Oireachtas Joint and Select Committees
Wednesday, 6 February 2019
Joint Oireachtas Committee on Housing, Planning and Local Government
An Bord Pleanála: Discussion
At the request of the broadcasting and recording service, members and visitors in the Public Gallery are requested to ensure that for the duration of the meeting their mobile phones are turned off completely or switched to airplane, safe or flight mode, depending on their device. It is not sufficient to put phones on silent, as this will maintain the level of interference with the broadcasting system.
No. 6 on the agenda is an engagement with An Bord Pleanála. I welcome Mr. David Walsh, Ms Loretta Lambkin and Ms Rachel Kenny.
Before we begin I draw the attention of the witnesses to the fact that by virtue of section 17(2)(l) of the Defamation Act 2009, they are protected by absolute privilege in respect of their evidence to the joint committee. If, however, they are directed by it to cease giving evidence on a particular matter and continue to so do, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person or an entity by name or in such a way as to make him, her or it identifiable.
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, either by name or in such a way as to make him or her identifiable.
On behalf of the committee, I wish Mr. David Walsh well in his new role. He has only been in it three months. He brings vast experience to it. I wish him well in this new endeavour. He is greatly missed on the other side but I know he brings vast experience and expertise to this area. I invite him to make his opening statement.
Mr. David Walsh:
I thank the Chairman and committee members for this opportunity to appear before the committee early in my term to discuss some of the important work the board is doing and to highlight some recent progress and priorities for the coming year. As the Chairman mentioned, I am joined by Ms Loretta Lambkin, chief officer, and Ms Rachel Kenny, director of planning. As I have only recently taken up the post of chairman, with the committee's indulgence, I will defer to my colleagues to answer questions that may be posed, which they may be better placed to answer.
The board is well aware of its critical role in considering and determining planning appeals and major housing and infrastructure proposals, and we remain fully committed to delivering decisions as quickly and effectively as possible. The national planning framework, NPF, and the emerging regional spatial and economic strategies set a clear priority for appropriate development in the right locations to facilitate the sustainable and orderly growth of our cities, towns and rural hinterlands, and the board has a clear role in implementing such policies through efficient processing of case decisions. In a constantly evolving and more complex legislative and legal context, where environmental issues and public participation are to the fore, it is also crucial that the board has all the information it needs to make sound decisions and gives people time to feed in their views on proposals during the deliberative process. This reflects our core principles of integrity, independence and fair-mindedness.
To give the committee a little background on the organisation, the board currently has 159.5 whole-time equivalent staff and ten board members. The Minister and the Department have been supportive in approving recent resource requests, in recognition of the increased demands and complexity of the cases that are coming before the board, including in regard to strategic housing developments, vacant site levy cases and major infrastructure projects, as well as the forecast increase in case intake that we expect during the coming years. We are currently undertaking a workforce plan to assess our future capacity to deliver on our statutory mandate in a timely manner and we will shortly write to the Minister identifying what we see as the core resource requirements to maintain and improve our performance.
While it is acknowledged that the board’s capacity and performance to meet our statutory objective period of 18 weeks has been impacted by the transition to our new IT system called Plean-IT, the increased intake and caseload as well as the fallout from reduced board capacity in the past, we have made strong progress to turn things around in recent months. In 2018, we recorded a 32% increase in the number of cases decided over the previous year, with more than 2,800 decisions made. In November and December alone, we decided almost 600 cases, which was up 36% on the same months in 2017 and helped to reduce the number of cases on hands by more than 300 from the level of 1,355 to just more than 1,000 files currently. This great push and effort reflects the commitment of our hard-working staff and board to get to grips with the backlog generated and deliver robust decisions as efficiently as possible.
In terms of meeting our 18-week statutory objective period for deciding normal planning appeals, we are aware that a 40% rate is not where we want to be but, equally, the priority and focus for me in my first few months has been to process and decide the cases longest with the board, which has meant that many of the cases determined in the past three months were beyond the 18-week period. This has had a knock-on consequential impact on our percentage compliance rate, but we have a clear plan in 2019 to clear the backlog during the first half of the year and get back to a compliance rate of 80% plus by the end of the year.The compliance rate for appeals decided in December had improved to almost 50%.
The board’s performance with respect to strategic housing developments has been strong, with 39 cases decided during 2018, all well within the 16-week target. Overall, the board granted planning for more than 7,100 housing units and almost 4,500 student bed spaces during 2018, which is a vital contribution to the overall increase in residential activity. We expect a significant increase in housing applications in 2019, reflecting the ongoing demand for pre-application meetings. We have 19 applications up for decision in the next three months, which have the aggregate capacity to deliver approximately 4,170 residential units and more than 1,750 student bed spaces. We will continue to prioritise these cases and deal with any large-scale housing appeals expeditiously.
During 2018, An Bord Pleanála prepared a five-year strategic plan with four clear goals, namely, to protect and enhance our reputation for independence, impartiality, integrity, trust and transparency; to make robust, timely and high-quality decisions that support proper planning and sustainable development; to improve our service to meet changing customer expectations; and to foster a motivated, resilient and responsive organisation. While this is a five-year strategy, we will prioritise a number of initiatives and actions in 2019 to help realise these objectives and set us on the right path. High among these priorities is the roll-out and refinement of our Plean-IT project, which will ultimately enable applications and appeals to be made online, linking in with the local authorities' own e-Planninginitiative. This year will also see the development of a new website to make it easier to find information and a separate web portal through which online appeals and applications will ultimately be lodged. Furthermore, in light of the likely increase in strategic infrastructure applications, I am also prioritising a review of our processes, including our pre-application consultations, to learn and apply lessons from our own and participants’ experiences in the past and to identify ways to streamline and ensure that we are operating as efficiently as possible to facilitate robust and swift decisions.
As the largest planning body in the country, with exposure to a wide range of case types and issues, it is also incumbent on the board to support the Department, planning authorities and the new Office of the Planning Regulator, OPR, to ensure planning policies are practical, consistent and clearly understood by all.
The board provided practical, helpful advice to the Department on the establishment of the strategic housing development functions in 2016, and I believe that we can also contribute to shaping and informing new policies and legislation to improve everyone's understanding of the planning code and ensure a consistency of approach across the country. I am conscious that I am taking up members' valuable time to raise particular issues so I will leave it there. We are happy to take any questions. I have included a couple of summary graphs with my statement that give members a sense of the type of cases we deal with and also the level of activity in recent years.
I thank Mr. Walsh and his staff for coming here and I wish them well. I thank him for his presentation which was circulated to us yesterday, and which I read in detail. I will pepper a few questions with comments and he might take them as he sees fit.
I acknowledge that An Bord Pleanála is independent. Its independence and impartiality are important. It is a participant in the process. Encouragement, engagement and transparency are also important in this two-way process. Some people in the public domain feel that sometimes the board is not impartial. The board does not help itself and concerns can be raised when it gives a very summarised version of how it reports its activities and, in particular, its findings. There will always be a certain amount of tension in a system. I will go through the issues as I see them. We are conscious that it is about planning, sustainability, making better communities and there will always be tensions.
An Bord Pleanála has a statutory 18-week process for making a decision but the time taken has been poor in the past. I took the time to look at Mr. Walsh's predecessor's previous three annual reports. They refer constantly to striving to increase compliance with the statutory obligation of 18 weeks. Clearly, the board has addressed that and it is going to work on that but it is of major concern. We have heard large developers talking about their frustrations with the process. If someone is building an extension or a cottage in the west, the board still needs to comply with the key statutory objective of 18 weeks.
Could Mr. Walsh detail the Exchequer income, which is the principal source of funding, and other sources of funding that the board receives? I am aware of the amount the board received in 2018 but how much was budgeted for An Bord Pleanála for 2019 if the figure is to hand? If not, Mr. Walsh could come back to us with it.
