Mr. Dave Walsh:

I appreciate that. I am grateful for the opportunity to appear before the committee to assist in its examination of An Bord Pleanála’s financial statements for 2020, and to discuss the board’s important work as well as recent progress in delivering on our statutory mandate. We will endeavour to address all queries as best we can, but, with the committee's indulgence, I may ask my colleagues to come in on some more technical matters that may be raised during the session because they may be more familiar with such matters.

As the Chairman outlined, it important to remind the committee that it would not be appropriate to discuss individual cases. To do so could compromise decisions or, indeed, various judicial review cases before the courts. However, where we can discuss generalities of case types and broad issues emerging, we will aim to be as helpful as we can. While not strictly relating to the 2020 financial statements, I might take the opportunity to briefly outline to the committee the nature and status of a number of ongoing reviews, although, unfortunately, I am not in a position to elaborate much more on these matters and processes while they are ongoing.

In recent months, a number of issues and allegations have arisen in respect of potential conflicts of interest and the effectiveness of board systems and procedures. I fully recognise the seriousness of these issues and the potential damage that these allegations have done to the board’s reputation for integrity, independence and impartiality. I have commissioned a team of senior managers to examine any issues arising, with a view to identifying areas which may require improvements in relation to the suitability and effectiveness of existing controls, procedures and systems which are designed to manage potential conflicts of interest and related matters. I will take whatever actions and implement whatever reforms may be necessary and appropriate to strengthen our systems and procedures in order to ensure that they are as legally robust and fit for purpose as possible and practicable, and with a view to maintaining public confidence in the impartiality of the board’s decision-making processes. In the same context, I will also take account of any outcomes and proposed recommendations from the ongoing review being undertaken on behalf of the Minister, as well as the targeted review of the board’s systems and procedures proposed to be undertaken by the Office of the Planning Regulator later this year.

As committed to as part of its five-year strategy, the board is currently reviewing its code of conduct and any outcomes or recommendations arising from these reviews will be integrated into the code review process, which is expected to be completed by the end of quarter 3 this year. The board is well aware of its critical role within the planning system, in considering and determining planning appeals and major housing and infrastructure proposals and we remain committed to delivering robust decisions as quickly and effectively as possible. We are also very cognisant of our corporate governance responsibilities and I can confirm that the board considers itself generally in full compliance with all applicable provisions of the Code of Practice for the Governance of State Bodies. We have developed and use a framework of assurances, including an audit and risk committee, internal audits as well as undertaking regular updates at management committee and board levels of our risks and mitigation actions. The committee will have noted from our annual report and accounts that, in financial terms, the board had a total income of just over €26 million in 2020, primarily comprising an Exchequer grant of €19.25 million and fees revenue of just under €6.8 million. This represented an increase from 2019, when we received €18.6 million in Exchequer grants and took in just over €5.4 million in fee revenue.

To give the committee a little background on the organisation, the board currently has just over 191 whole-time equivalent staff and nine board members. The Minister and Department have been very supportive in approving resource requests, in recognition of the increasing demands and complexity of the cases coming before the board, including in relation to strategic housing developments, SHDs, and major infrastructure projects. The board is currently engaging with the Department in respect of an updated workforce plan for the period 2022-23 to meet its evolving needs and current and future work demands. The board's primary role is to make planning decisions in a timely manner, in accordance with the legislative framework under which we operate and having regard to the overarching planning policy framework as determined by the Government and the Minister for Housing, Local Government and Heritage, as well as considering local planning policies and the observations from the public and prescribed bodies.

While I appreciate that we are discussing the 2020 annual report and accounts, I would like to give the committee a more up-to-date picture of our casework levels using more current statistics that we have to hand. These last couple of years have been very challenging for An Bord Pleanála as they have been for many other organisations and for society generally, with major disruptions to normal life and work practices due to the Covid-19 pandemic, which we are still experiencing and managing with the latest wave. However, despite these disruptions, the board has been able to keep our public office open in a safe manner through the pandemic phases and was also able to maintain a consistent throughput of case decisions. We adapted our practices to enable online services and virtual meetings, including the holding of remote oral hearings,and facilitated hybrid office and home working patterns for all staff to ensure that we fully adhered to all health and safety requirements and advices for both staff and the public.

