. However, I have a problem with the whole procedure, including the transparency and accountability with which An Bord Pleanála does its work. Perhaps the Minister of State can clarify whether section 21 allows An Bord Pleanála to recover costs owing to some crazy decisions it has made to defend decisions without proper accountability and transparency. I certain hope it does not. It has been found by the courts to have objective bias, which is a serious attack on the fundamental integrity of the planning process. An Bord Pleanála failed to oversee and ensure proper procedures within the decision-making process.

I asked this question at a sitting of an Oireachtas joint committee and I was told that the judge had made a wrong assumption. That was a serious statement of arrogance by An Bord Pleanála. The following day the Courts Service took issue with that assertion by the head of An Bord Pleanála. I have concerns about the transparency, accountability and integrity of An Bord Pleanála's planning process and how it arrives at its decisions. Perhaps the Minister of State can clarify whether any element of this section refers to the recovery of costs where An Bord Pleanála has made decisions that were wrong and should never have been taken. I would appreciate some clarity on that matter.