His predecessor talked about an independent review in 2016. The review began in 2017 and it made a substantial number of recommendations, which I looked at. Some of them have not been implemented and there may be good reason for that. Others have been implemented on a staged basis. One key recommendation related to how the board itself is appointed. How is that progressing? If the information is not available today, Mr. Walsh might furnish the committee with an update on the review. If he considers it appropriate, he might talk to us about that.
On resources, is the board equipped to successfully meet the increasing challenges in terms of its expanded remit and competence and the demands on it, effectively, by the Government? I am mindful, in particular, of Rebuilding Ireland and the board's commitments in that regard. The board has not delivered on all its targeted commitments in the plan. If one does a word search for Rebuilding Ireland in the five pillars, one will see all the commitments there. I suggest that at some stage it might be helpful for this committee if we look back at all of the key objectives the board was tasked with. There may be good reason they are not happening. Mr. Walsh mentioned e-Planning and there is another similar process. Three or four guidelines have been missed, but the board was doing a pilot scheme. However, it might be a good exercise to look back at the responsibilities An Bord Pleanála was tasked with under Rebuilding Ireland.
The board's information and communications technology, ICT, strategy is important in terms of how it will engage more with the public and provide platforms. It is important where there are large planning applications, especially outside Dublin, because people do not have the same access to the board. I will leave it at that. I think Mr. Walsh knows what I am talking about.
Litigation has become a major issue. This was identified by Mr. Walsh's predecessor as well. Mr. Walsh may have seen "Prime Time" last night. There has been much negative comment about Ministers, Deputies, county councillors and various other representative bodies in respect of their interface with the planning process. I do not believe we should apologise as public representatives for engaging in the planning process. We have a representative role. It is right, proper and appropriate that public representatives make representations on behalf of their constituents. However, it must be open and transparent and there must be a mechanism for the public to see those interfaces with the planning authority. That is worth saying because it came up last night. The Sunday Independentcarried a major story that implied politicians were all over the place frustrating the planning processes. If the system is robust enough, correct and full of integrity it will withstand challenges, which is all they are.
I wish to draw the attention of witnesses to three or four more issues but I will not comment. This is a very interesting case, namely, Connolly v. An Bord Pleanála.
The Chairman will be delighted to learn this is not a live case. It has been completed. This was a planning case. The board's decision was overturned and it was appealed to the High Court. I will not go into more detail. The board lost and it then went on to the Supreme Court and it also lost there, which is most interesting. I have the judgment here. Much of the expenditure was incurred by the board, but that is its prerogative, and I respect that. We must be careful because we have a situation now where there is no appeal system for any development of more than 100 houses. Unfortunately, because of the Government's arrangements, Rebuilding Ireland and the priorities of the Custom House, there are no appeals for major planning applications. The first appeal is to the board and then applicants go from the board to the courts. The courts, therefore, are becoming the arbitrators of planning policy. That should be of concern to An Bord Pleanála, the public and to us because of the significant costs attached. There is also significant exposure for the board. It is not a nice place for anyone to find themselves in and, in particular, it is not a nice place when there is a lot of money involved. I am happy to send on the details if anyone wants a reference for it but there are lessons to be learnt from that case and the vast costs incurred by the board.
Could Mr. Walsh comment on the conflict in contravening local county development plans? That is a source of great annoyance to local councillors. They agree county development plans. It is one of their most significant powers and functions and then the board overrides them. What is more frustrating is that the board sometimes makes a determination on a planning application where its inspector has decided that it should not go ahead but the board then overturns the decision of its inspector. I understand the board and the inspector have roles but they need to communicate because there are concerns.
I refer to the Dún Laoghaire cruise berth. It is not a live application. I do not wish to go into it but when I looked at the website this morning, I had no better idea what was happening. There is no clarity on the decision. Much of it is about messaging. I know I have said a lot. I am supportive of the board. I recognise its independence but it is important to communicate messages. I am especially interested in how its member are appointed. Are there currently vacancies on the board?
Mr. David Walsh:
I thank the Senator very much. I appreciate his comments and support. I will try to deal with most of the issues, and Ms Lambkin and Ms Kenny might step in on elements of them.
I am very impressed with the calibre of people both on the board and throughout the organisation. When one comes in with a fresh perspective, it is always good to test and review what is there and to see how, as Chairman, one can add value and further improve. Communication is hugely important, both internally within the organisation and within the system from local to national Government, but also in respect of stakeholders and members of the public. The system we operate at the moment in terms of how we make information available and how we justify and explain the rationale for our decisions is constantly evolving and improving. We can always make things clear by the use of plainer English but we work in a complex legislative and legal context so there is some legalese that we must reflect in our decisions but, equally, we are working through making that information available and accessible on an improved website.
The Senator raised the issue of the strategic objective period of 18 weeks. We have made progress on that in recent months and will make more progress over the next six months. The reason we are still in the low 40s is that we have taken a conscious decision to deal with the oldest cases first and to make sure that people are not waiting any longer, whether it is for large scale applications, an extension to a house or whatever it might be. The efforts of the board and the entire organisation have been focused on prioritising those applications. We are working through them and many of the older cases have now been dealt with and addressed. Over the course of the next three to six months, we will see the percentage going back to where it needs to be. There will always be cases that require further information or even an oral hearing. It is a challenge to say that every single case will be addressed within 18 weeks but certainly we would expect to be back to where we were in the last three or four years, where we were hitting 80% to 85%. That is the target we are setting ourselves for the end of 2019. I recognise that people also need to understand this and have those dates communicated to them. They need transparency in terms of when to expect a decision if we are not meeting the 18 week target.
We do not have Exchequer income in our budgets for 2019 just yet but I am happy to communicate that when we get it. We have communicated to the Department what we feel is required in terms of our capital and current spending. We continue to engage and communicate with the Department and I would-----
Mr. David Walsh:
We have had to wait for confirmation of our budget line. In terms of how it is spread out, we have set out our case and continue to have sufficient comfort that what we are doing will have the resources required. We expect to have both existing resources and additional resources, if required under the workforce plan that we are undertaking. We believe that we will be pushing an open door in that regard.
On the independent review, I was involved in that from the other side back in 2015 and 2016. A huge amount of work has been done and as the Minister and the Department have pointed out, we created an implementation group comprising departmental and board officials to look at the more than 100 recommendations of the review and to determine which ones were practical and could be implemented. Some of them are already in place, while others require legislative solutions. The responsibility lies with the board in some areas and with the Department in others. It is important to note that our five year strategy looked very closely at all the actions that were within the control of the board and we have integrated all those actions into what we see as our five year priority strategies. From the board's perspective, we are confident that there is a very strong correlation between the actions and commitments that we feel we can deliver. It will be a matter for the Department and the Minister to decide on some of the legislative or policy changes that may be required, including the issue of how the board is actually appointed. That is set down in legislation in the Planning Act at the moment. It is in the Minister's gift to look again at where nominations come from, that is, to consider the nominating bodies and to determine whether that needs to be updated or refined further. The board stands ready to support, inform and assist the Department and the Minister in making the process more efficient and responsive.
On the actions we have delivered under Rebuilding Ireland, the core element has been the strategic housing development policy. It is comforting for me to see a policy that I helped to design actually working so well in practice. It reflects the work that Ms Kenny and her team and the board itself have done to ensure it was a practical step. It may not be the perfect solution in terms of everybody getting what they want but it responded to a particularly acute need. We had to ensure that there was some clarity and certainty around the timeframes for delivering large scale housing projects. In terms of the record of homes that have been approved, it has not been a case of blanket approval. We have refused around one quarter of the applications that were submitted to the board. We have made very clear in our pre-application consultations that there is a lot of work that the developers need to do and, indeed, the local authorities need to feed in their views too. That obviously has a time stop. The legislation is due to fall, unless the Minister changes it, in 2021 and the process will then revert to the normal local authority planning system.
