Oireachtas Joint and Select Committees
Thursday, 14 July 2022
Public Accounts Committee
2020 Report of the Comptroller and Auditor General and Appropriation Accounts
An Bord Pleanála - Financial Statements 2020
Vote 34 - Housing, Local Government and Heritage
I welcome everyone to this morning’s meeting. No apologies have been received.
Please note that in order to limit the risk of the spread of Covid-19, the Houses of the Oireachtas Service encourages all members, visitors and witnesses to continue to wear a face mask when moving about the campus or within close proximity to others, to be respectful of other people's physical space and to adhere to all public health advice.
Members of the committee who are attending remotely must do so from within the precincts of the Parliament. This is due to the constitutional requirement that in order to participate in public meetings members must be physically present within the confines of Leinster House.
The Comptroller and Auditor General, Mr. Seamus McCarthy, is a permanent witness to the committee. He is accompanied by Ms Mary Henry, deputy director of audit at the Office of the Comptroller and Auditor General.
This morning we engage with officials from An Bord Pleanála to examine its 2020 financial statements. At the committee’s request, the board has included briefing material on the following matters which may be examined during the course of the meeting: the status of the implementation of recommendations made in the report, entitled the organisational review of An Bord Pleanála by the independent review group, dated February 2016; judicial reviews of the board’s decision, including the overall number; and how many are decided, how many were successful and the status of live cases.
The Department of Housing, Local Government and Heritage has provided a briefing note in relation to details of arrangements for the appointment of the chairperson and other members of An Bord Pleanála.
We are joined this morning by the following officials from An Bord Pleanála, Mr. Dave Walsh, cathaoirleach, Mr. Gerard Egan, director of corporate affairs and Ms Anne Killian, finance officer. We are also joined by the following officials from the Department of Housing, Local Government and Heritage, Mr. Graham Doyle, secretary general, and Ms Maria Graham, assistant secretary, planning division.
As usual, I remind all those in attendance to ensure that their mobile phones are on silent or switched off. Before we start, I wish to explain some limitations to parliamentary privilege and the practices regarding references witnesses may make to other persons in their evidence. As they are within the precincts of Leinster House they are protected by absolute privilege in respect to the presentations they make to the committee. This means that they have an absolute defence against any defamation action for anything they may say at the meeting. However, they are expected not to abuse this privilege. It is my duty as Cathaoirleach to ensure that it is not abused. Therefore, if witnesses’ statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with such directions.
Members are reminded of the provision of Standing Order 218 that the committee shall refrain from inquiring into the merits of a policy or policies of Government or a Minister of the Government or the merits of the objectives of such policies. Members are also reminded of the longstanding parliamentary practice that they should not comment on, criticise or make charges against a person outside the House or an official either by name or in such a way as to make him or her identifiable.
Before we move to the opening statements, and in the context of the reminder that I just read out, it is important that members are aware there are number of ongoing inquiries that focus on alleged conflict of interest and governance issues at An Bord Pleanála. To avoid the risk of prejudicing these investigations, as well as other potential proceedings that may follow from their conclusion, members must respect the fact that the review of decisions of the board is a matter for the courts. Because members should not comment on, criticise or make charges against person outside the House either by name or in such a way as to make him or her identifiable, I will not permit members to question or comment upon specific matters that are subject to the inquiries.
While we have requested information in relation to judicial reviews on the board’s decision and details of arrangements for the appointment of the chairperson and other members of the boards, discussions on these matters should focus on systems, processes and should avoid discussion of specific cases or individuals.
To begin I call on the Comptroller and Auditor General, Mr. Seamus McCarthy, for his opening statement.
Mr. Seamus McCarthy:
As members are aware, An Bord Pleanála is responsible under the Planning and Development Acts for the determination of appeals of local authority planning decisions and for the determination of direct planning applications for strategic housing and infrastructure development. The board also has responsibility for dealing with proposals for the compulsory acquisition of land by public authorities and with determining appeals under the Water Pollution and Building Control Acts.
The board's income in 2020 totalled €28.9 million. Some €19.2 million, or almost two thirds of the income, came from Exchequer cash grants via the Vote for Housing, Local Government and Heritage. Just over €6.7 million, or 23% was received in application fees. Expenditure in 2020 amounted to €31.5 million. Salaries and related costs amounted to €17.4 million, representing around 55% of the board's expenditure in 2020. Expenditure related to premises and other operating expenses totalled €5.8 million. The board’s expenditure and legal fees in 2020 amounted to €8.3 million. This was significantly up on the figure of €3.4 million, which was incurred in 2019.
This was significantly up on the €3.4 million incurred in 2019. About half of the expenditure in 2020 was accounted for by the board's legal fees in defending cases, with the other half representing payment of the costs of persons taking cases against the board following the settlement of cases. Following audit, the 2020 financial statements were certified on 30 June 2021 and a clear audit opinion was issued. The audit of the 2021 financial statements is ongoing.
I thank Mr. McCarthy. I welcome Mr. Walsh back to the committee. He was here in May of last year. As detailed in the letter of invitation, he has five minutes for his opening statement. I know the statement is a bit longer than that, and I want to grant him that time. I read the statement yesterday. I invite Mr. Walsh to proceed.
