Oireachtas Joint and Select Committees

Tuesday, 9 October 2012

Joint Oireachtas Committee on Environment, Culture and the Gaeltacht

Decision-Making Processes: Discussion with An Bord Pleanála

2:20 pm

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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We are in public session and are joined by Dr. Mary Kelly, chairman of An Bord Pleanála, Mr. Conall Boland, deputy chairman, Mr. Des Johnson, director of planning, and Mr. Gerard Egan, director of corporate affairs, to discuss An Bord Pleanála's decision-making processes and how its decisions are arrived at. I thank the witnesses for their attendance.

In commencing proceedings I wish to draw attention to the fact that by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to this committee. However, if witnesses are directed by this committee to cease giving evidence in relation to a particular matter and they continue to do so, they are entitled thereafter only to a qualified privilege in respect of their evidence. Witnesses are directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect the parliamentary practice to the effect that where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. I also wish to advise that the opening statements submitted to the committee will be published on the committee's website after the meeting. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official by name or in such a way as to make him or her identifiable.

Before I call Dr. Kelly to make her presentation I wish to say that the decisions of An Bord Pleanála play an important role in Irish life; they affect every townland and are of interest to everybody. They are often controversial and result in much debate, as was very much the case in Cork city last evening. Therefore, we are very interested in what the witnesses have to say. I thank them for attending and invite Dr. Mary Kelly to make her opening statement.

Dr. Mary Kelly:

We have gone through the introductions already. I am accompanied by Mr. Conall Boland, deputy chairman of An Pleanála, Mr. Des Johnston, director of planning, Mr. Gerry Egan, director of corporate affairs, and Mr. Chris Clarke, secretary to the board. I have been the chairman of An Bord Pleanála since 29 August 2011. While the annual report is under my guardianship, I was not in An Bord Pleanála for full period it covers.

I have a PowerPoint presentation, as I find it easier to talk about figures and have a few graphs to show members, and I also have an opening statement. I will begin by giving a brief introduction to the mandate; the development of the role of An Bord Pleanála over the years; some new functions that have been given to us; the annual report and the results of it; and the decision-making processes, which will probably cover the entire presentation because that is what the committee asked me to discuss. I will then be happy to answer any questions, along with my colleagues.

On the role of An Bord Pleanála, we are responsible for the determination of planning appeals under the Planning and Development Acts, compulsory acquisition of land by local authorities, the determination of appeals under the water and air pollution Acts and the Building Control Act, and the determination of strategic infrastructure applications, including local authority projects. In addition, we have been given a number of other functions recently with regard to quarries and substitute consents and have some expanded functions under the Planning and Development Acts.

In terms of resources and staffing, the board, like all public sector agencies, must carry on with fewer resources than we had previously. Under the Act, it is envisaged there will be a chairman and up to nine ordinary members. Currently there is a chairman - myself - and seven ordinary board members. In terms of staff, in 2008 we had 182 staff, including board members. The employment control framework number for 2012 will bring that down to 146 by the end of the year; that is the number we have to achieve by the end of the year and we are very well advanced in terms of achieving that. That will represent a reduction of 20% in staffing over that time. During the Celtic tiger years we used the services of many fee-per-case inspectors but that has now been discontinued completely. We do not outsource any of our inspections any more. We also had the retirement of a significant number of senior staff in February 2011. The graph displayed shows the total income better than I can by describing it.

Members will note that there has been a big decrease from 2008 to 2011, with the fall being gradual from 2009 to 2011, in the income received by An Bord Pleanála. The green segment of the bars on the chart represents strategic infrastructure. There was a good deal of that being done in 2008 but little in 2009, and very little fee income was derived from it. It has held up reasonably well in 2010 and 2011, when there were a number of big projects. The blue segment in the bars on the chart shows the Exchequer grant, while the red segment represents ordinary appeal fees. Members can note that our income is composed of the sum of those three elements.

Turning to our expenditure, members will note from the next graph the trend in the fall of salaries from 2008 to 2011. Legal costs are represented in the purple segment. We are price takers in terms of legal costs. We do not take cases. People take judicial reviews against decisions of the board and we have to pay for our legal representation in that respect. We outsource our legal representation. The orange segment represents other operating costs - that is, the ordinary costs of running the organisation - which have reduced dramatically over the last number of years. In terms of our expenditure from 2007 to 2011 - members will be able to follow this better on the trend charts - the total expenditure is down and non-pay expenditure is down, while pay expenditure went up a little at the end of 2011; that was related to retirements. A number of very senior people left the organisation at that stage.

Moving on to planning appeals, normal appeals against planning authority decisions constitute a significant proportion of the work of An Bord Pleanála, representing 84% of all cases in 2011.

There are different categories of appeal and members are probably all familiar with them. Appeals can be first party against refusal or against conditions, third party against a grant or sometimes, a single appeal can consist of both a first party and a third party appeal. We can also take submissions and observations from other parties. The statutory timeframe for the board to make a decision, as set out in the Act, is 18 weeks. I will talk about this a little more later on.

The Planning and Development (Strategic Infrastructure) Act 2006 provided for applications direct to An Bord Pleanála for projects deemed to be of strategic importance. The conditions that must be fulfilled for something to be deemed to be strategic infrastructure are set out clearly in the Act. The idea was to have expeditious determination of complex applications and in that regard, An Bord Pleanála provides a one-stop shop. It is not necessary for such projects to go to a local authority and then come to An Bord Pleanála on appeal; instead, they come straight to us for a determination. In general they are large, complex projects, and as well as being obliged to comply with all national legislation, they also must comply with European Union directives and generally require environmental impact assessment, habitats assessment and so on. The provisions of the aforementioned Act were introduced in January 2007 and the first decisions were issued in 2008.

Pre-application consultations are provided for under the Planning and Development (Strategic Infrastructure) Act. The primary purpose of pre-application is to decide whether the proposed development constitutes strategic infrastructure development, SID. They are strictly controlled and, as I stated, there are clear criteria for what constitutes SID. A record must be kept of each meeting that is held and the record of such meetings must be published once the pre-application phase is closed. The pre-application meetings and consultations provide an opportunity for the board to highlight issues that may be of concern to the developer. However, applications cannot be predetermined in these meetings and I think people sometimes get a bit frustrated in thinking the board can tell them or give them a nod as to whether a project is likely to go ahead. This simply is not the case in a pre-application meeting. Board members do not attend those meetings as staff of the organisation are delegated to so do. Third parties are not included at that point, and one reason the board cannot give any indication as to the likelihood of a project succeeding is that it has not yet heard from third parties at that stage and does not know what new issues they may bring in. Developers really should take account of the consultation because at these meetings, the technical and administrative staff will raise with them various issues that must be taken into account for the application to go ahead.

The slide now on display gives members an indication of activity since such strategic infrastructure development applications started to come in, during which time the board has received 59 full applications. The Seventh Schedule to the Act sets out a number of categories, namely, energy, environment, transport and health. As the slide shows, we received ten environmental applications, which would be for items such as waste facilities. There were nine applications in the energy category, and seven transport applications, including the DART, the Luas and similar projects. Electricity transmission is a separate category, as are the categories of strategic gas infrastructure, railway orders and others, which include compulsory purchase orders.