Ms Lambkin will talk about the ICT strategy and the fact that we have revamped our entire system and gone live internally. These projects always take longer than one might anticipate or hope for but it is important that the board has a fully robust system which it is confident can deliver before we go live externally and allow for online applications. Ms Kenny will deal with the issue of national versus local policies and how the board handles the potential mismatch there and the considerations involved in balancing national with local interests in certain plans.
On the question of litigation, there are lots of costs involved. We spent almost €3 million on legal costs in 2018. There are cases from which we can learn and we can then adapt our systems in order to avoid future litigation. We are learning from solutions across the board. We delivered about 2,900 cases last year and only 41 cases were subject to judicial review. Obviously, many of those were high profile cases but in terms of proportion, it is not a very significant number. That said, anything that draws high court costs and takes time to run through the system should be minimised. We are trying to ensure that the State is well served and any public money is spent wisely. We have conceded cases where we felt that we were clearly deficient in terms of our decision or in terms of our handling of the case. Some of those have come back in and we have had to review them again, de novo. We have a very strong system in which there are opportunities for judicial review. People can take a case and it is important that the system is efficient. I know that the courts themselves are looking at ways to ensure that there is a fast-tracking of some of the more critical cases through the commercial courts. Some cases go on the weekly list so that the courts can examine whether they need to be fast tracked rather than going through the longer High Court process.
I will ask Ms Lambkin to talk a little about the Planet ICT system and Ms Kenny about the other issue to which I referred.
Ms Loretta Lambkin:
Planet is the name of our ICT strategy and I have spoken to the committee previously about the project. It is a multi-year project that was started in 2014. It is being implemented in a number of phases. We are finished phases one and two now. These involved the implementation of a new case management system for the organisation and a Geographic Information System, GIS, which required a complete overhaul of processes and systems within the organisation. We are through that now and we launched the system live in October 2017. Every new case that came into the building went onto that system from that point. At this stage, we have the large majority of all cases on that system. What happens next is that the online service will be built on top of the case management system. As with any of these types of projects, it is taking longer than we expected. We are just completing the final phases of procurement for programme management services so that we can start work during 2019 on the online element, that is, the website and the portal. These are the important parts for our customers in terms of being able to submit appeals and applications online and to be able to make payments electronically. We are just scoping that out and we hope to be well on our way to progressing delivery of that before the end of the year.
Ms Rachel Kenny:
In response to the query on contravening a development plan and the national picture versus the local one, when the board looks at applications submitted in the first instance and appeals, it looks to the most up to date policy context and best practice. At the moment, that is largely within the national framework, given the number of recent guidance and policy context changes that have occurred nationally. Ultimately, all of these will begin to be reflected in the some of the county and local development plans over the coming years so that there will be less of a mismatch between the national picture and the local policy context. However, if we have applications or appeals in with us and there are differences between the two, which is the case at the moment, there is no one, de facto, way of dealing with them. We look at what is in most accordance with proper planning and sustainable development.
If we are contravening the plan or recommending contravention of the plan, the reasons for that are very clearly outlined. It usually relates to a conflict between the local and national picture or within particular plans. There are several conflicts within particular development and local plans and those would be considered.
On strategic housing, obviously, we do not have to go through the section 37 criteria in order to contravene a plan. The one thing we cannot contravene is the zoning objective. However, a developer proposing to materially contravene a plan is required to advertise that fact when making the application to us and to justify that contravention. We will examine that closely. There is node factopermission to contravene a plan. The proposal must accord with proper planning and sustainable development and that is what we consider in order to try to deliver the best for the future.
I wish Mr. Walsh well in his new role. My questions are very similar to those that have been asked. The length of time taken to deal with planning appeals is a significant issue. An 18-week processing time was mentioned. Appeals relating to schemes in my area have been waiting nearly a year for a decision. It is unacceptable that we have a housing crisis and it may take that length of time to deal with an appeal for one-off housing or a larger scheme. Mr. Walsh is new to the job but that waiting period is unacceptable. I know he will change it. Does it result from staffing issues or planning applications themselves? Why does it take so long to deal with some cases? I acknowledge that the board must look for further information and environmental studies and so on in order to ensure that everything is done right. More effort must be put into shortening the time taken to process appeals. It is important that the board concentrate on that issue.
I understand that we are in the process of clarifying objections to planning. The Minister stated that legitimate objections will be considered but groundless objections, such as by a person in a nice neighbourhood with lots of land who objects simply because he or she does not want any more houses built in the area, will not. Are there so many "not in my back yard" complaints without merit that the Minister believes legislation is required to deal with that? Obviously, we want houses to be built for those who need them but we must also ensure that there is a system in place such that everyone is listened to. I ask Mr. Walsh to clarify that issue because I was a little taken aback by the Minister's recent comments in that regard.
Senator Boyhan referred to the importance of local area plans, particularly in local authorities. More planners are being recruited around the country to deal with this area. Zoning is very important for local authorities. When I was a councillor we changed the zoning of certain areas. We must try to speed up the process because it can take a very long time to change a zoning designation, which is of particular importance in the case of a group housing scheme. Is there a system at which we could look where the various agencies work together to try to get this done more quickly? There is a particular urgency on that issue.
The Government has approved the appointment of the first planning regulator, Mr. Niall Cussen, whose role will involve reference to the national planning framework. The appointment is very welcome. We should probably always have had a planning regulator. He will be vital because he will work with the various agencies. What will his role entail? What will be his interaction with An Bord Pleanála?
As the witnesses are probably aware, it costs €220 to appeal a planning decision to An Bord Pleanála and €50 to make a submission or observation on an appeal. Has that caused difficulty for some people? Is it likely that the level or range of fees will increase with the introduction of the new online scheme? Some people cannot afford the fees. I understand that there must be transparency and everybody wants that, but people only object for proper reasons and those reasons must be considered.
I ask Mr. Walsh to address my questions on fees, the planning regulator, local authorities and their role, staffing levels, the time taken to process appeals and the legislation proposed by the Minister. I am delighted that more planners are being recruited, which will be of benefit in the bigger picture.
Mr. David Walsh:
The Senator is correct that a waiting time of one year for an appeal is not acceptable in the view of the board. A confluence of internal challenges existed. The small number of board members meant that they could only hear a limited number of cases. As Ms Lambkin stated, a new system was implemented across the organisation involving all files having to be put onto the system rather than staff dealing with hard copy files as had previously been the case. That required that the system be refined. In the middle of that process, the board took on new strategic housing functions which meant that we had to redesign and build into the system the capability to deal with the new strategic housing schemes of 100 houses or more. Obviously, there is a large intake of cases. We have recruited to ensure that we have sufficient staff with the right skills sets to cope with the demand. As cases have become more complex, they require more resources. I am now in a position to look to the future. I recognise and the organisation accepts that change is required. Our objective is to be able to deliver all cases within 18 weeks by the summer and to then maintain that level of service. We have brought through some initiatives. We have created a free-flow system for smaller cases such as extensions, which we seek to prioritise and have dealt with quickly by the inspectorate and the board. Some 96% of smaller cases are decided within an 18-week period. It can be done but not for every project. We will improve further. As we develop the system we will refine it and it will become more efficient.
The board treats every submission, whether from an individual or a group, in the same way. We look at everything in the file, the history of the local authority and what happened. If it is an appeal, we get the full papers from the local authority. The point of having an impartial board is that we can look at an appeal, assess it in its entirety and come to a robust and defensible decision. The number of appeals is not declining but that probably reflects the current level of planning activity rather than more objections and complaints being lodged. Indeed, many people contact us in support of developments. Not all submissions seek to block planning applications. The number of cases we are able to process reflects the fact that we are still efficiently dealing with cases while adhering to the clear statutory requirements for us to take all views into account.