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.
I welcome the witnesses. In May last year, Mr. Walsh stated at a meeting of this committee:
Our existence and our reputation are based on transparency and accountability. Indeed, I would challenge anybody to say that there is anything other than proper consideration given to all applications and appeals that come before us.
Would he like to apologise now to the committee for those remarks?
Mr. Dave Walsh:
I thank the Deputy. As I said at the start, there are a number of ongoing reviews that have yet to be finalised. Until such time as they are finalised, we do not have any findings and recommendations arising from them. As things stand, I cannot comment any further in regard to any allegations that are out there and are being examined.
Mr. Dave Walsh:
If we extrapolate out from there being nine board members, including seven board members, the chairperson and the deputy chairperson, we can work that out. In fact, I have a total figure here that includes the salaries of both the directors and the chief officer. That figure was €1.52 million in 2021. There are three officials included in that, namely, the director of corporate affairs, the chief officer and the director of planning, as well as the remaining board members.
Mr. Seamus McCarthy:
The two salaries would be in the same kind of broad area but, as I understand it, they are not exactly the same. There used to be a link between the chairperson's salary and that of a judge of the High Court, but that link was broken in 2011. The chairperson's salary is now at the direction of the Minister and the latter has directed that it be at the level of a Secretary General, grade 3.
I remind the Deputy that An Bord Pleanála's finance officer, Ms Anne Killian, is in attendance. Perhaps the latter might be able to provide the figure the Deputy is seeking in the course of the meeting.
Mr. Dave Walsh:
It really depends on the year-to-year situation. The table I provided to the committee gives information in this regard. There were no judicial reviews lost in 2012. Eight were lost or conceded in 2013, six in 2014, three in 2015, eight in 2016, 12 in 2017, 12 in 2018, 15 in 2019, 32 in 2020 and 40 in 2021.
Mr. Dave Walsh:
That figure covers cases that were lost and conceded. There is a combination of court judgments against the board in some of those cases. To set the context, the difficulty and challenge for the board is that where we get a ruling from the court, which may be nine or 12 months after the judicial review papers are lodged, the board will, in the meantime, have made a substantial number of decisions, given the volume of cases we are dealing with, particularly in the context of SHD cases. If the court ultimately decides a particular issue or a particular interpretation of law is incorrect, that has knock-on consequences for cases that are still in the system.
At what point did Mr. Walsh become concerned that the SHD system was flawed and that defending the decisions of his board was not, to put it mildly, an effective use of taxpayers' money? An Bord Pleanála lost 32 of 35 cases.
Mr. Dave Walsh:
No. If anything, the evolving nature of case law and the complexity around some of the interpretations of the legislation that we are dealing with, including environmental and EU legislation, pose significant challenges. The board's job is to make decisions on the basis of the information it has. If we subsequently find out that a judicial review of a case that was lodged the previous year has identified a particular issue, why would the board continue to defend a similar issue in a case when it can instead concede and not tie up the court's time? It can cut its losses and the case can be remitted.
-----left, right and centre to the tune of approximately €8.4 million.
I want to move on. Last year, Mr. Walsh told the committee:
Either I, as chairperson, or the chair of a given meeting can escalate any case considered to require a larger board. Where someone says that a given matter should go before a larger board, that can be facilitated.
How many times did that happen between 2018 and the end of 2021?
Mr. Dave Walsh:
It is not about geography. It is actually about connections and connected persons, for example, whether the person in question knows someone who is impacted by the case or is potentially involved in it. I grew up in north Dublin. My mother is still there. If a case involving her street or the street beside her came before us, I would not be involved because of the potential risk of conflict, but if it involved the other side of the parish where I knew no one and had not lived for 30 years, there would be no conflict in my own view. However, it comes down to making a judgment and a personal assessment by each person, be that an inspector or a board member.
If an individual member of a telecommunications board, for example, made the decision in 75 out of 100 cases, would Mr. Walsh consider that unusual? No one in this room would view that as random. Would Mr. Walsh oversee the situation? Were something like that to happen, why would it not be picked up on?
I wish to ask about a board member failing to restate a disclosure. The change is verified by the board. I am curious. If an Oireachtas Member declared three houses one year but only one the next, we would rightly expect it to be investigated. Where is the board's oversight? There are nine board members and they submit disclosures every year. Is that correct?
There would not be a wad of documentation that would take months to go through. Does Mr. Walsh have oversight of that as chair? Would he look back over eight or ten years to see whether anything had changed that might ring alarm bells, for example, omissions? Has he encountered omissions and did he look into them?
The Deputy is asking about the consistency of the declarations. I do not want to waste the committee's time. Does Mr. Walsh or any other person within the management structure, for example, the deputy chair, examine declarations to see if there are inconsistencies between years? I believe that that is the Deputy's question.
If the current audit of cases discovers that decisions were made incorrectly or contained some irregularity or if some flaw comes to notice, what can the board do about them or can it only tell people to take An Bord Pleanála to court at the taxpayers' expense, which would cost the State millions of euro more in cases?