The next slide shows how much activity there has been in getting a total of 59 applications before the board. We have had pre-application requests on 231 applications and pre-application processes were concluded on 206 of these. A total of 403 pre-application meetings were held and this all resulted in 59 applications. Of those 59 applications, 42 have already been decided, of which 36 resulted in a grant or an approval and six were refused. Eight applications were withdrawn for various reasons and nine are currently before the board. The percentage of cases that are determined within the statutory guidelines is 55%. As I noted, these cases in general are very complex. Almost all of them are required to have an oral hearing in order that the public can have their say, understand what the project is about and raise any concerns they may have, which will be considered by the board at a later date.

Some new functions have recently come to us in respect of control of quarries and development consent for local authorities where appropriate assessment is required. These have generally come in because of European directives, which, through various European Court of Justice rulings and otherwise, have been found not to have been implemented properly in Ireland in the past. In the context of trying to regularise Ireland's position on these to comply with the European directives, An Bord Pleanála is seeing quite a number of new cases coming to us that we have not had before. For example, I refer to the ordinary retention that used to be available to people for development. If it is affected by environmental impact assessment or the habitats directives, such retentions now are only permissible in exceptional circumstances. Consequently, the usual retention is not really available any more. We are in a whole new area in which we must require remedial environmental impact statements and remedial Natura impact statements in order to comply with European Union directives and, nowadays, with national legislation. This is giving us quite a large amount of work at present. I believe I have figures to display in this regard on the next slide. Another piece of work about which we are in discussion with our parent Department concerns foreshore consents. While it is likely that foreshore consents will come to the board to be decided in the future, it has not happened thus far. Some other potential new work is also under discussion.

I gave members quite a detailed assessment of quarries in my opening statement. While I will not go into it in huge detail here, I can answer questions if members wish. However, I will provide the joint committee with some of the figures. Local authorities must examine all quarries in their area and must issue notices to them if they find certain things. These notices also are to be notified to the board and thus far, between August and the present, we have received 805 notices. Once a quarry operator gets a notice, which could be a notice to cease trading or to carry out various other acts, it can seek a review by An Bord Pleanála of the local authority determination - that is, the planning authority determination. At present, we have 325 review applications in-house. There also is a provision in the Act for an extension of time and 54 such extensions are in front of us. Moreover, there are 17 pre-application consultation requests. An Bord Pleanála has been quite busy in recent times with all of that. At present, we are not sure how many of these applications will turn into substitute consents as time goes on.

As for our overall activity in 2011, as set out in the annual report, our intake of new cases is just over 2,100, which constitutes a fall of 26% from the 2010 figure. The number of cases determined in 2011 is 2,326, which is down by 28% from the previous year. The rate of reversal of planning authority decisions is approximately 31%, which is reasonably in line with the usual rate.

It seems to come out around the same, more or less, every year.

Appeals to An Bord Pleanála, it should be pointed out, represent only 8% of all planning applications. They represented approximately 8% this year and it generally works out in or around that. It is not a significant percentage.

The number of strategic infrastructure cases that we determined in 2011 was ten, and we received 11 new applications. We determined 69 local authority cases and received another batch of 52.

A graph in the PowerPoint presentation shows quite starkly the number of applications over the years, from 2002 to 2011. The grey line shows the intake of cases. One can see that it has dropped dramatically from 6,664 in 2007 to 2,110 this year. It merely represents what happened in the construction sector and in the development world in that time. The number of cases disposed of has clearly dropped as well and one can see that there is also a drop in the cases on hand.

On the statutory time-frames set out, the objective for decision-making is set out in the Planning and Development Acts. As I stated earlier, the objective is to determine cases in 18 weeks for most matters - it is four months for one or two. In some cases there is not any objective.

Previous boards have set the strategic objective of determining 90% of all cases within the 18 weeks. It had not been possible to achieve that in the Celtic tiger years but good progress has been made since then. However, this year there has been a bit of a fall off.

A graph in the PowerPoint presentation will give the committee a clear picture of what was being achieved. In 2004, 85% of cases were determined within the 18-week period. That fell to 23% in 2008 as the numbers coming into the board increased in leaps and bounds. Since then, as the graph shows, it went up to 26%, 63% and, in 2011, reached 81%.

At the end of 2011, a number of board members' contracts came to an end and there was quite a delay in appointing new members. We had new members appointed in May. Some of the existing members had left in November, December and January. For the best part of six months, we were without a full board. Every case before An Bord Pleanála must be decided by the board and cannot be delegated to other staff in the organisation, and that causes a bottleneck at board level. The reduction in numbers at board level has meant that in 2012, the 81% figure for cases determined has fallen, probably to 40% at this part of the year. We now have seven board members and myself as chairperson and we should be able to get those numbers back up towards something more respectable towards the end of the year and into 2013. We felt it was only right to review our objective of achieving 90% within 18 weeks when we knew we could not achieve it and we set an objective of 50% for this year, and we probably will achieve that for 2012.

This is how files are determined within the board. On the life cycle of a file when it comes into the board, the files are received and we must ensure that they are valid applications. They go into processing, which is an administrative part of the organisation. For example, usually the processing will look for the planning authority files. These must be sent on to the board and there is a few weeks when those are being compiled. When the files are complete, they go on to the inspectorate. Each case is assigned to an inspector to examine and make a recommendation. Once that file is signed off by the inspector, it is sent on to board level.

At board level, one board member takes charge of each file and presents it to the other board members. The board generally has a quorum of three although an amendment to the Planning and Development Acts allows for a quorum of two, which we are using as we try to increase our output.

Each case is considered on its own merits. One board member presents the case to the colleagues on whatever board it is and a decision is taken and signed off, and that is the end of it for the board. We do not have an enforcement role or any follow-up role afterwards.

The board sits in a quorum of three. There is a limited number of cases, generally the more simple ones, where it can be two. We cannot decide big and complex cases with two members. The Act requires us to have a specific five-person board for strategic infrastructure development but it allows us, if the case is complex, if it is precedent setting or if the chairperson feels that it requires it, to be accelerated to a full board. Depending on the complexity of the case, we can sit as two, three, four, five, seven or eight members.

When we are considering cases, there can be a little friction between the different policies. The inspector has conducted a full analysis and makes a recommendation. When the board is trying to make a decision on something, obviously, the board then looks at all of that and has to deliberate in context. We must look at all kinds of different policies, such as ministerial guidelines and ministerial policies, and there can be friction between some of those. For example, in environmental conservation policies and energy policies, there can be quite a bit of friction between the two policies. If, for example, there is a renewable energy policy that wants to provide 40% renewable electricity by 2020 and to all intents and purposes that requires wind energy since solar and wave energy are not developed enough, one must balance that against a conservation policy that refer to landscape protection and all kinds of environmental protection. The job of the board is to consider that balance and to make decisions in a balanced way.

Similarly, there are other national policies which at times can seem to conflict with environment and local amenities. In terms of public transport policy, for example, one would like to have higher density development along public transport lanes but when one looks at that contrasting against the existing pattern of development, sometimes there is a balance to be struck there as well. The board must weigh up all of those matters and must set out reasons and considerations for decisions when it is making the decision.

I am sure the committee is familiar with the planning hierarchy in Ireland. These include the national development plan, national spatial strategy, regional planning guidelines, county development plans and local area plans and, more recently, core strategies are coming into play. The board must look at all of those and try to ensure that developments that are coming before it are within these policies.