The Senator is correct that there has been an upsurge in planning activity. It is great that local authorities are getting the resources and planners that they need. As well as development management, they have responsibility for development planning. Obviously, the national planning framework and the regional plans need to be reflected and built in to city, county and local plans. An Bord Plenanála has more than 50 planners but, given the complexity of some of the appeals, we needed to ensure that we have the right skill sets and expertise to efficiently process those cases. It is a matter for the Minister and the Department to ensure that local authorities are resourced to do likewise. We are a planning authority. The planning regulator, Mr. Niall Cussen, will have a very important role. The need for a planning regulator was flagged in the report of the Mahon tribunal in 2012-2013. Although it has taken some time for the regulator to be appointed, with activity currently ramping up, his role will be to assess how the system is working at local level and to ensure consistency.
It is a policing role but it is also a supportive and facilitating role. Efficiencies and best practice can be shared across local authorities and we are able to assess and address some of the issues Senator Boyhan had about the perceived or temporal inconsistencies between what might be in local plans and national guidance. That is something in which the regulator will have a strong role. We will be subject to the scrutiny of the regulator as well in the way we perform as a planning body. We will also answer to and be subject to the role of the regulator, who is independent in his functions.
One question related to appeal fees. Obviously, the fees are something that the board proposes and they are set by the Minister. Again, as part of improving the system and so on, we may take the opportunity once the Plean-IT project is rolled out and available to see whether the fees are proportionate. The fees have not changed much in the past ten years or more.
Mr. David Walsh:
Again, it is a question of the right fee level to facilitate people to participate in the process but also to ensure there is a certain amount of cost recovery.
Another question was around the issue of zoning and local area plans. Obviously, the development plan process is set down in legislation and is a matter for the Department. It is a long period but the long period reflects the need for engagement. It reflects the need for opportunities through public consultation processes to have adequate debate among councillors and to look at seeing how a scheme will evolve. The context for planning is changing so quickly that a six-year development plan may be very different when it comes to the next six-year plan. However, there are opportunities to vary plans, and in many cases plans will be varied once the regional plans are in place, and it is a matter for the local government to prioritise that system and to work with the Department.
I wish to discuss objections. The Minister spoke about clarifying objections some weeks back. What is Mr. Walsh's opinion on that? The Minister spoke of the neighbour next door who might not want houses beside him and so is looking at putting something in place.
Mr. David Walsh:
They can do so. The fee to make an appeal is €220. There are different categories. The fee to make a submission or an observation is €50. Again, the system is in place to facilitate people to make their views known. Like local authorities, the board will take on board whatever views have been expressed in coming to a final decision.
I wish to take my opportunity to wish Mr. Walsh well in his new role and to Mr. Cussen in his role as a planning regulator. Two significant people have been lost to the Department and there is a huge hole to fill within the Department.
I will try and focus on the processes as opposed to anything else and perhaps makes some comments on other issues. I believe that the 18 week period is unacceptable in today's environment. I fail to see why it cannot be put into statute that a decision has to be made in 18 weeks one way or another. We brought a similar measure in the local authorities many years ago whereby the authorities were forced to make a decision within eight weeks. The board should be under the same obligation, whether it is 18 weeks, 20 weeks or 12 weeks. In any event, a decision must be made. It is unfair that a person who has to go through an appeal process does not know when the decision is going to be made. Whether it is a matter of business or the family home makes no difference. People should know as a basic entitlement when the decision is to be made. I acknowledge the work of the board in trying to address that, but the level of 40% is nowhere near where we need to be. It should not be there. We should not have the option in the first place. The decision should be made within the statutory process and it should not be extended.
Mr. Walsh has been part of the strategic housing development process moving towards the board. The strategic infrastructure process is with the board at the moment and site valuation is with the board at the moment. It looks like a great deal of planning is going to the board and bypassing the local authority. From an observation point of view, there are three different types of planning process. This is what I am trying to get to and what the public has a difficulty with. It is very difficult to understand the planning process for the public. Even as a public representative I find that it gets rather complicated. Now that the board is dealing with three different types, is there a model or is there something coming forward in a more transparent or consistent way? The term "consistency in decision-making" was used. That is what the public wants to see. They want to see consistency. It is difficult for the public to understand how decisions are made and it is important that we get consistency in the decision-making process. I am seeking the opinion of Mr. Walsh on the three different processes that the board is dealing with at the moment.
My next point is on the figures. One of the charts that the An Bord Pleanála representatives showed us indicated that 1,200 appeals relate to residential development. Of that a significant number relate to one-off rural housing appeals. The figure is in excess of 400. That raises a concern for me as a person who comes from a rural area and who has been through the rural planning process. The level of appeals for one-off rural houses is staggeringly high. Is there anything we should be doing to try to prevent that happening or to deal with issues at council level such that they do not end up with the board? I have my views on the planning process about one-off rural housing. There is not enough consultation with the applicant at local authority level. A great deal could be ironed out there which would mean it might not end up taking the time of An Board Pleanála officials.
I will offer some observations on the national planning framework, regional plans and county plans. Although I am supportive of the logic and the sequence, it has put several local area plans completely out of sync in my county. I mentioned the Newtownmountkennedy plan. It will have been 16 years before it has a new local area plan because we wrote it at the time of the crash but nothing was happening at the time. The six-year period ended last year. Now, we are told that we have to get into sequence with the national planning framework. The original plan will be adopted. The information coming through now is that we will not be able to put in place a variation on our county plan and that we will have to redo the county plan. In the meantime, Newtownmountkennedy will have to wait for the county plan. It could be another three years before Newtownmountkennedy will have a local area plan. It is similar with the Wicklow town and Wicklow environs plans, which were meant to be done this year. They are going to be kicked down the road now. Development is beginning to take place in both these areas, but they will not have a local area plan in place to deal with each situation.
I wish to comment on county development plan policy versus national plan policy and maybe even EU policy further up the line. There has been controversy around wind energy. County policy has been overruled by national policy. Despite this, at the moment there is no national policy and we are still waiting for the strategy on wind. We have many applications for solar farms. There is no policy around this sector. Some authorities are not making decisions because there is no policy. What will happen around the area when there is no policy on the information?
I welcome the Plean-IT project. It is a pity it is not in place now but I can understand how important it will be. It makes the process transparent for the public when it can access all the information freely online. The same applies to our county plan process. When we show people that they can get everything online, it makes them more comfortable with the system and makes them believe that the system is more transparent. The same applies with the board. The An Bord Pleanála website could probably do with a rehash. It is rather difficult for people to make their way around it. I might come back on some points following the reply from Mr. Walsh.
Mr. David Walsh:
I thank Deputy Casey. One core issue concerns whether the statutory objection period should be cut off. That issue has been discussed between the Department and this committee and has been debated in the Oireachtas through various tranches of legislation.
The system is the system we are currently implementing. Until the Government and Oireachtas change the legislation, we will be dealing with it. We have learned lessons. In the strategic housing development process, we have been able to deliver on all cases within 16 weeks. The Oireachtas built in a safeguard stipulating that if the 16-week period is exceeded, there is a penalty for the board. It has been possible to deliver on this because there has been a very clear structure of pre-application consultations involving the local authority, developer and board. Everyone understands what is expected, the key drivers and the appropriate use of the site, and then we drive forward. We have resourced a strategic housing development team dedicated at administrative and inspector levels within the organisation to ensure we can meet the 16-week deadline. The reality, however, is that there are limitations to strategic housing development. If we were to hold an oral hearing or look for further information, the process would require more time in order to enable people to comment and send in further information, to see what comes in so there is transparency on a file, and to participate in an oral hearing. The difficulty is that with every single case, one wants to ensure the board has sufficient information before it to make a robust decision.
With regard to some of the European directives and requirements and environmental impact assessment reports, appropriate assessment is required. Again, the processes in this regard add time to the evaluation but also to circulation and participation by stakeholders, including other Departments. Until such time as the Oireachtas or Minister say we are changing the system, we will proceed as I have outlined in so far as we can. Where we have been able to identify particular types of schemes - the free-flow, smaller types - we are hitting 96%. There will always be one or two cases in which we do not have enough information and have to go back out. That might take four or five weeks because when someone replies, we then ask the local authority or other observers to respond. We are seeking to make the system more efficient.