As Mr. Walsh said, An Bord Pleanála’s operations are set out in legislation. I am under the impression that when one deviates from what is set out in the legislation, board members require written permission from Mr. Walsh. Is that correct? For example, the requirement is that it is three or more board members who sit in-----
Mr. Dave Walsh:
The resolution actually stands, so we identify cases. There are certain types of cases that can be considered by two-person boards. The last time it was brought to the board was in July 2019 with a list of cases that could be considered by two-person boards in the interest of efficiency.
No, sorry. The 2016 review states that small-scale development proposals should generally be determined by a division comprising of a single board member, unless that board member disagrees with the inspector's report. Therefore, anything that is looking for a deviation from that must be larger-scale developments.
Mr. Dave Walsh:
The issue is that is a recommendation from 2016. In law, section 108 of the Act allows the board to identify a certain category of smaller cases, which includes extensions to houses, small agricultural developments and developments under a certain scale for commercial or residential use that can be determined by two-person meetings. That is-----
Mr. Dave Walsh:
I would say less than five probably. I think the majority of the cases are strategic housing and strategic infrastructure. There are rural houses but we do not do them because they are kind of not committed under the two-person board, nor is anything that might have a particular sensitive or complexity around it. Generally it is extensions and such. There are a few mast cases that have been considered by two-person boards because telecoms masts are allowed. However, again, there-----
Okay. We are talking about semantics a little bit, and about words, but I find the use of the word "board" here confusing. In the Committee of Public Accounts we are used to senior management in an organisation having a State board or a board and they are not in the organisation full time. They are given a small stipend, hold a quarterly meeting and there is oversight of the board. They have the power to remove senior staff or senior appointees if that is required. An Bord Pleanála does not have that kind of facility in the legislation. Is that correct?
I wish to move on to the code of conduct, which has come up already. Would it be accurate for me to say that in terms of the decision-making and the public trust that is required in An Bord Pleanála's work, the code of conduct is quite important in terms of its performance and that it would adhere to that?
Okay. Section 4.3 of the code of conduct states "No employee shall accept emolument for any outside employment which may in any way represent or may be reasonably interpreted as representing a conflict of interest on any matters pertaining to the functions undertaken by An Bord Pleanála other than with the written consent of the Chief Officer." I point out to Mr. Walsh the use of that word "emolument", because it is not necessarily salary. Obviously, it also includes networking, professional profile and any kind of benefit to oneself. If, again, there is a deviation from that code of conduct, written permission from Mr. Walsh is required. How many times has Mr. Walsh given written permission to an employee or a member of a board to deviate from that code of conduct?
How many times in the past three years have employees of An Bord Pleanála received any kind of permission to undertake public-facing events with industry stakeholders, particularly in the area of build to rent?
Mr. Dave Walsh:
We would obviously examine it and decide whether it merits any further investigation or taking steps. We have clear processes not just in relation to the code of conduct, but in relation to our grievance and disciplinary procedures. If there are any breaches that actually merit further action, I will take them.
Recommendation No. 8 of that 2016 report states, "The list of prescribed bodies that nominate candidates for appointment by the Minister, as set out in section 106 of the 2000 Act, is outdated and should be [revised and] include representation of society’s wider interests." Can we have an update on that work?
Mr. Graham Doyle:
The planning review that is being undertaken at present in conjunction with the Attorney General is looking at the appointment of board members. The previous recommendation was two members being appointed through open competition. The Minister had formed the view that he would like to have open competition across the board. There is a submission to him shortly, and that is part of this review work that the Attorney General will report on in September, with a view to enacting legislation later in the year.
I thank Mr. Walsh for the presentation. I wish to deal with the issue of judicial review. Mr. Walsh said that in 2020 there were 83 new cases and in 2021 there were 95. In respect of the 83 cases in 2020, how many of those have been dealt with or are they still in the court system?
Mr. Dave Walsh:
I do not have them with me, but it is probably fewer than ten over the last few years. The board would have taken a couple of cases to seek clarity as much as anything else in respect of cases it lost. We have taken probably three or four cases during my time. It is probably somewhere around 5%.
Mr. Dave Walsh:
There are a few. To be fair, the court is trying to expedite most of the court cases. The proposals around a planning and environmental court would possibly assist in expediting it. On that point, not actually having a final ruling for 12 or 18 months when we are continuing to make decisions is the ongoing challenge. How does one retrospectively address some of those issues in the cases that are before the courts or in cases thereafter?
Mr. Dave Walsh:
It is, indeed. It is important to understand that it is a report that has fed in a lot to the board's work. All the 36 actions relate to the actions on which the board is leading. The board has partially implemented another 21 of the remaining actions but we have not completed them all. Taking those two together, that is 57 of the 70 actions. Some 31 of the actions that remain are legislative issues that are being considered as part of the planning review and the Department can address those. The board has not been sitting on its hands doing nothing on these issues. When we were preparing our five-year strategic plan in 2018, we incorporated all of what we saw were the pragmatic and reasonable steps and actions that were recommended within the report. We have built them into our five-year strategy. That strategy is live until 2023. As part of that process, every year the board adopts what it calls an annual delivery plan, with clear actions and outcomes to be taken.