Turning to the issue of sustainable development, the Planning and Development Acts require both the planning authorities and An Bord Pleanála to be restricted to considering the proper planning and sustainable development of the area. The Acts tell us to have regard to the provisions of the development plan, the provisions of any special amenity orders, European sites or other prescribed areas, relevant Government or ministerial policies, conditions - the types of which are set out in the Acts - which may be applied, and other provisions of the Acts. One can see that when the board is looking at particular cases for development, there are many different policies and hierarchies to be considered.

EU legislation and policy, which I mentioned already, continues to be a major influence. I named a few of the directives in the PowerPoint presentation, but these are the more important ones for planning decisions.

The environmental impact assessment directive, the habitats directive, the birds directive, the water framework directive and the strategic environmental assessment can apply at various times to the cases we consider, as do European Court of Justice judgments on environmental impact assessment and appropriate assessment. As I noted earlier, substitute consent is a way of allowing a limited form of retention for projects that would have been required to comply with these EU directives.

Among the recent trends we are seeing at board level are an increasing number of wastewater treatment plant upgrades because they are often close to special areas of conservation. Previously planning authorities could have implemented such projects without dealing with An Bord Pleanála but the board now has to make the decision where plants are close to or may interfere with special areas of conservation. Water abstraction is another issue which is beginning to come before the board. There are competing requirements when making decisions about water abstractions. The quantity and quality of water in the river must be balanced against the need to provide drinking water supplies. In regard to residential developments, planning authorities should by now have put in place core strategies and most of them have done so. We are required to take account of these core strategies in considering residential developments and zoning. The provision of infrastructure for residential developments is a key issue. Infrastructure could include transportation but is more likely to involve provision of wastewater treatment and sewerage facilities. In respect of transport, the smarter travel policy is coming into play more often and, on the energy side, the commitment to renewable energy and grid strengthening, as required under grid 25, has resulted in a number of applications for grid strengthening projects.

The more hierarchical planning system that seems to be in place at present sets the context for economic, environmental and social objectives. There is a welcome trend toward plan led development, as opposed to project led development. Regional planning guidelines, development plans and core strategies are live areas for the board. Policy guidelines and strategies from the Government have to be taken into account in decision making and An Bord Pleanála seeks to strike a balance between competing objectives. Comments are often made about the board not giving reasons and considerations but I advise those who are looking at particular developments and decisions that come from the board to read the inspectors' reports, the directions and the board's orders. They are very informative and one will see the reasons and considerations behind decisions.

2:50 pm

Photo of Catherine MurphyCatherine Murphy (Kildare North, Independent)
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I thank Dr. Kelly for her comprehensive presentation. In regard to the seven ordinary members of the board, is it necessary to achieve a balance across representative sectors? I am concerned that the quorum is two members. Is it possible to achieve a balance when only two members are present? I take Dr. Kelly's point in regard to the inspectors' reports, the directions and the orders because I frequently end up reading them. Sometimes, however, it is difficult to figure out why a decision was made where an inspector has, for example, strongly recommended a refusal on an application that the board decides to grant permission. How does the board respond when an inspector strongly recommends a refusal?

Does strategic infrastructure include any type of industrial development or does it only include public infrastructure? I ask Dr. Kelly in the hope she can tell me off the top of her head because I would otherwise have to go back to the Act.

Does the board shop around for legal representation? In regard to the cost of running the board, I note its lease expired but the difference in the cost was not large. Perhaps it is a year ahead but was a reduction sought on the rent? There is clearly an abundance of office space and it is currently possible to negotiate savings from a position of strength.

The 31% figure for reversals appears to vary according to different parts of the country. I presume decisions are broken down by category but County Leitrim had a reversal rate of 75% compared to 21% in the area that I represent, Kildare. Do these figures represent one-off houses?

In regard to higher density developments along public transportation corridors, there is a clear need to link land use and transportation planning so that public transport can function in a financially sustainable way. Where do market forces come into play? Are decisions determined by the national spatial strategy? I presume the National Transportation Authority has a role in developing strategies.

Would an online planning application system help significantly in allowing the board to function more effectively? I often find it quite difficult to decipher scales of maps and similar images. Is there a limit on that and would Dr. Kelly recommend changes in an ideal world?

Dr. Mary Kelly:

Deputy Catherine Murphy asked about membership of the board and sectoral balance. The way in which the board is appointed is set out in the Planning and Development Acts. The chairperson is appointed through public competition and the remaining members are appointed by the Minister after being recommended by nominating bodies which are specifically organised to represent various sectors. I am satisfied there is a good balance across sectors in our membership. Most of the members of the board have worked in the private sector at some point in the past. Members represent different geographic locations as well as different types of expertise. We have a number of engineers and planners, an architect and people from Cork, Limerick and Dublin.

In regard to the quorum of two, the planning and development legislation originally specified a quorum of three but this was amended in 2010 or 2011 to allow for two members due to a way of increasing throughput in decision making. The Acts set out the types of cases that two people can adjudicate and are quite restrictive.

We internally have taken an even more restrictive look at that and have very much delineated cases we feel are amenable to people. There is always the option at a three-person board or a two-person board to increase the numbers up to more people. If there is a disagreement, therefore, it will clearly go to a three-person board. Unless the two people are in full agreement, there will not be a decision. We are still in the process of examining whether this is a useful tool. It may or may not be but we have not had enough cases through two-person boards to know that. We will analyse that later in the year when we have a sufficient number. It should work for simple enough cases but it is hard to determine from the outset what is a simple case.

The second issue is if the board is overturning a recommendation of the inspector. I go back to the Acts again. The Planning and Development Acts provide for the board to make the decision and if the Acts had foreseen the inspector making the decision, they would have stated that. The Oireachtas decides that a board of two, three or more people will make that decision. The inspector goes on site, examines and always does a comprehensive report and makes recommendations. The board overturns decisions and if the board does so, it must give reasons and considerations for having done so. One will always see on the board order or on the direction a paragraph that starts, "In overturning the Inspector's recommendation, the Board took account of....". The board has a more strategic overall look at a number of the issues I have indicated, including all the various ministerial policies and guidelines and precedents in similar cases and we overturn decisions because of the nature of the decisions being made.

The Planning and Development (Strategic Infrastructure) Act 2006 sets out which type of development comes under it. Schedule 7 sets out the various categories, including energy, environment, transport, health, electricity transmission, strategic gas infrastructure, railway orders and other. They could come in under the "other" category but they need to be big developments and the criteria are clear. They can be both public and private.

3:00 pm

Photo of Catherine MurphyCatherine Murphy (Kildare North, Independent)
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I would like to know the cost of the lease.

Dr. Mary Kelly:

With regard to legal representation, we have used the same firm for the past number of years. We are looking at what we are going to do there. We do not have our own in-house solicitors; we use an external firm. They are expert in planning law and are successful for us. We have to look at whether we need to tender that work.

With regard to variance by part of the country, I refer to the appendices. One has to be careful about how one interprets the chart, as it can be misleading, because while 75% of decisions were overturned in County Leitrim, only six applications had been made and, therefore, in other counties where there are larger numbers of applications, the percentage evens out. We do not draw big conclusions from that.

Land use and transportation are big. Decisions are made on the basis of zoning in terms of residential and higher density.