As I mentioned in my opening statement, strategic infrastructure involves an important role for the board. I recognise one might feel this has evolved and moved into the board from local government and the planning process but we have processed and adjudicated on about 110 or 111 cases since 2006 or 2007, when the strategic infrastructure functions fell to the board. These involve large-scale projects and major schemes, including roads and infrastructure projects. They have provided many of the building blocks for what we regard as the investment necessary for business, residential and commercial activity to happen as demand for development increases.
Through our systems and processes, we are learning lessons from strategic housing and determining what lessons we can learn about transparency and communication to streamline pre-application consultations, but recognising that where there are complex cases, they might not be as straightforward as a housing development. There could be much interaction on heritage and environmental issues. There is certainly room for greater efficiencies and streamlining of the processes. That is something we will be prioritising the first half of this year.
It was stated that if we had a clearer system and better communication regarding how we make decisions, so people can understand the system, it would be beneficial. The issue of a website arises in this regard. The development and modernisation of a website is one of our top priorities. Ms Lambkin is very eager to move with the times and ensure we have it. We have obviously had to prioritise our internal improvements first. As we now have the system running live within the organisation, we are certainly turning our attention to it. Part of that is about making information fully available so people can navigate the board's website.
It is also a question of the language we use. Both Senators touched on how we explain how the system works. It is a matter of removing some of the jargon from the system in so far as we can.
I shall ask Ms Kenny to elaborate on local area plans, one-off rural housing and the high rates. Our body is in development management so we actually deal with applications and appeals. The process concerns development plans being out of date and local area plans. It is a challenge. There are consequences to having plans that do not reflect the current context or reality, and this is where the board has to take a very balanced view and consider the latest and most up-to-date policies on the environment, planning and other elements, in addition to considering the local objectives. That is something the new regulator should be examining in terms of determining how to address the issue of consistency between regional, county and local plans, which should take precedence, and whether there are better ways to ensure consistency. Ms Kenny might touch on wind energy also.
Ms Rachel Kenny:
Regarding out-of-date local area plans, particularly regarding the strategic housing application, there has been very positive interaction with the planning authorities, which recognise and are hamstrung by the fact that some of their plans are quite out of date. They are very supportive of the proposals coming in, notwithstanding that they do not comply 100% with the development plans or local area plans because of the passage of time and the delays in having to review them, brought about by the changing national and regional policy context. In a way, the strategic housing allows those to go ahead. Notwithstanding that the board is allowing and facilitating material contraventions of plans, they are actually being supported by the planning authority because of the time lag. The others are, unfortunately, not in such an advantageous position, but that depends on the particular case and the rationale being put forward on appeal stage.
With regard to the rural housing element, it is not just first-party appeals. If members believe all the applicants are appealing the decisions, they should note that a significant number of the decisions are appealed by third parties. While pre-application consultation assists the applicant, our system allows for third parties to be involved and to have a say. That will also be related. The other element that keeps the figure high is that sometimes it is an issue not of the principle but of the design, conditioning and so on. The figure looks quite dramatic within the residential context as a whole but it is not just a case of applicants being refused and having to appeal. There are multiple reasons.
With regard to wind and solar energy and the lack of national policy or guidelines in that regard, there is a general policy or national context in terms of positivity towards renewable energy. We know we have to move towards renewable energy. In principle, we should be looking positively at renewable energy. We must look to the local context, local development plans, county development plans and so on to ensure there are not particular issues that would influence the decision-making because ultimately the board will look at each case on a site-by-site basis and at the proper planning and sustainable development. We support renewable energy but if there is a negative or adverse impact brought to our attention by the planning authority or objectors, that will obviously be brought into consideration. Just because there is not specific guidance in this regard, which would be very helpful, the board is still in a position to consider these cases in a very holistic way. As Mr. Walsh said, however, we are referring to some of the application types or appeal types because they do not all fall into the strategic infrastructure development category. Solar does not fall into it at all. I refer to some of the appeal types that take longer than the 18 weeks. Since they are new, there is not always a policy context, nationally or locally. Therefore, there are sometimes oral hearings and sometimes we have to go back and circulate information and look for more information. It is a very new field. When we are operating at full efficiency, these cases are part of the 15% regarding which it takes us a little longer to ensure we have a consistent approach across the board.
I wish to address one point I omitted. Going back to the issue of customer service and our ultimate driver to make the system more accessible and easier to understand, we are obviously working very closely with the local authorities, the CCMA and its e-planning team. We sit on the steering group on planning. We are aligning ourselves so that as and when they pilot their scheme for online applications in the first instance we will be ready to take any online appeals. We will be moving into an aligned and synchronised system. Separately some housing and large infrastructure cases come our way directly. We will be taking new applications as well as dealing with appeals. We are clearly focused on ensuring that hopefully by this time next year we will be able to talk about how the new system is close to being in place if not in place, making it much easier to make appeals and see what is happening on the ground.
In all the engagements my staff and I have had with An Bord Pleanála, the response has always been incredibly professional and quick. I acknowledge that and thank its staff. Sometimes given the An Bord Pleanála web difficulties, which I will come to in a minute, it is often hard to find information, but when we follow up with phone calls we always get the information very quickly. I ask Mr. Walsh to pass that on to the staff.
I will make two comments and then ask some specific questions. I share Deputy Casey's view. Not only would I have a strict statutory limit, but I would have a shorter statutory limit for the majority of cases. From my understanding of the majority of cases, not those outliers or exceptionally long ones, An Bord Pleanála is reviewing substantive assessments that have already been made. Having a statutory limit is not a decision for An Bord Pleanála and I accept its position. I presume it is a resources issue. Local authorities can do it in eight weeks because approximately 30 of them are processing all those applications. This is a matter we can raise with Government at some other stage. We need to get to a point where those timelines are much more fixed and streamlined for the average cases.
I also comment on the political debate that has started. These are not questions the witnesses can answer but it is important to point out I have a different view from the other members who have spoken so far. Third party opinions are an important part of our planning process. I say opinions and not objections because many of the opinions submitted are not objections. They are suggested improvements, amendments etc. and they are valid.
There is considerable hypocrisy in the political process. I will not name any politician or any case. I regularly see politicians submit objections to developments not on planning grounds but purely for electoral reasons. However, I think the Minister is wrong; most of those opinions have no impact on planning decisions nor should they. I have seen planning submissions from politicians that make no planning points whatsoever. The politician knows it will have no negative impact, but wants to be seen to be opposing something for electoral reasons.
On one occasion politicians who wanted the development to proceed deliberately submitted objections opposing it, knowing full well it would have no material impact. I do not ask the witnesses to comment on that. I want to put it on the record because other members have raised it and I think there is a failure of leadership on behalf of some politicians to engage with residents to try to ensure that where a development happens it is done in a sensible way.
There is also considerable misinformation out there that just because a politician objects it has an impact. I would be very concerned and my experience on South Dublin County Council is almost no political objection has any planning impact because the quality of the objections is so poor and they are not rooted in planning regulation. In light of last night's programme it is important for us to be clear about that.
On a more general point we need to level the playing field for genuine third party opinion makers who want to improve development but do not have technical expertise. Other jurisdictions have non-governmental organisations that can assist residents not to oppose something but to work out how the development of a hospital, school or housing can happen in a way that meets the needs of developers and the local community. Greater support for third party and particularly community-based third party opinions would improve the process overall.
Of the 60% of cases taking longer than 18 weeks, how many are six months or 12 months? If Mr. Walsh does not have that information, he might be able to provide it in tabular form at a later stage so that we have a quantifiable picture for it. I would always use the phrase four and a half months because 18 weeks just sounds short. Four and a half months is a long time. I know some of these are incredibly complex cases; I am not trying to minimise it. However, I would like to know how many are eight, 12, 16 or 18 months to get a sense of all of that.