Mr. Dave Walsh:
Some of them are kind of impractical. A good example would be a recommendation that the board should use local offices when it has oral hearings in regional locations. A lot of the oral hearings the board conducts in regional locations are compulsory purchase order, CPO, related cases that often involve the local authority so it would inappropriate for the board to be organising a meeting where people are challenging a compulsory purchase, possibly an application that a planning authority either brought or supported. That is an action which in some respects, where there is no local authority involvement, one could say is reasonable to save money for the taxpayer and use available space within a local authority office but it cannot be done in all cases. That is the subtlety around how the board has looked at each of the 70 actions on which we are leading.
Regarding the 31 which Mr. Walsh says require legislative change, has there been engagement with the Department about that change? On the one hand there is a report recommending changes, and on the other, the board is saying legislative change is required. Why do we not have that change six years later?
Mr. Dave Walsh:
Again, that is probably a question for the Department to answer. Certainly, there has been active engagement. We have an implementation group that comprises officials from the Department and from the board to look at all the actions and how they are being addressed. Some of them may well ultimately not be implemented. That is not to say that the recommendations were not made in good faith but they probably do not fit the statutory or the structural aspects of the board. It is an external review that provided observations. The Department has been looking at a range of legislative reforms. Since the report was issued in 2016 we have had major changes through strategic housing and we have had many other disruptions and new functions being taken on by the board. I do not know if the Department's representative would like to comment.
Mr. Dave Walsh:
Anything over 100 bed spaces is the qualifying threshold for it. The number we have given relates to judicial reviews lost as opposed to judicial reviews received because something that is received in a year can still take a year or a year and a half to get a ruling. I can revert to the committee and give more detailed information on how many of the 126 were subsequently judicially reviewed in the courts.
With regard to the planning process, we now have a problem in that regard in the sense that there is the local authority, which is on the front line, the Planning Regulator and now Irish Water is technically in the planning loop. If a local authority wants to carry out any development, it is tied by Irish Water as regards whether Irish Water can provide a service. Does Mr. Walsh not think that we have a particular problem in that we have so many players in the field now? There is the local authority, Irish Water, the Planning Regulator, An Bord Pleanála and judicial review. There are quite a lot of people in the field now with regard to planning. Is that not causing many unnecessary delays as well?
Mr. Dave Walsh:
It certainly underlines the complexity of looking at any kind of development, whether it is the local authority and the Office of the Planning Regulator looking at it as part of the development plan process or the board and local authorities looking at it in making decisions. Irish Water is obviously not the only body involved. We have a number of statutory consultees that participate in-----
Absolutely but it is one of the principal ones. I know of one case where more than 50 houses have been built but cannot be sold for the next two to three years because Irish Water cannot provide a service, even though that was not initially indicated.
Mr. Dave Walsh:
Engagement with stakeholders and statutory consultees is referenced elsewhere in the 2016 review. The board periodically meets with representatives from Irish Water, Transport Infrastructure Ireland, TII, and other statutory consultees to understand and discuss capacity constraints and policy issues that impinge on the board's decisions. As part of their own development, they have programmes of investment works coming through. The dialogue is very important to understanding the context in which the board makes fairly large-scale decisions. The more co-ordinated efforts there are - and the SHD process-----
Mr. Walsh mentioned co-ordinated efforts. I have come across a situation in which a State authority objected to a school being built by the Department of Education. It had to go all the way to An Bord Pleanála. Even though undertakings were given to that State authority, it still insisted on a decision from An Bord Pleanála.
Does Mr. Walsh not accept that this is taxpayers' money and that there should be a better mechanism for dealing with something like that? In this case, there was engagement. This cost no one working in that State authority anything but it cost the taxpayer money.
Mr. Dave Walsh:
One of the benefits of the SHD system, which will be continued under the large-scale residential development system, is that an opportunity is given to flush out some of these issues through pre-application discussion, to identify whether there are constraints and to engage with transport, education and water services and connectivity people. Greater dialogue at the start of the process, which was of use in the SHD process, can stand to address issues before a point is reached where a decision has to be appealed to the board.
Did he not? Remy Farrell is now undertaking a review for the Department, the Planning Regulator is carrying out an investigation and the board is carrying out an internal audit, which Mr. Walsh has described. Have the terms of reference for that internal audit been published? I am not asking Mr. Walsh to outline the work being done but whether the terms of reference are available.
During the aforementioned meeting of 13 May 2021, I outlined a scenario. I said:
There will then be a meeting with three representatives, two of whom - who will remain unnamed - may decide to overturn the recommendation of their own inspector and the local authority's decision, while providing minimal information as to how they came to that decision. It is quite possible that these representatives will never have set foot in the county, never mind having looked at the site in question. I do not aim to cast aspersions on any members of the board, current or past, but does Mr. Walsh see how there is the potential for corruption in such a system?
Mr. Walsh responded:
I completely reject any allegations of corruption. Sorry Deputy, I think it is unfair to make any claims like that.