The Deputy asked about online planning applications. The board does not have the facility to do this, although most of the local authorities do at this stage. We are in the process of completing a needs and feasibility study and we hope if we get funding for it to put in a new system that will allow us to do that. It would be more effective and efficient. One will probably always need a set of physical maps but, nevertheless, one can do a lot on a computer screen. One can also employ geographical information systems and make one's processing more automated and efficient.

On the strategic infrastructure development, we require everybody applying for that to set up their own website with the planning application and all the documentation on that which would mean anything that comes in a complex case can be viewed through that even though it is not the An Bord Pleanála website.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Independent)
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My question related to leasing.

Mr. Gerard Egan:

In respect of the lease, the board is in a premises on 64 Marlborough Street, Dublin 1. It moved there in 2002. It is in a contractual situation with the landlord of the premises. That contractual situation also includes upward only rent review on the lease. We have been in discussions with the landlord over the past few years, in particular, given the market situation but the lease terms have not reduced from where they have been in recent years because the landlord has indicated to us that the contractual situation obliges us to maintain the lease at that rate. The landlord does not appear to be amenable to reducing the lease below that at this point in time.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Independent)
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According to the report, it is a ten-year lease, which is due for review in 2012. Am I reading that wrong? Does that leave some scope for movement?

Mr. Gerard Egan:

The reference the Deputy might be referring to is that the cost would be written off over ten years but, effectively, the lease, as I understand it and I can confirm this later, is for 25 years. We have a periodic rent review, which is, I think, every three years. Again, I can confirm those figures.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Independent)
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Is that upward only?

Mr. Gerard Egan:

Yes, the original agreement was an upward only rent review. Effectively, the landlord is telling us he wants to maintain the terms. It has not gone up, in fairness, but it has not gone down. I will confirm the figures.

Photo of Catherine MurphyCatherine Murphy (Kildare North, Independent)
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I thank Mr. Egan.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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If Mr. Egan could forward them, we would be grateful.

Photo of Michelle MulherinMichelle Mulherin (Mayo, Fine Gael)
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I have a few questions and observations. I refer to the time it takes the board to make decisions. I acknowledge Dr. Kelly explained the background but, generally, the delays are unacceptable. This hinges on two factors. We have a liberal regime in the context of third party appeals.

Someone in County Wexford can complain about something in County Mayo provided that he or she ticks the boxes, which is not insurmountable. In the interests of justice for the applicant, the application should be handled as expeditiously as possible.

Much of Government policy is tailor-made to encourage development and investment, integral to which is planning. Local authorities are being asked to deal with people in a businesslike manner, that is, taking account of the needs of business.

3:10 pm

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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I need to push the Deputy towards asking questions.

Photo of Michelle MulherinMichelle Mulherin (Mayo, Fine Gael)
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I will refer to energy projects that are sub-threshold for strategic development. I will also refer to larger projects, given the fact that we are trying to develop transmission lines. Support or reorganisation might be necessary. When planning is thrown into the mix, the sector often becomes too precarious for private investors. They do not know for how long they will be waiting. Time is money. The process frustrates applicants.

In my town, a potential commercial development might see a fast food business receiving planning permission if An Bord Pleanála sees fit, but those involved have been waiting since January. It is a strategic development. More needs to be done, be it in terms of making additional resources available or reorganising the process. The situation is having an adverse impact on commercial ventures that require planning permission.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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I need questions, please.

Photo of Michelle MulherinMichelle Mulherin (Mayo, Fine Gael)
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My next point might not be relevant, given the fact that not as many planning applications are in the system. The board moves the goalposts when a decision on an application is being appealed. The board tries to redesign the scheme. In my town, the board liaised directly with applicants concerning certain housing developments instead of judging what was before it. This practice is not welcome, as it removes the public from the process and could result in the board granting planning permission for developments that differ from those outlined in the applications. Interested third parties do not see and are not given a chance to comment on the redesigned developments. I would question this seemingly inappropriate practice.

As far as development is concerned, we are on ground zero compared with the Celtic tiger years and the push for zoning. This is not necessarily the board's remit, but I would be interested in the witnesses' opinions. A farmer down a road might have land that suddenly increases in value because it is rezoned. The local authority bestows the land's value on the farmer. Could this process be re-examined? If a local authority intended to rezone land for commercial purposes, for example, and acquired the land before rezoning it, the authority could sell it later. Rather than a private individual, the authority would get the value of the rezoning.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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We are trying for questions rather than Second Stage debates.

Dr. Mary Kelly:

Deputy Mulherin raised three issues. I have shown the committee the graph outlining the length of time taken to make decisions. We are not making all decisions within the statutory objective timeframe. Many of the delayed decisions either require oral hearings or are complex - for example, energy projects. It is not possible to make determinations on many strategic infrastructure developments, SIDs, within the 18-week period. The pre-application consultation is done at the behest of the applicant and it is for the applicant to declare when to close it. If the applicant does not close it within 18 weeks, time has run out. This does not always happen, but it occurs in the case of large projects. For commercial reasons, applicants choose to keep their applications live and the pre-application procedures open.

I have explained that the bottleneck is and always will be at board level. The board must make the decisions, as no one else in the organisation can. The time taken is dependent on the number of board members appointed to An Bord Pleanála. Currently, we have seven board members and the chairperson. We will return to the 90% level towards the middle of next year, but we will not achieve it this year, given the backlog. We do our best to prioritise cases when they are received. This results in some applications being deprioritised, which does not suit everyone. We have a major infrastructure appeals case list and an application must meet certain criteria to be put onto it. For example, if there is the potential to create employment, we will deal with the application as quickly as we can. Included in this category are schools, hospitals and nursing homes.

Photo of Michelle MulherinMichelle Mulherin (Mayo, Fine Gael)
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Is that list just for strategic infrastructure applications?

Dr. Mary Kelly:

No; it is for major infrastructure. Many of the sub-threshold SIDs to which the Deputy alluded would be included. Our filtering system prioritises that type of case, namely, anything that could create employment. There are a number of other criteria. I cannot comment on any particular case.

The Deputy claimed that the board moved goalposts and redesigned schemes. There are two ways to view this. Frequently, the board believes that a scheme is unacceptable as presented. The easy solution would be to refuse it permission. A more complicated solution is to write to the applicant and explain that we might look more favourably on the application if the development is redesigned along certain lines. We will not say that permission will be granted. Asking for a redesign is the better approach, which is the feedback we have received from the development community. I am unsure as to what the Deputy is referring to. If a scheme is changed, we generally require the developer to readvertise its terms and circulate the redesign to third parties. We hear from third parties concerning their opinions of new schemes. As far as I am aware, we do not usually redesign a scheme without giving someone a chance to have a say on it.

I do not have much to say about zoning. The Deputy's suggestion would be a different way of operating. The board has no role to play in that regard. As I have not given consideration to the suggestion, I will need to examine it.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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Before I invite Senator Landy to speak, I will stay on the point about the 18-week period for decisions. Later, I will talk about judicial reviews. The board is supposed to make decisions within a statutory objective period of 18 weeks. In the 2004-05 period, just prior to the peak of the property bubble, the board's success rate in this regard was 85%. While the bubble was collapsing, the success rate was collapsing to 23%. According to the 2011 figures, the rate is 81%. However, planning applications have decreased at local authority level, as has the number of appeals. The inconsistency across councils remains the same, yet the amount of work coming across the board's desk is less.

In 2010, the then Minister for the Environment, Heritage and Local Government, Mr. John Gormley, attended this committee and made a great announcement about seconding local planning officers to An Bord Pleanála to help with the backlog.