Mr. Walsh will remember I supported the legislation on strategic housing developments at the time. What is the average timeline from start to finish for the applications that have been through the board? The 48 weeks was the problematic length of time for the 15 or so cases that the Department at the time cited to justify the introduction of the legislation. How much better is An Bord Pleanála doing than the average 48 weeks from the spreadsheet for 2015 large housing developments that was given to the committee at that stage? If Mr. Walsh does not have the information today, he might send it on to us subsequently.
How will An Bord Pleanála get to the 80%? It will be great if it can do it and the committee will commend Mr. Walsh and all his staff. The resources at An Bord Pleanála have not increased dramatically - I know there are more board members etc. Promising that it will get to that level of compliance by the middle or end of the year is a big commitment.
I was going to ask about the major issue of the website and Mr. Walsh has answered part of it. The local authority planning sections' websites have improved greatly. Not only is it easier to search for something, but, for example, the interactive mapping tools now available are wonderful. I often want to know about a planning application in South Dublin County Council. Without any notion of the reference number, I can go on map and see all the planning history. Will the An Bord Pleanála site eventually not only have functionality that allows us to access decisions and filed, but will it also have that kind of mapping tool? Does it hope to reach that point? Having that would be an enormous advance and more than welcome.
Returning to reaching the 80%, what is holding An Bord Pleanála back? Is it simply those legacy issues of fewer board members and staff? What is the explanation? If they are all just legacy issues, clearly it will be better able to meet the 80%. If they are not just legacy issues, are there other issues of which we should be aware?
Mr. David Walsh:
I thank the Deputy and appreciate his comments. I note his first few comments and probably will not give a view on those. I do not have a breakdown on the number of cases and where they are and how many are 12 plus months or whatever. When I went into the board I was clear that I wanted to look at the oldest cases and ensure they were put at the top of the pile and addressed. I can understand the frustration of someone whose application has been waiting for 12 months when someone else's is completed in four and half months or three and a half months. The vast majority of the cases we dealt with in the last few months of the year - the 600-odd cases - are cases that were already over the 18 weeks. Therefore making the decision to focus on cases that are well beyond the four and a half months did not improve - in fact it disimproved - our percentage.
Ms Kenny and the planning team have confirmed that we are at a point where cases where the decision dates that were due in the latter half of the year we are now actually up to where the four and a half month period in most cases is probably November or December. We are now getting it back to where there are still two or three months of cases that still need to be resolved. Obviously some of the larger cases will require significant further information, ecological reports, full-year studies etc. Some will obviously skew this and be almost historical cases.
There are some other cases where we have actually opened cases through pre-application discussions and the legislation as it stands does not allow the board to close it; it requires the applicant to actually close. We probably have 50 or 60 cases on our books that will never happen but still exist.
We will engage with the Department to see whether legislation can be amended or improved to correct this anomaly whereby cases are left sitting. We are happy to provide further information. We are within the last two or three months of dealing with the bulk of cases.
This partly answers the Deputy's second question as to whether we are being too ambitious in how we will deliver this. The statutory objective is to deal with cases within 18 weeks and, at present, the average is 22 or 22.5 weeks. Some cases are dealt with faster and other are not.If we take it that, on average, we are getting approximately 250 cases a month, over the next three or four months we will work through the remaining backlog and deal with cases in which there is enough information for us to go to the board. The fact we have ten board members as opposed to the four we had back in May or June 2017 means we can have a number of board meetings at the same time. The minimum quorum for normal board meetings is three so with ten people we can have three board meetings concurrently. The larger strategic housing development schemes require more people.
As Ms Lambkin said, when we introduced the new system staff were not able to deal with applications for a month while we took our time. We began with live cases. We stated that from a particular date we would put them on the system. This involved our entire team, from people in reception to those processing cases, to ensure the system worked. There was a certain and necessary slowdown that always happens in a transition. If we lose one or two months' work, we will suddenly find ourselves 500 or 600 cases behind and chasing them. We must then decide whether to go with the old cases.
If, as I outlined, we can put in the resources and be innovative in tackling this, for example, by initiating extra work and overtime and incentivising planners to take extra cases and deal with them out of normal office hours, we will clear some of the backlog. We need to continue to do this and get support from the Department, not only for the resources we need but also because we expect to see more cases, including more complex cases, coming through. If there is a case where an inspector or a team is no longer tied up for three months but for six or nine months dealing with a huge file, it means we do not have an inspector to deal with other cases that might come through. It is not solely about throwing bodies at this. It is about making sure we have people in the right locations. We are hiring an ecologist and we will bring in business analysts and programme managers to ensure we keep Plean-IT on track. I feel very reassured given how the board operates and how professional the team is. Over 12 months, we will probably have dealt with between 60% and 70% of cases because of having to deal with legacy issues in the first half of the year. For the last quarter, however, I expect to deal with more than 80% of cases and to maintain this rate as we go forward to ensure the organisation will not face the same challenges in future. It is something we are ready to do. The workforce plan will further support and identify any deficits we need on the resources side.
With regard to mapping, we will build in a geographic information system, GIS. The wider myplan.ie, which is led by the Department and includes local authorities, is very much more from a zoning perspective and seeing designations. As Ms Lambkin said, we have been building a system. The GIS element is the second phase of our Plean-IT project. When the website goes live we will have a GIS and it will be interactive. Going back to the issue raised by Deputy Casey, the key is to have a joined up system. We cannot have the board doing one thing and local authorities doing something else. There must be synergy and sharing.
With regard to the intensity of the work, if we were to try to deliver cases more quickly, it would come down to resources and ensuring we have timely feedback from statutory bodies and local authorities. Even as it is, strategic housing developments have worked. We have put a huge amount of focus and resources on them but they are hugely work intensive.
The legislation was sold to the committee on the basis of an identified problem of a 48 week turnaround from start to finish, including board appeals, on 15 or 16 large housing developments in 2015. Mr. Walsh remembers the torturous committee proceedings. What I want to know is, all in from start to finish in all of the cases dealt with, how long they take and what is the average so we can compare whether it is being done faster under this legislation, and faster does not necessarily mean better.
Mr. David Walsh:
That is taking a particular type of scheme. It is not a one size fits all. Going back to the point, there are lessons we can learn and systems we can look to see whether there are other types and subsets of projects that could benefit from a tighter timeframe, whether set statutorily or one we set ourselves.
Ms Rachel Kenny:
Yes. It appears larger because 117 were received but 20 of these were invalidated for one reason or another and resubmitted. We had 97 valid submissions, of which 40 applications have been decided and 20 are on hand, which is a total of 60. We are beginning to ramp it up. At the very start we could only be involved in the pre-application stage. On day one, we had a nine week lag with regard to pre-application submissions. We noticed that towards the end of 2018, we had a significant number of pre-application consultations. On average, there were 20 per month in the final quarter of the year. There was also an increase in application numbers. We anticipate that 2019 will be busier because the pre-application consultations will be more dense and intense in the latter part and it will take time. A large proportion of pre-application consultations require further consideration. We have been delivering within the nine week period. The applicant must then go back and have further conversations with the planning authority before coming back in. That said, they are all coming in within a relatively tight timeframe. There may be a couple of months during which they will come back into us.
This is an important issue, on which I ask the Chairman to indulge me. He knows where I am going with this. On the basis of what Ms Kenny has said, Mr. Walsh's answer did not compare like with like. The previous 48 week period was all in from the day the pre-planning application was made until the final board decision. It included developers submitting badly done applications and having to resubmit or having extended additional information requests. What I would like, and Mr. Walsh's answer has not given it to me, is to know how do we compare like with like in all of the applications?
If, for example, the 27 pre-applications were logged but sent back because they were not valid, I presume they would come back in and be included and that the 97 figure is the unique number. With the applications that were rejected and then come back, is An Bord Pleanála including in the calculation of its averages that initial period when the applications were rejected and then put back in?
Is Ms Kenny saying that in the nine weeks between the pre-application and the formal submission of the application to the board there could be a gap there that is not counted in An Bord Pleanála's 25 weeks?