He said this even though I had been very clear that I was not making any claims. As Deputy Munster has noted, Mr. Walsh also said:
I would challenge anybody to say that there is anything other than proper consideration given to all applications and appeals that come before us.
Given that there are now three separate reviews, investigations, audits or whatever you want to call them under way, does Mr. Walsh now accept that there was, in fact, scope for corruption in the way in which the board is structured?
Mr. Dave Walsh:
In any organisation and in any process, there may be scope to not fully apply the rules and requirements. The challenge for the board, as with any organisation, is to identify instances of this and to take swift and decisive action. The outcome of the reviews will provide me with evidence and with recommendations for appropriate action.
Does Mr. Walsh not consider it a failure on his part that it is taking all of these investigations to investigate, review and audit all of these matters and that there was no system in place to identify and address issues as they arose?
Mr. Dave Walsh:
The system is in place. Notwithstanding the issues that have arisen in recent months, the board has clear systems in place. We receive a lot of correspondence from individuals regarding cases they may have been involved in, whether during or after the process. We also receive other queries and we receive correspondence from Oireachtas Members. There is a process in place to deal with any query that comes through. While I cannot speak on behalf of the Minister or others, the board has a process to examine every matter raised with it.
Here is the problem. If anybody, regardless of how powerful they are or anything else, has a fundamental difficulty with a decision made by An Bord Pleanála, the only recourse available to that person is to take a judicial review, JR, or legal action. There is no other mechanism. Mr. Walsh has said that in respect of cases regarding which very serious issues have been raised. Even if the board's audit, Remy Farrell or the Planning Regulator determines that a decision was made that relied on bad practice or corruption, those involved will have no recourse other than the courts.
This is the problem. Reading through the transcript, we see that several members from across different political parties raised issues on 13 May 2021 with regard to the soaring legal costs, the scope for conflicts of interest and the potential trends that were emerging.
Members dealing on a part-time basis with oversight of 250 bodies were able to ask him about all those issues, and his response to all of them was that there is nothing to see and that processes and procedures were in place. Does he now accept committee members were able to identify it and it was journalists, not An Bord Pleanála or any system it has in place, who exposed the issues leading to the three reviews, when it was Mr. Walsh's job to do that? Does Mr. Walsh not consider that he has failed in his job as Accounting Officer to An Bord Pleanála?
Mr. Dave Walsh:
I do not. I do not mind who raises issue, whether it is individuals, Oireachtas Members or journalists. We have a transparent system whereby people can come in, view files and get access to any records associated with decisions. If people then bring issues to our attention for consideration or examination of what they consider to be potential non-compliance with the requirements of the procedures or code of conduct, we look at those issues.
In relation to the JRs, the Deputy says the committee highlighted the issue last year. Of course we do not want that number of JRs but the reality is that in the system and the decisions the board takes, the courts have a role and individuals have recourse to that. That is the only line of appeal because the board is dealing with the applications as opposed to-----
The courts have found that the board was finding on an illegal basis in respect of those decisions. Despite that, the board continued to find on the exact same basis and was repeatedly taken to court where it repeatedly lost, to the point where €8 million per year, one third of the budget, was spent on legal fees. Mr. Walsh did not say "Stop".
Mr. Dave Walsh:
As I said earlier when we were talking about the court cases, if a judicial review is taken on an issue, there can be many reasons, from compliance with EU directives to requirements around associated documentation. It is not simply the same issue in every case. There is a time lag from when a JR is lodged to when it is concluded and the court makes its ruling. In the meantime, a significant number - probably eight - SHD applications are decided by the board every month because that is the statutory timeline we have to make those decisions. If we wait 12 or 18 months, we have a body of cases either in the courts or-----
My time is running short. I put it to Mr. Walsh that as Accounting Officer he had an obligation to identify an emerging problem, an obligation to ensure case files were being distributed to board members on a random basis and an obligation to ensure this body would not bring the planning process into disrepute, which is exactly what has happened. Nobody has confidence in An Bord Pleanála as it stands, and that happened under Mr. Walsh's leadership. I believe his position is untenable and do not know how he has not come to the same conclusion.
Mr. Dave Walsh:
The board takes lessons from every judicial review. We get legal advice on all the actions, and comments from the board. We integrate those into our learnings for the inspectorate's analysis and the board in terms of the decisions it can and cannot take. On average, because of the judicial reviews and the lessons we have built in, the inspectorate reports have probably increased in length by 50% to 70% purely to cover off many issues of which the courts have said there is insufficient analysis. To say we are not taking any actions arising from the judicial reviews is incorrect. In the last two weeks, the Supreme Court made rulings on two similar cases decided by different judges with different outcomes. Even the courts are struggling to identify the issues.
I welcome Mr. Walsh and his colleagues. It is good to have them before us again and it is certainly timely. I will take up from what Deputy Carthy touched on regarding the 2020 expenditure of €8.3 million in legal fees. That was significantly up on the 2019 figure of €3.4 million. However, the number of cases is down 12% on the 2019 figure. What is the difference? What accounts for more expenditure yet a 12% reduction in the volume of cases?