We need to differentiate between a backlog and a bottleneck. Dr. Kelly said there is a bottleneck in An Bord Pleanála, but is it a backlog or a bottleneck? They are two separate things. Both the staff numbers and the workload of An Bord Pleanála have been reduced; however, it is still not achieving the 100% target. I recognise the difficulties with strategic infrastructure developments. There can be oral hearings and so on which can run on for weeks and delay things. In respect of the "meat and veg" cases which should be able to make the 18-week period, it is worrying that this is not happening. Could assistance from planning officials in many planning departments across the country who are not busy at the moment be sought to deal with the backlog or is this something the board can meet within its existing resources?

3:20 pm

Dr. Mary Kelly:

From 2004 to 2011, the number of applications coming in overwhelmed the staff. In 2011, when we had a full complement of eight board members, including the chairman, we reached 81% at the end of the year. We were heading towards the 90% objective at that point. With a board with those numbers, we can do that again. The fact that we were down to half the board for about six months of the year meant we could only have one meeting at a time. At the moment, we are running two meetings every morning with three people each and three meetings some mornings with two people each, depending on how that two-person board works out. Since all the cases must go through the board, that is where the bottleneck occurs. Now that I have a full board again, we can get back up to-----

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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Is it more of a bottleneck than a backlog?

Dr. Mary Kelly:

Yes, it is. A slight backlog has built up. We call it a backlog. We were down to having 750 cases on hand, which was the lowest for many years. The processing sections and the inspectorate are getting through the work on time. A bottleneck is appearing because there were not enough people at board level to make determinations. We are back at that situation now and we should be able to-----

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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We will park the issue of whether it is a backlog or bottleneck. When we meet with Dr. Kelly next year, we hope to see the board moving well past the 90% figure if it is operating at an optimum level. If the board has its full complement of staff and is meeting regularly, we should be seeing a significant improvement upon 81%; the percentage should be around the mid-90s.

Dr. Mary Kelly:

Our strategic objective is 90%. I have benchmarked this figure against the UK, including Scotland and Northern Ireland. They have all set themselves a strategic objective for their organisations of 80%. In the past, we set a 90% objective because we will always have the complex cases that will drag us down. We hope to be at 90%.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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I have one question for Dr. Kelly before I bring in Senator Landy. Based on the current variables with regard to appeals coming in and the number of staff, Dr. Kelly is telling us that the difficulty in freeing up that bottleneck lies in the staffing of the board, that there is a bottleneck as opposed to a backlog and that if the board has its optimum number of meetings over the next 12 months, it would be able to hit its optimum figure of around 90%.

Dr. Mary Kelly:

We hope we will.

Photo of Denis LandyDenis Landy (Labour)
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I welcome the delegation to the meeting and apologise for having to leave for a vote. I will take up where the Chairman left off. It seems the trend is downwards. There is a quite obvious downward trend with regard to the number of planning appeals received by An Bord Pleanála. The target of 90% should have been achieved by now. I am a bit baffled by that.

What are Dr. Kelly's views regarding the efforts made by local authorities across the country to put in place guidelines assisting planning decisions in respect of wind energy and wind turbines? In some counties, a full policy document has been adopted, while in others, there are guidelines in respect of distances. In Donegal, there was a proposed distance guideline of 1 km, which was defeated. I do not know whether it was through An Bord Pleanála or in court in recent times. Local authorities spent much time putting guideline documents in place. What cognisance, if any, does An Bord Pleanála take of these guidelines when making its decisions? Where does it see this guideline issue going? If we are to believe what we are being told, we are to double the number of wind turbines between now and 2020. From the board's own reports and website, I see that it has approved 66% of what came to it by way of appeal on wind turbines. Could Dr. Kelly outline why the board approved 66% and refused 33% of these appeals?

Dr. Kelly stated that the board had received 805 notices in respect of quarries. I presume they are queries of some shape or form. The board has dealt with 325 of these to date. From talking to staff in local authorities, I know they are extremely frustrated that decisions on these are not coming out fast enough. There have been no discussions between An Bord Pleanála and the staff of local authorities on how staff should interpret section 261(A) of the legislation. What proactive work does the board do when new legislation appears to consult with local authorities so there is no mix-up in the interpretation with regard to decisions pertaining to this legislation? It seems amazing that we are dealing with planning legislation, primarily the Planning and Development Act (Amendment) 2010, yet the board overturns 30% of decisions made by local authorities. It should be pretty clear that the legislation is there and the local authority adheres to this in making its decision. Yet in one in every three cases adjudicated by the board, it overturns the decision of the local authority. I am a bit concerned about that and would like some clarity.

My final point concerns communication by the board as an adjudicating board on decisions made by local authorities. It does not appear to have any liaison with them or have any communications on new legislation. As a layperson, I would have thought that when legislation appears, they are the first port of call for the applicant and the board would give them clear guidance as to how it interprets that legislation. A local authority that is well known to the Chairman - I will not name it - voted 27 to nil against a material contravention and the board overturned the decision of the local authority members.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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We will be naming it. I am just waiting for it.

Photo of Denis LandyDenis Landy (Labour)
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I was told by a member of that local authority today that it voted 27 to nil against the material contravention and the board overturned its decision. We need an explanation.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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I will deal with that issue towards the end of the meeting. I am trying to deal with the macro issues now and we will deal with the local issues later on.

Dr. Mary Kelly:

A range of different issues were raised. Most local authorities have very good examples of wind energy strategies. The guidelines that have appeared are ministerial guidelines on wind, to distinguish the two types, but I think we are talking about the same thing.

Photo of Denis LandyDenis Landy (Labour)
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Local authorities have their own sets of guidelines in some instances. They have adopted their own documents as elected members of their local authorities.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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The question is whether they have a statutory function.

3:30 pm

Photo of Denis LandyDenis Landy (Labour)
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They do not, but I am asking what cognisance is taken.

Dr. Mary Kelly:

We find when we are looking at wind energy that most of the local authorities have very good wind energy strategies of which we take account. We find them very helpful in delineating the parts of the county where wind turbines are acceptable and where they are absolutely unacceptable. Many counties have a large part designated as "may be acceptable", which involves considerable interpretation. However, the board uses them all the time when considering wind energy. Part of an inspector's report will always outline the local authority's strategy and how proposal fits within it.

There have been ministerial guidelines on wind energy - I believe since 2007 - and we have to take them into account. As I said in my presentation, the board needs to balance all these things out. I am not aware of the board having decided anything about distances of 1 km in the Donegal case the Senator mentioned. When appeals come to us, as a quasi-judicial body we need to consider both sides. We need to look at the developer's proposal and the appeal made by any third party. Each case is different. Very often with wind energy projects, many residents who feel that noise, shadow flicker and various disamenities that come with being close to a wind turbine would be extremely onerous on them. We need to balance that against the submission of somebody who wants to develop a wind farm.

Regarding overturning planning authorities' decisions in this area, our decision making is the same as with any other appeal. We need to give a very good reason for overturning them. I cannot give a general answer because each case is specific - I am not trying to avoid answering the question. The issue can relate to a visual amenity, a residential amenity or proximity to an SAC. There is always a specific reason for rejecting any development and wind farms are no different from any other development in that regard.

Photo of Denis LandyDenis Landy (Labour)
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I asked some questions about quarries.