I get that but one of the biggest delays in the 15 case studies was the delay in the applicant coming back due to the request for further information. In some cases it was six months or nine months and so on. That was not something the local authority could control although it had asked for the additional information. If I was to ask what is the actual average time for the processing of these one would need to include the period between the nine weeks and the 16 weeks. If it is a very short period that is great, but I would really like to know, comparably from start to finish, what is the actual average. Ms Kenny has said that it would be more than 25 weeks. How can we have a comparison on this that would allow us to judge the improvement? I presume there is an improvement, so it would be in An Bord Pleanála's interest to show it.
We had this conversation when representatives of the Department originally came before the committee for discussion on strategic housing development, SHD. It had some average figures, but they were hokey as hell. We fought tooth and nail for the spreadsheet and we got the spreadsheet that mapped it out all of those 15 cases. While I do not seek a spreadsheet for all 117 initial contacts, a spreadsheet that could enable us to see how it falls and the things that are inside and outside of An Bord Pleanála's control would be good.
I appreciate that the Vice Chairman has given me some time at the committee to speak and to question the officials from An Bord Pleanála. I wish Mr. Walsh all the best in his new role. I am a bit of a raw novice on this so please forgive me on some of the questions I might ask. Mr. Walsh said that An Bord Pleanála has 159.5 full-time staff. Does that include the actual decision makers who are the board members?
On the strategic housing developments, SHDs, if I wanted to make a submission can I make it locally? It is not very clear from the guidance for planning authorities. Can I make it locally or do I have to send it into the board? If a person cannot make the submission locally because he or she is in parts of the country that are not as accessible with regard to getting submissions into the board, can he or she make the submission at a local level? What percentage is the divergence between An Bord Pleanála's inspectors' reports and the board's decisions? What is the timeframe between an inspector's report and the board making its decision? This is not just for strategic housing developments, it is for the ordinary appeals that are made.
One thing has been annoying me for a while, it is probably to do with my own County Kildare, namely, the interpretation of national planning framework, NPF, particularly national policy objective No. 19. Ms Kenny will be aware of objective No. 19. The first time I came across it with regard to the board was an application in Carlow, which was granted by the planning inspector in April but was refused by the board in October, quoting NPF national policy objective No. 19. I have spoken with the Minister on this. I have a problem with this. The Minister's intention on it when he spoke about it in the Dáil and the Seanad-----
Yes, it is a decided case. I have a problem with it in the context of the Minister's intention and the board's interpretation. To my mind that has caused untold problems, especially in County Kildare. That board decision was made in mid-October and from 1 November, decisions by Kildare County Council have included NPF national policy objective No. 19. There is real concern that the interpretation taken by the board of what the Minister's intentions might or might not have been has suddenly caused fierce problems for people putting in planning applications for one-off housing. They would qualify under either social or economic reasons. Social criteria is used because from an EU perspective, we cannot use being close to family as a reason. I would like Mr. Walsh to explain to me his interpretation of NPF national policy objective No. 19 in order that we can sort out this issue.
My last question is on strategic housing development. Mr. Walsh referred to the quorum normally being three. Has this been increased with regard to the SHDs? Mr. Walsh said that generally there were more board members there. Does he request more than three or can the decision be made based on a quorum of three?
Mr. David Walsh:
I thank Senator Lawlor. I will answer a few of the queries and Ms Kenny may be delighted to answer some of the questions regarding objective No. 19.
Senator Lawlor asked how long the board has a file from the time when the inspector hands it over. The 18 weeks is generally broken down into the first five weeks for processing, validating the application, circulating information to the local authority, getting data from the local authority if it is an appeal, and notifying other statutory bodies or Departments if they need to be aware that an application has been appealed. Then there is a nine-week period when the inspector will have the file, go out on-site to inspect and do the necessary research to prepare the folder. The board then has it for between three and four weeks, to make the decision within the 18-week period. That is generally the timeline that we keep, but where there are issues around further information some of those requests may push that timeline out. On average the board members have three to four weeks with the file.
Mr. Walsh is clarifying for me that when the inspector makes his report and the board makes its decision, it is usually for a period of three to four weeks. This specific case was a lot longer than that. While there may be particular reasons in many cases - and Mr. Walsh has identified that - surely the inspector's report would make a recommendation and the board's decision should not take as long as six months.
Mr. David Walsh:
This comes back to the issue of the backlog. That is our timeline under the strategic objective periods.
The 18 weeks is broken down but, as we said, we have been dealing with a backlog. I do not know that particular phase of the timeline but there are many cases in which we have not been able to meet the 18 week period because an inspector has not had time to deal with it within the timeline, or it has not reached the board in time, or for other reasons, but that is the normal period if everything is working to plan and we have all the information.
The next question was about the rate or divergence of inspectors versus board decisions. It is normally somewhere between 10% and 15%. In 2017, the figure was around 12.5%. In some cases, the board considers whether to overturn a decision or recommendation by the inspector to approve or, indeed, refuse a permission, so it could be either way. It is not just all one way. The point and premise of the board is that there is a planning inspector who prepares a file and assesses all the information and there is then a range of expertise on the board. There are architects, engineers, planners, administrators and people who understand the policy. Collectively, those board members look at the review, look at the file afresh, examine it and decide whether, in the context of consistency, there are decisions that sometimes merit either altering conditions or deciding to go against the inspector's recommendation.
There may be boards comprised of three threes to speed it up. Not each of those three people in the group will have the expertise that Mr. Walsh mentioned. Is it a unanimous vote or a majority of two-one? Could Mr. Walsh give us insight into that?
Mr. David Walsh:
It rests with the chair to decide the number on a board. I can call a full board on any file that I decide. A minimum quorum is three, including a minimum quorum for strategic housing development, SHD, but there are five members designated in the legislation for strategic housing, with at least three of those at any time because people may not be available. One would not want to have a quorum of five while only having five members because it is then difficult to make efficient decisions within the timeline. We record when there is a split decision whether a two-one split, a three-two split or a five-four split. In many cases, the board comes to a collective view and records its decision.
Mr. David Walsh:
I will ask Ms Rachel Kenny to deal with the issue of objective 19 of the national planning framework, NPF, and the interpretation of the board. The legislation and policies are set down and the board interprets the legislation and policy that is produced. I flag that the Minister may have certain views and intentions but the legislation and policies that are produced and set down are interpreted by the board. The board often may not be able to read the mind of the Minister. We look at the legislation, the case law and guidance that is there and then we interpret it. That reflects a consistency of approach, not only at board level but through local authorities on a practical, case by case basis. Ms Kenny might be able to elaborate on how it applies in reality.
Ms Rachel Kenny:
The rural housing guidelines introduced a certain level of consistency across the planning authorities when they were in operation and were understood by the board. Before the national planning framework, there was the European decision on social need, so the board has looked at that and the national planning context now because the rural housing guidelines are slightly out of date, as are development plans and local area plans, and they do not reflect the NPF. There are also regional strategies. We look at the national picture and go all the way down to the local context, as we would in any other instance. Where there is an inconsistency between the two, we look at the proper planning and sustainable development, predominantly starting at the most relevant and recent and the national picture downwards.
The interpretation of national policy objective 19 depends on the case. We would, generally, look at that policy in the NPF with the idea of protecting rural life, landscapes and communities, including smaller rural villages. Planning authorities want populations directed to those places but also facilitated in many rural areas. Where there are weaker rural areas with declining populations and so on, the national planning policy facilitates housing there whether based on social, economic, local needs or other needs.
Some areas are under strong and growing urban influence as urban areas increase in size and density. The distances people commute also increase. Some planning authorities are taking an opportunity to reflect that in their decision-making because the NPF has also referenced that. Some of the planning authorities are refusing on that basis, as are we. However we are in consultation with the Department which is currently reviewing, or looking to review, the rural housing guideline which will allow clarity and, I suppose, consistency in the interpretation of the new NPF.