Mr. Dave Walsh:
It is the cost associated with preparing for and defending judicial reviews and the length of time these cases take. The longer a case requires to be defended and continues through the courts, the greater the cost. We deal with very expensive litigation in the higher courts. That adds to the overall cost of the board. As the Comptroller and Auditor General has outlined, roughly half of the costs we incurred were our costs and half were incurred by third parties where we lost. We do not defend cases where we feel there are significant weaknesses or flaws. In cases where our legal advice is that this is a difficult one, rather than delay, incur further costs and tie up the courts, we would take concessions so the case can be remitted. Cases that were lodged in 2018 were only coming to court in 2020 and 2021. Some of those new JRs are being deferred into the court system at that point.
Mr. Walsh said about half the expenditure was the board's legal fees and the other half was costs awarded against it. He said cases have become more complex, but what has the board done to try to protect the taxpayer?
Mr. Dave Walsh:
As I mentioned to Deputy Carthy, for every case that is opened, we get legal advice from our team to assess the strength and potential weaknesses within the board's processes and decisions. On the basis of that advice, if we feel it would be more expedient for the board and taxpayer to say there may have been an error, we hold up our hands. When we are dealing with 3,000 cases per year, sometimes errors are made, there are omissions or insufficient justification is provided in relation to a decision. Rather than pursuing those and incurring huge costs, we concede those cases. If any advice comes back from those kinds of cases or cases that have rulings at the end of the process, we build those back in. We have an inspectorate-----
Mr. Dave Walsh:
We have a legal affairs unit comprising staff within the board who are experienced in interfacing with and managing our solicitors. Two solicitor firms service us and we have a range of barristers to draw on.
A recommendation in the 2016 report was that we should bring in and hire in-house counsel. We tried that and got sanctioned by the Department to advertise for in-house counsel. We did not get anybody who was willing to come in at the salary level we were applying for.
Turning to two other items, Mr. Walsh mentioned the inspector reports. A number of these are overturned. Despite the inspectors' views the board takes a different decision. Does Mr. Walsh have a percentage of how often that is done?
Mr. Dave Walsh:
In recent years I do not think we have actually tracked the percentage. The last figures I have seen were in late 2019 or thereabouts. It can go up and down but generally it falls between one in six or seven cases is overturned. Apologies, I have an update here, in 2020 some 90% of the recommendations made by inspectors were generally accepted by the board. That was 89%, so it is 10% or 11%.
Mr. Dave Walsh:
Generally it is three, sometimes four. When we have two quorums of three we can actually have two meetings running concurrently. Because we are dealing with 3,000-odd cases a year the board would probably convene between 700 and 800 meetings a year. That requires meetings in the morning, in the afternoon and obviously if we have a full available board as in nine or ten people we can actually have three quorums at the same time.
To me, a quorum is the minimum on which to operate. To my mind to operate on a minimum and have several meetings running concurrently would not be satisfactory given the outcome and certainly the position Mr. Walsh is in today. Is that going to be reviewed?
Mr. Dave Walsh:
From my perspective, I am dealing with a large backlog of cases in the system at the moment, so the more board meetings I can have and we can make decisions on the quicker I will be able to work down the backlog of cases we have. In regard to large-scale cases some fairly large infrastructure cases would mean bringing all available board members in. As things stand at the moment I have eight board members available to me. There are two divisions, strategic housing which has four members and strategic infrastructure has five members. Three would be the norm. I am satisfied that provides enough variety of views and context.
In my remaining minutes I will turn to the organisational review of 2016, all 255 pages of it. It started in July 2015 and was published in 2016. I am quoting from the senior counsel's own statement that says "The Review Group was set a tight timeframe set by the Minister for carrying out its tasks. Sometimes that is the best way." Obviously only 36 of the 101 recommendations have been implemented. Why is that?
Mr. Dave Walsh:
As I said, a number of them relate to legislative review issues. There are 31 of those included. Of the 70 that remain for the board to deal with 36 have been fully completed, about 21 of them are in train and partially completed, and there are others that we may not implement at all because some of them are not, as I mentioned to others, pragmatic in the context of how the board operates and indeed what is appropriate. We have integrated many of these actions into our five-year strategy. The fact that the record shows only 36 complete does not necessarily reflect the fact of broader implementation.
Mr. Dave Walsh:
It is an ongoing development. The system went live in October 2017. The board has been using that system. Indeed as I said in my opening statement we had an online system that all staff could avail of remotely. We are continuing to develop it. We took on new functions once the initial development had been agreed in 2015. We went live in 20107 and we plan to continue to enhance it with a view to ultimately having online capability later this year.
There is a touch of déjà vucompletely and utterly about the discussion this morning. Given Deputy Carthy's comments and how he put it, and Deputy Munster as well, Mr. Walsh does not feel the need to apologise because there are no results of the review. There are €8.2 million in legal fees. Does that not warrant an apology?