Dr. Mary Kelly:

I am coming to the quarries. I was trying to deal with the wind energy projects. On quarries, the Department has a function as defined in legislation. We have participated in many seminars and meetings on quarries under the aegis of the Department. We are in the process of organising an open day seminar for quarry proposers later this month. There is no mandate for us in the Acts to have a communications role and as a quasi-judicial body we must remain independent. We cannot tell people they will get permission if they do X, Y and Z when we know that third parties can come in and very often raise very important points which we must take into account at that stage. It is difficult to engage like that. The Department of the Environment, Community and Local Government is really the body that is charged with developing the legislation and explaining that legislation to people including to us and we have participated in quite a number of those.

I am not aware of the case which is the subject of the Senator's last question. As I said at the beginning, I do not believe it is appropriate for me to comment on individual cases.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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I call Deputy Kitt and ask him to focus on questions, as another group is due to appear before the committee later.

Deputy Michael Kitt:

I welcome the representatives of An Bord Pleanála. Many people have asked questions about wind farms and I will not go back over that. I have a question on proposed ESB and EirGrid projects for the west coast. Are the existing guidelines for keeping away from schools, housing estates and places where people gather still important to An Bord Pleanála? Those in County Clare would have much to say about how the lines were erected there and I am concerned about the same issue in County Galway. I have no complaints about what is happening and what I think is happening, but in County Clare people still talk about serious illness regarding schools.

While I very much welcome what is happening with retail development, there are some concerns about out-of-town developments. Are there cases where developers and those with objections are very close together on parking and park and ride facilities? In some cases individuals, communities and bodies such as an Taisce have been advised to withdraw their objections or else there will be no further progress. I would hope it would be possible to get people together to discuss these issues and ascertain if retail development can blend in a town centre rather than always having it outside a town.

Dr. Mary Kelly:

The Deputy has two separate issues. We are aware that there are pre-application consultations on energy projects on the west coast - we do not have that before us at the moment. There are no mandatory distances from schools, hospitals, etc. However, from the proper planning of that kind of infrastructure, we would do our best to ensure those projects are done according to proper planning and sustainable development. That would entail having proper consultations with people and ensuring having the least disamenity if there must be a disamenity to people. We are very conscious of that with energy projects.

There are many energy projects at the moment because of the strengthening of the grid. Everybody from a development and ordinary point of view wants to have the grid strengthened in order to bring industry in and to allow wind energy on to the grid. On the other hand many people do not want wires or pylons near them and a balance needs to be struck. We examine each case very carefully and try to move them as far away from houses as we can. However, there is no mandatory requirement. As the Deputy knows, the population is quite dispersed and it is very difficult to find anywhere with no houses. I assure the Deputy that we try to do our best in that sense.

From what I have seen since I joined the board just over a year ago, we are very careful to look at sequential development and to ensure where we can that retail development is in the town and that a logical sequence is followed. I am not aware of too many out-of-town developments that have been approved recently. In general, the board likes to see retail developments in towns where there is proper public transport and people can get to and fro. Sometimes at oral hearings people are able to come to agreement when the proposer and the objectors talk. That can be one of the advantages of having an oral hearing but sometimes there is no agreement between them. I am not really aware of what the Deputy said about withdrawing objections. We certainly have not seen many of them withdrawn - it is not a trend we have noticed.

3:40 pm

Photo of Caít KeaneCaít Keane (Fine Gael)
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I welcome the board members, particularly Dr. Mary Kelly. I am looking forward to great things in An Bord Pleanála because she left a great legacy behind her in the Environmental Protection Agency, EPA. I congratulate her on that and I look forward to her having much the same history with An Bord Pleanála.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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Does the Senator have a question?

Photo of Caít KeaneCaít Keane (Fine Gael)
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Will Dr. Kelly do as well with An Bord Pleanála as she did with the EPA?

Photo of Kevin HumphreysKevin Humphreys (Dublin South East, Labour)
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How will that be benchmarked?

Photo of Caít KeaneCaít Keane (Fine Gael)
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The staff was reduced from 182 to 146, or by 20%, and applications have decreased by 28%. I know the rates cannot be reduced man for man but will there be a further reduction because applications are going down? A question was asked regarding quarries and I will not dwell on that. However, there is the issue of disused quarries and change of use applications. I presume this would come under the habitats directive and is similar to the quarries directive.

The amending planning development Act made a change to the number of people who can make a decision and this system is being used to get rid of the backlog. A local authority may have a planner, assistant planner, people involved with roads, housing and communities, and each department has an input. How can two people on the board make a similar decision? There must be criteria on how the decision is made. Two people are making a decision where seven or eight people have made the decision before them.

With regard to decisions confirmed by An Bord Pleanála, the best in the class was Kerry; I will not name the worst but it is in the report. The reversed decisions are documented, including the best and worst offenders. Does the board take note of the local authorities performing well and the criteria being used or those which are performing very badly? There is a significant discrepancy. Some 75% of the relevant decisions were reversed in one county and only 11% are reversed in another county. A teacher in a classroom with pupil performance as diverse as that would pose the question of where the process is going wrong.

The rate of reversal appears to be the same, more or less, every year. There is the question of whether a certain mark has to be hit but I do not presume the board could operate in such a way. The same question applies when we see the percentage of failures in a leaving or junior certificate or the number of pupils getting an A, B or C. I would not expect the rate of reversal to come out the same every year, more or less, as there should be differences.

The highest level of legal expenditure was in 2011 and it was even higher than it was in 2007. As the number of developments has decreased, I would have expected this expenditure to have gone the other way. I am only going on the information put on screen and I presume the figures are in the report. I would like to see them and the reasons for the high expenditure. The same applies to other expenditure figures. We can consider pay expenditure compared to total expenditure and non-pay expenditure. It has increased since 2007, although I would have expected it to go the other way. Why is the number increasing?

I will not dwell on pre-application consultations.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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We are under time pressure as there is a delegation from Canada coming later. If the Senator is not going to comment on certain issues, please move on to the next question.

Photo of Caít KeaneCaít Keane (Fine Gael)
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I will comment on it then as it is important.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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The Senator has indicated she does not want to comment on the issue so please move to the next subject.

Photo of Caít KeaneCaít Keane (Fine Gael)
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It is important, when we have representatives of a body like An Bord Pleanála before the committee, that we get all the answers we need rather than having to write to the board or come back again to the issue. Pre-application consultations were mentioned by Deputy Mulherin and others and I agree with those comments. Is the process universally applied across the country or are there differences between counties? Everybody has the right to it but does the board notice in its study of applications that some counties do not have such meetings or only a few of them? Perhaps the decisions are not as good as they should be if everybody had a pre-application consultation?

Photo of Kevin HumphreysKevin Humphreys (Dublin South East, Labour)
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I welcome the delegation. I compliment the inspectors for the courtesy they show, especially during oral hearings. Over the past ten years I attended several of these and the professionalism shown by staff has been excellent. The board should be very proud of the way they treat the public, especially people without expertise in planning. They give time and consideration in hearing their viewpoint, which is very important. In saying that, I may not have always agreed with the decisions made.