In 2021 the board saw a substantial increase in the overall number of cases lodged, with a total of 3,251 received, up 18% on the previous year. The number of cases decided by the board in 2021 was up just under 6% on the previous year’s total, with 2,775 cases decided. While some of these increases maybe attributed to the return to normal business following the extensive Covid-related disruptions during 2020, there has also been a marked increase in activity in the planning sector, reflecting the increased residential development activity, as well as wider economic activity across a range of sectors.

On normal planning appeals, the compliance rate with our statutory objective period, SOP, for 2021 fell back to 58% from the 76% recorded in 2020. This was due to a confluence of factors including the significant rise in case numbers received, reduced staffing capacity arising from the impact of Covid with isolation periods, absences, changes in work practices with ongoing restrictions and managing staff capacity including filling vacancies and covering sick leave in a very challenging environment. With the significant volume of cases on hand at the end of 2021 and ongoing disruptions from the latest Covid waves, it is proving a significant challenge to reverse this downward trend and return to more acceptable levels of compliance this year.

In the first six months of this year, there has been continued strong case intake with almost 1,600 new applications and appeal cases lodged and some 1,350 cases disposed. With the significant backlog of cases and prioritisation given to housing and strategic infrastructure cases, the SOP compliance for normal appeals has dipped further to 44%, but we are exploring all options to improve our performance and are working hard to get back to higher compliance levels with the SOP as soon as possible.

In respect of SHDs, the board has continued to prioritise these and just over 100 cases were decided in 2021, with all but one of these determined within the 16-week statutory timeline. Of these, the board granted permission in 76 cases and refused permission in 25. There is still a significant volume of applications within the system that will continue to be determined over the coming months, while the new large-scale residential development, LRD, process is already up and running with the local planning authorities.

Similarly, the board saw a jump in strategic infrastructure applications received in 2021, with 30 applications lodged, up from 24 in 2020, and 30 cases decided, up from 19 in 2020. The total of 74 pre-application consultation requests during 2021, 24 more than were lodged in 2020, indicates a significant ramping up of major complex applications being considered and proposed.

Amid all the Covid-related disruptions, the pandemic provided us with a valuable opportunity to facilitate a greater online and digital offering to staff and the general public. The board’s case management system enabled remote working for all staff, and the ongoing development of the board’s online capability was extended during the year to enable observations on planning appeals and strategic infrastructure cases, as well as SHD cases, to be made through our web portal. The online submission option is a key step in the board’s plans to provide more online services such as virtual oral hearings and ultimately the online receipt of applications and appeals over time. I also welcome the launch of the board’s new website which is another step in providing more user-friendly and accessible information to all who avail of our services. Working closely with the local authorities’ e-planning initiative,I am hopeful that we will see further phased roll-out of online services over the coming months and into 2023.

The significant increase in the volume of legal challenges to board decisions during 2020 has continued in 2021, with 83 new cases in 2020 and 95 in 2021. These applications for judicial review of the legality of decisions involve significant detailed legal scrutiny of complex matters of procedure and interpretation relating to European Union environmental directives and other issues arising from the strategic housing development application process.

All of those cases are dealt with by the superior courts, that is, the High Court, the Court of Appeal and the Supreme Court, and questions relating to the EU law elements can be referred from those courts to the Court of Justice of the European Union for adjudication.

Legal costs for representation before the courts are substantial, and there has been a significant escalation of such costs in both 2020 and 2021. Our gross legal costs were €8.4 million in 2020 and are currently accounted for at €7.7 million in our draft unaudited financial statements for 2021. These legal costs are split between our costs for solicitor and barrister representation and payments for undersigned costs in instances where the case is lost or conceded. In respect of the latter, it is accepted that in 2020 and 2021, legal case outcomes revealed a significant number of losses and concessions, amounting to 32 in 2020 and 40 in 2021. The board is conscious that it needs to continuously review its procedures and approaches to certain matters, having regard to legal judgments and ongoing advice from its legal advisers, with a view to ensuring its decisions are as legally robust as possible. This process is ongoing but it is still the case that certain areas of planning law remain open to various legal interpretations and are, therefore, still contentious and complex.

When considered appropriate, the board has, in a small number of selected cases, sought to appeal certain decisions to the relevant appellant courts. In terms of costs, the prevailing statutory context around planning judicial reviews is that the board is made liable for applicant costs where it loses or concedes a case but generally does not have its own costs awarded against judicial review applicants where it successfully defends the legality of its planning decisions.

I will leave it there instead of taking up more of members' time. I am happy to take any questions.