Mr. Dave Walsh:
I think it is the reality of the work the board does in that we actually have to make complex decisions. Indeed only yesterday in the Dáil there were discussions around the complexity of some legislative amendments coming through. When you are navigating a whole range of views there are of necessity some that will be challenged in the courts-----
Well tell me, if Mr. Walsh is accountable, what has he done to mitigate all of the conceded 40 cases? There were obviously illegal actions, unlawful actions, either by board members or inspectors that warranted him to concede 40 cases this year and 32 last year. What measures has he taken to prevent it in the future?
Mr. Dave Walsh:
I will give an example, without going into individual cases, about what the courts found about one and a half years ago in regard to the analysis that the board reports and the board decisions were not providing sufficient information on analysis around sunlight and daylight. It is a very simple issue. One might say "where is the justification to enable us to satisfy ourselves on that issue?" That actually affected a number of cases. The board conceded those cases but since then - and back to the issue I mentioned to both Deputies Carthy and Devlin - the board has integrated those learnings into the reports so that now every single report that comes through on any file like that covers fully all of those aspects. The simple question is "How have we learned from those lessons?"
No, Mr. Walsh is on the same narrative as he was on last year which unfortunately for me means he is learning nothing to come in and say the same thing this year when he has a 300% increase in legal fees. It is up to the courts to interpret Mr. Walsh's mistakes. What is wrong here with An Bord Pleanála is gross negligence. If it was in the private sector somebody would be sacked. Who has lost his or her job because of this? Who has been reprimanded to the extent that we could justify wasting, squandering €8.2 million of taxpayers' money? Who has Mr. Walsh sanctioned?
So in May last year I, Deputy Carthy and all the other members of this committee, brought all the deficits to Mr. Walsh's attention, and he ordered a review a year later. Was it after or before the media exposed it?
I will look for the submission to quote what Mr. Walsh said about An Bord Pleanála's external auditors last year. He said:
I receive a report annually from the independent, external Chair of the Audit and Risk Committee and the Committee’s most recent report has confirmed that our risk management processes and internal controls are operating effectively.
Hold on. This year's does not say anything like it. This year, the same paragraph only has the first sentence. Mr. Walsh's opening statement says:
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.
It does not say An Bord Pleanála got a clean bill of health.
That is grand. But the board has made no move to remove them. It will just go through the normal tender process. It is happy with them. Would Mr. Walsh say that? As someone who sat here last year, and we are now in the middle of three reviews with a statutory body, is Mr. Walsh happy that the board has the correct information with what has transpired in the past 12 months and what we are reading in the media?
Would Mr. Walsh accept then that if section 146 of the Planning and Development Act 2000 dictates that the board must release the minutes of meetings, that is its legal obligation, but if its legal advice which it sought because of the review said not to, now that is now the subject of judicial review.
-----and Mr. Walsh does not do it because he got legal advice to the contrary, regardless of why it got the legal advice, if it does not do that, that can be the subject of judicial review. Would Mr. Walsh agree?
I thank the witnesses for their attendance. It has been an interesting and informative debate. I will take a slightly different approach or angle to the discussion because I will focus on housing delivery. Up and down my constituency I have people, and young people in particular, who would like to live in or remain in areas in which they have grown up. As a councillor and Deputy, I have felt long-term frustration in dealing with strategic housing applications and other types of housing applications but not seeing that turn into places for such young people to live. That is what I wanted to follow up and I suggest there is a strong role for the Department in that.
In respect of the strategic housing developments, what is the total number of units that have been applied for? How many of those have been granted permission and how many were commenced or built?
Ms Maria Graham:
I will get precise numbers for the Deputy but broadly speaking, in Dublin there are approximately 40,000 extant planning permissions and there are 70,000 to 80,000 nationwide. We will be monitoring the number of strategic housing developments granted by the board and not quashed, as well as the timeline to delivery. Normally speaking, one would expect to see a development start within two years but we were concerned at the beginning of Housing for All that many of the permissions are not turning into housing. That is why there are a number of actions in Housing for All dealing with issues around viability, such as the Croí Cónaithe cities scheme, with the provision for the first homes launched during the week. There are also broader issues regarding cost of construction because many of the strategic housing developments are very large and they tend to be apartments.
We know that the costs of building them are quite high. From a policy perspective, we look at the outcome of the board, which gives us the data. We then look at the data in terms of what has started. We can pass that on to the committee.
From a public representation perspective, it is very frustrating to see what I suggest are aggressive applications being made relative to the neighbourhood. People wonder whether the developer is doing it deliberately in order to be constrained. It deeply upsets the local community. If an even slightly softer approach were taken, people would be on board because they want to see the development of housing. It is just a little pushy and aggressive. If there are nine storeys instead of seven in an old, established residential area, people become very upset. Councillors make all these observations at local level and the application goes to An Bord Pleanála. Mr. Walsh might respond as to how many times applications of that nature have been varied by An Bord Pleanála to be more consistent with the local environment. My major concern, having gone through that process and with people being very clearly upset, is that we still need houses but I do not see them getting built.