The NPF was intended to set a national picture and a national policy context that would filter down. That will happen over time. We are working to ensure that there are consistencies both within the board and across planning authorities and there is a shared understanding and this can take a little bit of time. We have set up working groups and workshops to ensure a consistent approach and understanding in interpretation.
Ms Rachel Kenny:
They are internal workshops initially but the Department has a steering group. The County and City Management Association, CCMA, through the land use and transportation study, LUTS, committee, is also involved in looking at rural housing policy for the development plans and local area plans, and we would be informed of those and, ultimately, involved in that. When the Department reviews its rural housing guidelines, under the local need issue, there will be public consultation on that.
I have two quick queries. The first relates to people who object to particular planning files, something which the witnesses look at face on and deal with. As they know, there were a couple of high-profile objections recently which meant a loss of serious investment to the State. I am curious. Given the witnesses' experiences, should there be some guidelines or a particular set of rules so that a person who wants to object to a planning file should fit a certain criteria? A person needs to meet a certain criteria if he or she looks for planning. There are many hoops to be jumped through at the best of times. We have been listening to Senator Lawlor speak about local planning. I am curious because anyone can make an objection from wherever they want, from their sitting room or wherever. I am trying to drill down. Is now the time to address this? There is no problem if someone has a case for an objection. It is brilliant if somebody wants to make an observation. Anybody can make any observation and the board can take it on board, as it were. As we are aware, people who make objections often might have different reasons for making them, and anything but a good reason lies behind quite a lot of objections. Should some guidelines or criteria exist as a prerequisite for making an objection? I would like Mr. Walsh to give me a straight answer on that, if at all possible.
Senator Lawlor picked up on something that emanates originally from the Flemish decision on one-off housing and, as we called it at the time, local needs. We got an Irish answer to a problem we were hiding behind in Ireland.
The Irish answer to it is that it is local and economic. Has that been tested? Is that a case of us suiting ourselves or dressing up the same thing in whatever way makes us feel the best? Has that been addressed in Europe or anywhere else to see whether we fit into European laws? Is it the case we are great Europeans who can do what we want and have no borders or have we given ourselves an Irish answer to what we have manipulated as an Irish problem?
Ms Kenny spoke about the rural housing guidelines. There are guidelines. Some planners are great while some are not so good. It is all down to interpretation. There is significant variance in how planners interpret the guidelines. When new guidelines are released, are planners told that something has been done for a particular reason? I know Senator Lawlor touched on this briefly with regard to training. If we just bring out guidelines, where some of these people have come from, how they have dealt with planning previously and their backgrounds affect how they will interpret the guidelines. A person could get results from two different planners with regard to a file that would be like chalk and cheese. I have seen this at first hand. I could name 20 cases where this has happened. I could even name more such cases over the course of my time in politics. I know this is not An Bord Pleanála's remit but it feeds into a lot of it. A situation can arise where if someone gets a certain planner, he or she has a good chance of getting planning permission because the planner is tuned in, knows the locality and is trying to keep people in the locality, whereas if the person gets another planner, who comes from Dublin, the planner could say "No" to one-off planning. This happens. Unfortunately, this is real life in rural Ireland. Do the witnesses think such a scenario is good enough for the people?
Mr. David Walsh:
I will take the last question first. From the board's perspective, we must ensure that we are consistent internally. Again, as Ms Kenny has said, we have workshops where all of our planning teams come together to discuss issues, cases that have come through, emerging decisions and feedback from the board, so at least from our perspective, we are satisfied that all of our planners understand the context and how we see the interpretation of the guidelines and legislation. As I said in my opening statement, there is opportunity and scope for the board to support and engage not only with the Department but also with other local authorities and to ensure that, through formal structures with the County and City Management Association, CCMA, and through engaging, arranging for workshops and speaking at events, we can deliver and get the balance right. The Senator is right. Possibly more than other professions, people bring certain perspectives to planning, but that is not to say that one plan is correct while another is not. There are always different considerations and perhaps that also reflects the point made by Senator Lawlor around where the inspector has a particular view, having that test through the board itself and saying that there is a review of it. Obviously, I cannot speak about individual local authorities but I know that from a professional development perspective and from elaborating and explaining our new policies and expectations, the Department as well as the CCMA do arrange for sessions where many planners get together. That shared information might help to iron out some of those divergences in approach. It is something on which we will always be working. Policy is changing quicker than the speed at which we can adapt and it is important that we retain that professional development piece.
Regarding the Flemish decree and whether it is an appropriate approach, Ireland has been engaging with the Commission since 2007 and 2008. Obviously, the decision that came out was not just one relating to an Irish issue but was something to which we had to adapt. From ongoing discussions the Department has had with the Commission regarding the national planning framework, NPF, and some of the policies, I know that it is satisfied that the policies set down with regard to rural housing and local need within the NPF are consistent with the Flemish decision. On that front, it is probably something on which the Department needs to provide its view.
Perhaps the Senator feels that I am not giving him a straight answer to his first question, but the board will look at every submission and every objection that comes through on the merits of the application. Obviously, we must make sure it is a bona fide submission or objection and that it is not anonymous. We must be able to trace it and say this is somebody who has outlined his or her view. Whether he or she raises substantive issues and planning considerations or just provides general support or an objection, these are all factors that the inspector and, ultimately, the board will take on board. As we outlined, the system allows for third-party appeals. There are not that many restrictions on being able to ask whether one has standing to make a case. Obviously, there are some EU environmental requirements in terms of public participation and the Aarhus Convention that enable people to make views known, so it would not be appropriate to restrict it to people within a certain zone. It is something that the Department and Minister are looking at in the context of some historical cases that have shown up what might be seen as matters where the system might not be as fully aligned with what it was intended to be. That is the matter for the Minister and Department to look at but I know it is something that is certainly under consideration.
Would it help Mr. Walsh's job going forward in respect of us being constructive as a nation if we had some sort of guidelines? I am not saying it must be somebody living within 20 miles. I am not tightening a noose around Mr. Walsh's neck, so to speak, with regard to it. Does Mr. Walsh think it would be helpful for us to have some set of rules so that, in particular, if somebody wanted to make an objection, he or she would fall under some sort of schedule into which he or she would fit?
That is why I am asking the question. Perhaps that should be done beforehand so the board would still be making the decision on the information or objection it is receiving. Why take every headbanger? Such people might raise valid points but they are not progressing our country. They might be holding it back when it comes development that is needed in some areas.
Mr. David Walsh:
Ultimately, the board is tasked with weighing up the different views and deciding what is in the national interest and what the decision should be. Again, that is something with which the board has been dealing for more than 40 years. That is the system we have. If changes are being made, which may well happen, we are happy to adapt to changes to legislation, but until that is the case, we will continue to operate and deal fairly and in a balanced way with whatever submissions we receive, regardless of whether they are valid or are the product of ulterior motives.
We all have our views on some third-party appeals. At times, there is no doubt that the reason behind appeals can be questionable. I have even noticed some people looking for financial reward out of that, if nothing else. It has stymied much critical development in the country over the years and is something at which we probably need to look.
I thank the witnesses for their engagement. I could spend another two or three hours with them here going through the planning process. It has been very informative. Many issues have been raised concerning one-off rural housing, an issue close to my heart.
I am aware that there are huge inconsistencies regarding once-off rural housing, much of which is down to not understanding the process. That is why it is vital that everything is as transparent as possible moving forward and that we make the public aware that all this information is available online. Constituents come in to me and when I open up the computer and bring them all the way down into information on people who are objecting and everything is there, they ask, "Can I see this?". They are shocked that this information is actually available. It just puts the planning process in a better place. I wish Mr. Walsh well in his job. It is a tough job but we will be here to support him in whatever way we can. I look forward to another engagement with him, perhaps in the near future, to see how he is progressing on that 40%.
I now propose we go into private session to deal with some housekeeping matters.