Ms Oonagh Buckley:

On learning from court decisions, I do not disagree at all. I say with absolute regard, including for the two witnesses sitting beside me, that the board has been quite overwhelmed with the level of decisions, concessions, and judicial reviews that have been taken in recent times.

One of the unfortunate learnings that has derived from that is that both inspectors' reports and board decisions have got longer and longer, and not just for SHDs and strategic infrastructures, but for everything. Things are taking longer by definition because people are now trying to cover off absolutely everything. As a consequence, we are giving more material for judicial review. One of the key things, even before we recruit a director of legal affairs, is that I am bringing in our external legal counsel to assist us in looking at how we draft inspectors' reports and board decisions and to ask are there neater, tighter and more economical ways we can do and manage this very large overhead of decisions.

When I refer to moving goalposts, I am suggesting that we are getting decisions now that apply a high standard to the reasoning and detailed decision-making in respect of board decisions which were taken 18 months or two years ago. It is a mismatch in terms of what was known then and what is known now. That is something that we are trying to cope with. To that extent, and I do not want in any way to criticise the Judiciary, but the impression internally is the goalposts are constantly moving and that we are constantly having to reach a greater level of detail.

As to the changes throughout the Bill, if I can take a classic example, since the board was created, and certainly since the 2000 Act, it has been required of the board that it sets out the main reasons for its decision. That has now morphed into every issue having to be covered, because whether it is main or not main, if it is raised in an objection it must be dealt with. This has become an almost oppressive requirement in trying to ensure that things are covered in their excessive detail, particularly, as I say, when one is talking about an organisation that is a demand-led one. What comes through the door to us is what we have to deal with.

One of the things I certainly would like to have a conversation with the Department about is to ask if is there a way of clarifying what “main” means, so that we go back to what was originally intended and to what I believed, as one of the co-authors as of the 2000 Act, was intended in 2000. This was that the core decision, so that people understood the core reasons why something was acceptable or not acceptable.