Government policy is part of the decision and there are certain targets set by the Government. Where is that balance in the process? An Bord Pleanála is 15% self-financing but is there any reason this cannot be increased to 20% or 25%? Is there any logical reason An Bord Pleanála cannot be more self-financing? It has been mentioned that there has been a drop in the number of determinations by approximately 26%, with only a 6% drop in the budget. It works out at about €4,000 per case. Are there other areas available between now and the end of next year where there can be further savings within the budget? Salaries and allowances add up to approximately €9.2 million. I know there is a certain core cost in running An Bord Pleanála that cannot be dropped but could there be further savings on salaries, allowances and operational costs before the end of next year?

Dr. Mary Kelly:

I thank Senator Keane for her kind words and I hope I will have a good outcome with the board. As Deputy Humphreys noted, this is a very professional staff which has given a very good service over the years, despite the impression given by timelines. We hope to move the process along.

The members asked about a further reduction in staff numbers. Staff numbers have decreased by 20% since 2008, and at that time 50% of cases were being determined by fee per case inspectors. We are not using that process at all now, so all the case work coming to us is being done by in-house inspectors. It is not only that our staff numbers have decreased by 20% but we have also completely stopped using fee per case inspectors. There were approximately 150 such inspectors on the books at various stages at the time, so a massive amount of work has been taken out. That is why there has not been as significant a drop in our core staff.

I do not foresee a further reduction in staff and I hope that will not be the case. The employment control framework for 2012 required us to lose 16 staff between March and December and we have just about accomplished that. It will probably be done by the end of the year. We must consolidate at that point and I do not foresee any further losses.

I do not envisage any further losses happening there.

I will answer Deputy Kevin Humphreys on whether we could be self-financing, while I am on the subject of whether our salaries and allowances go down. It will speed things up a little. As I said, I do not think we can lose any more staff or that the salaries can go down. That is the baseline. I do not see any further savings. Since I joined the board I have been amazed at how little money we spend on operations compared to the organisation I worked in previously. There is very little discretionary spend in An Bord Pleanála. Everything is really cut to the bone. There might be small amounts here and there but I do not see a major reduction.

In terms of trying to become self-financing or moving in that direction, we could do that but the balance is whether we would discourage development completely if people were not able to afford to come through the process. With strategic infrastructure development, for example, there is an up-front fee of €100,000 to put a strategic development to the board. If the board does not use all that money it gives a refund, but we are talking about that ballpark figure in terms of a costing. If that was increased to €200,000, people trying to develop wind farms or other strategic infrastructure would not be very happy. Similarly, our appeal fees are set at a particular level, but those involve ordinary people in ordinary houses appealing cases. I do not believe it would bear much of an increase.

3:50 pm

Photo of Kevin HumphreysKevin Humphreys (Dublin South East, Labour)
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There is a difference between a once-off development, a small extension or house and a major development. Local authorities do not get the true cost of examining a large development planning permission application. I am trying to differentiate between an extension to a house and a shopping centre or major housing estate development to get some type of reimbursement for the time and cost of examination. The 15% on larger developments appears to be low.

Dr. Mary Kelly:

I will not answer the Deputy on that now. We could have a look at it. There is a gradation on the developments but I would have to go back and see what it is. However, we can have a look at that.

Photo of Michelle MulherinMichelle Mulherin (Mayo, Fine Gael)
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Dr. Kelly responded to my question relating to the board's liaison with applicants directly and she referred to third parties who have made objections or submissions being notified if there is a redesign of a development. However, there are still interested parties who would not be notified. In my experience, adjoining landowners who had no objection to an initial application as it was presented to the planning authority and therefore did not object could find that where there was a substantial redesign they were not made aware of it. There is not as much development taking place now but natural justice requires that adjoining landowners should be notified if there is a substantial redesign of a site as a result of negotiations between the board and applicants. Otherwise they are not being given a chance to make a contribution or to note their concerns so that their interests can be fully taken into account. They should be entitled to that. Can the board do something about that?

Dr. Mary Kelly:

I believe we are doing something about that, although I am not aware of it happening at all. We must decide if a change is material. If it is, we require the developer to re-advertise the new development and we accept more submissions. The Deputy clearly has a case in mind but from the point of view of the board we also feel that natural justice would not be served if there was a material change and somebody who did not object in the first place then discovers something completely different was being done. To my knowledge, that does not happen in the board. We decide if the change is material and then ask the developer to re-advertise what is effectively the new plan. We give people a chance to come back with new submissions and we consider them. That is our policy.

Photo of Michelle MulherinMichelle Mulherin (Mayo, Fine Gael)
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The difficulty there is that the board has already made a decision as to whether it is a material change. It is entitled to do that, but it puts the landowner out of the loop. The board might decide it is not material but it could be argued that it is material and the landowner does not have the benefit of any notification.

Dr. Mary Kelly:

My experience over the year is that we are usually very conservative in that regard. I sit at board meetings every day where people discuss whether something should be re-advertised and generally the decision is to advertise. Natural justice is taken into account every day at every meeting of the board. I am surprised to hear Deputy's impression.

Photo of Kevin HumphreysKevin Humphreys (Dublin South East, Labour)
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Dr. Kelly did not deal with my question about Government policy.

Dr. Mary Kelly:

That is a big question.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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Deputy, I will take all the questions together. The Deputy asked that question and there are other members indicating their wish to speak. Dr. Kelly will take it when she is wrapping up.

Photo of Marcella Corcoran KennedyMarcella Corcoran Kennedy (Laois-Offaly, Fine Gael)
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I thank Dr. Kelly and her team for appearing before the committee this afternoon. I have a couple of questions. One relates to the type of objection the board regularly receives. Can she clarify whether there is a distinction between third party appeals and observers, or are they both the same? Are there serial objectors? It appears on occasion, particularly with regard to large infrastructure projects, that the same faces turn up to object, at least to my eye. Is that something the board has encountered?

In respect of strategic infrastructure development, can Dr. Kelly give a little more detail on how the pre-application consultation takes place and how the board reaches out to the community? I sometimes feel the planning process is very academic for the ordinary person. If a development is planned in an urban area, a planning application appears in a newspaper or in a newspaper in a different part of the country in a little advertisement that is discreetly placed where people are not meant to see it, but it is in a public place. Does Dr. Kelly believe there is room for reaching out more to people? In other countries, for example, I have seen lampposts carrying large signs asking people if they have any opinions on a development, even if the development is on the other side of the road. People are actually invited to voice their opinion. We have to get a balance but the system at present appears to be more weighted in an academic sense rather than reaching out to people.

My other question relates to decisions that have been overturned. How many of those relate to section 180, where perhaps the local authority would have made the decision against the recommendations of the planning office?

My last question is about foreshore consents. Does that just apply to coastal areas or is there any reference to inland waterways? I live in the Shannon basin. Is there a reference to that?

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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Perhaps Dr. Kelly would deal with Deputy Humphreys's question. I and Senator Landy will ask a supplementary question afterwards.

Dr. Mary Kelly:

I will reply to the first part of Deputy Humphreys's question. Yes, we must take account of Government policy. Obviously, the Government sets policy on various things. How we do it is a very big question. Let us take the wind energy example. If the Government has a policy to be in favour of a particular thing, we will look more benevolently on it than if that is not the case. We must have regard to the Government policy but that does not mean we must slavishly follow exactly what is in it. We must consider it. We must inform ourselves about what the policy is, what effect it would have on the development and whether the development fits into it.

Let me give an example. If Government policy states that we must generate 20% of energy from wind farms, it does not mean that every application for a wind farm must be granted. We know the Government has a policy to encourage renewable energy and we must try to ensure that the Government policy is ultimately carried through but that it is achieved within proper planning and sustainable development. It is developed in the areas where it should be.

4:00 pm

Photo of Kevin HumphreysKevin Humphreys (Dublin South East, Labour)
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Thank you, Dr. Kelly.

Dr. Mary Kelly:

I have a list of questions but I may not have listed all the questions. I have been asked whether third parties have more rights than observers. Yes they do and let me give an example of one key difference. If a third party submits an appeal but then withdraws it, the observer has no more standing in the debate. That is a stark example of the difference. There are many other differences including what one is allowed to do at oral hearings.

We cannot call anybody a serial objector. We must take every objection as it comes.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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Main objectors?

Dr. Mary Kelly:

People may object to more than one application but they may still have a very good point. In fairness An Bord Pleanála must treat every objection on its merits. We do that.

It is the case that Ireland has a very open planning system and it is much more open than most European countries. Many European countries do not have any third party right of objection at all. In the North, the UK and Scotland, there is no third party right. The only people that can appeal to appeals board in those countries are the first party, the developer, the promoter of the project or whatever. In many European countries the right of third parties does not exist either. They may have other ways into the consultation process at an earlier stage. In general we have an incredibly open planning system,

In terms of outreach, I would need to have a look at what the Deputy is referring to. It may very well be that the promoters are seeking submissions in terms of asking for people's views. I would not know unless I had a look at the matter. I can assure members that we have a very open system.

On the question of foreshore, it does not extend to the River Shannon. It is a foreshore high water mark and a low water mark. Overturning section 180 is seldom done in cases where it is done at all.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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I wish to bring the meeting to an end before we are called for a vote. Judicial reviews are prohibitively expensive, with the cost for an individual, an organisation, or a council running into hundreds of thousands of euro. It is critical that An Bord Pleanála gets its decision right in the first instance. When a council has refused planning permission on the grounds that the development would materially contravene the development plan, is there a significant difference between refusing planning permission on the grounds of materially contravening the development plan and contravening policies and objectives?

Dr. Mary Kelly:

Yes there is. If the planning authority's letter of refusal states, "a material contravention", then the legislation requires An Bord Pleanála, as I set out earlier, to look at four specific criteria, the first of which is that the development must be strategically important. I have the four criteria listed on the PowerPoint presentation.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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They are that proposed development is of strategic and national importance; conflicting objectives in the development plan; permission for opposed development should be granted having regard to regional planning guidelines in the area; and permission for proposed development should be granted, having regard to these criteria.

Dr. Mary Kelly:

If there is a material contravention sighted, we can only overturn that on the basis of the four criteria that are set out in the PowerPoint presentation. It is a more stringent requirement.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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Would an An Bord Pleanála's view of a decision of a local authority be based on whether the local authority's decision was based on a material contravention or that the development would contravene the policies and objectives? Would An Bord Pleanála take a very distinct view on it?

Dr. Mary Kelly:

An Bord Pleanála is required to take a distinct view.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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If a council refuses a development. An Bord Pleanála looks at the council's reasoning for the refusal and because a material contravention is distinct from a contravention on policies and objectives, would it approach therm from a different perspective?

Dr. Mary Kelly:

It a bit difficult to be black and white in the abstract.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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I can be very specific if Dr. Kelly so wishes but I understand that she cannot answer me in the specific.

Dr. Mary Kelly:

We must look at each case on its merits. When an appeal comes in to An Bord Pleanála, we decide to look at it de novo. We look at the case on the merits of the case. If the planning authority has decided to refuse permission on the grounds of a material contravention we must have regard to the four criteria in reaching a decision.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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If An Bord Pleanála is faced with a situation where the local authority has voted once or twice with regard to material contravention and has protected the city development plan by not rezoning an area, the board's interpretation of that development is on the grounds that it "contravenes policies and objectives" and is not a material contravention. Is there a possibility that an error could be made in terms of how the council worded its letter refusing the permission, in not adhering to the facts, that could facilitate a re-examination of the judgment by An Bord Pleanála, or does it have to go for a judicial review for that to be smoked out?

Dr. Mary Kelly:

I am not really sure that I understand what the Chairman means.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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Let me be specific. Cork City Council voted unanimously on a number of occasions with regard to a development in Cork city. The application was refused by Cork City Council and the decision was appealed to An Bord Pleanála. An Bord Pleanála gave a ruling that the development could go ahead. I can see the reason that the development would go ahead because An Bord Pleanála operated on the basis that the development was possibly in contravention of policies and objectives but it looked at the greater good of the area. However, in this case the planning application was an actual material contravention of the development plan. It was not a contravention with regard to policies and objectives.

Dr. Mary Kelly:

I understand what the Chairman means. I do not want to talk about that particular case. To speak in general terms, it may be that the board, under certain circumstances, would decide that it was not a material contravention, having examined the bigger picture. That is open to An Bord Pleanála to do. We may have decided that it was not a material contravention and therefore we could overcome it. I cannot answer the Chairman on the specific case he raised. I am not aware of that case.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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I will not push Dr. Kelly on that case. A difficulty with that case is that the local authority would have to go for a judicial review, at a significant cost, to try to reverse the decision. Should we consider providing another mechanism to appeal a decision of An Bord Pleanála in place of a judicial review?

What consideration has been given to a planning ombudsman? The term "planning czar" was put out there and I am in favour of it as a verbal concept. I refer to some other approach where there is a determining process other than a judicial review because of the costs that arise from the latter.

4:10 pm

Dr. Mary Kelly:

The legislation only provides for judicial review. I had not been in An Bord Pleanála for that long and, in my time, we have not examined another layer. Adding another layer creates another layer of delay. If people can appeal to An Bord Pleanála, they do so. If they can appeal to a higher court, not necessarily a judicial review, they will probably do so if it is affordable. We can keep the process going and it will achieve further lengthening of the planning process and will create further uncertainty for planners and objectors in that one is never at the end of the process.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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There is a difference between appealing and reviewing. The Department of Social Protection has an appeals process and a review process, with a significant difference between the two. The appeals process is where one re-enters the entire process, like going from a local authority to An Bord Pleanála, and the review process is where one considers whether someone has taken cognisance of all of the information. One is not requesting new information, as in an appeals process.

Without focusing too specifically on the case I mentioned earlier, that process has merit in such cases. We are saving the taxpayer from a massive hit with the judicial review. The taxpayer pays money on one side or the other, in that the taxpayer is either paying the council's bills or the bills of An Bord Pleanála. It saves the taxpayer a significant amount of money and it allows us to examine matters that may be material contraventions or contraventions of the development plan and to sort the matter out. We can see whether full cognisance was taken of particular matters.

Dr. Mary Kelly:

Without seeming to avoid the question, it is not a matter for the board whether such a review takes place if the Oireachtas decides to do so. I am not aware there are a major number of these cases. The case to which the Chairman refers seems to be current.

Photo of Ciarán LynchCiarán Lynch (Cork South Central, Labour)
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Sometimes matters in the committee are more important than what takes place in the Chamber.

I thank the witnesses from An Bord Pleanála for appearing before the committee and I wish Dr. Kelly well in her post. I hope Dr. Kelly and the board have a number of productive years. I welcome the presentation made to the committee.

Sitting suspended at 5.15 p.m. and resumed at 5.25 p.m.