I investigated some of this in my area. Ms Graham is right about cost and that is one issue, but why are we spending time on applications without being sure these things can in fact be built? Is there any measure of consideration given on that side? The significant amount of State time, energy and cost to assess the applications, including local energy and investment and the role of the local council, is one thing. Difficulties with Irish Water come up again and again. There is then the matter of judicial reviews. I have spoken to developers to try to weed out what the specific issues are, either with the council or Irish Water. Why are they not developing in the area I represent where I know people need housing? Judicial review comes up again and again. I have no difficulty with residents associations, or people directly affected who have been involved in a process or are adjacent to it, taking judicial reviews, but my question relates to judicial reviews being taken where the applicant had not been previously engaged or involved in any sense. Does Mr. Walsh have any sense of the proportion of judicial review applications where an applicant had not been involved in any way prior to taking such an application?
Mr. Dave Walsh:
On the first question on how many times the board has varied designs or decisions, I cannot say because I do not sit on every single case. We do not track whether a floor has disappeared or a block is amended. Sometimes they are subtle and sometimes not, but each case is assessed on the basis of its particular location and its proximity to other developments. It is very difficult to say that a five-, three- or seven-storey building here will not have the same impact as a seven-storey building somewhere else. Judgments and assessments are made on the basis of a building's impact on daylight and sunlight, including in respect of its future occupants. We often think about what is happening for properties and people who are living in the area already, but one of the key considerations is what the quality of life and space and size are. Do they meet the minimum requirements? Do people get enough sunlight and daylight into their amenity space or balcony? I am aware and have sat in meetings where there have been instances where not only have we removed some floors, as recommended either by the planning authority or the inspector, but in some respects we have removed some blocks, particularly on a larger scale, where we feel open space is at more of a premium. The board has the scope to make those amendments and to look at it, but our job is not to redesign the thing to make it right. Where we feel those additional measures can address the key concerns and requirements around standards, that is an option open to the board.
On the Deputy's other question on parties who may not have participated in the process, judicial reviews are generally taken by people who have engaged, either as an observer in the local authority or as an observer and submitter in the board's direct applications. That is a requirement for someone to then take a judicial review. It is irrelevant to the board whether they are raising major or minor issues. If somebody makes a valid submission and observation on an application or appeal, that person is party to the decision and will get the due consideration that everybody else will get. Obviously, if the individual only identifies one issue or talks about compliance with EU law, that is as much a consideration as whether it has an impact on amenities in a residential neighbourhood. That is the practical approach. I am not sure if that addresses the Deputy's question. I do not have numbers on it but that is the reviews.
I know of local cases where people have not been directly affected. It is probably best not to go into individual instances. What does the Department estimate the additional cost of judicial reviews to be? A judicial review can of course be taken but when it comes to delivery, I am concerned about people who actually want to buy places to live in. What is the cost inflation implication of the duration of a judicial review on delivery of the end product? If the project has been costed at the outset, what is the cost implication of a standard judicial review?
I ask Mr. Doyle to give me an example for an apartment. A figure of €2 million does not mean anything on a big development but, for example, if a young person in my constituency wants to buy an apartment that is being priced at €400,000 because it has gone through a judicial review and all sorts of different things, what cost is being built in to anticipate judicial review?
It is very important to know that. At the end of the day, the cost is being passed on, whether a judicial review is taken or not. If a risk premium is being built into the financing of a project in anticipation of such a review, which I again say people are entitled to take, that is a meaningful effect on cost. People are telling us that. It is important the Department be aware of that, particularly at a time of such acute cost inflation. Will the officials come back to us with some analysis of that?
Mr. Graham Doyle:
We could try to do some analysis on that. It is one of the reasons for the move away from SHD for large-scale developments back to that two-stage process to try to have fewer scenarios that result in judicial review. The hope is that will bring down those numbers and, therefore, those costs the Deputy mentioned.
On the question about variations, I understand that An Bord Pleanála takes them on a case-by-case basis and that is fine. From a transparency and public confidence perspective generally, however, if we go back to the people who live beside applications, and this will persist in respect of the new system also, it is important people see that the board can vary and has varied, and that they see the way in which that can and does happen. Is there any analysis that can be done on the 2020 figures, for example, of the number of occasions where something was varied relative to the application? For example, there was a very significant application to site a co-living space in my constituency, which is the subject of significant discontent. The board varied it very considerably but that never really fed through in the same way. It is important from a public confidence perspective to know whether, where and how that is actually happening.
Mr. Dave Walsh:
We can look at it to see if we can get some information. The Deputy mentioned public confidence and the understanding of the system. It is important that over the past three or four years, the challenge and complexity around what the board has been dealing with in relation to SHDs primarily relates to the fact that national policy, that is, the national planning framework, NPF, and national guidelines have moved far more quickly than some of the local plans. The board is looking at national as well as local policies. It has to try to balance and assess whether the local plans, which predate the national planning framework or the apartment guidelines, fit in with those. We are now at a point where because most of the planning authorities' new development plans are being updated to take account of the NPF, the regional spatial and economic strategies, RSESs, and all the new updated guidelines, there will be far less need for the board to materially contravene many local plans because they are not in line with national policy. Many of the issues to date, and much of the controversy or concern, arise from the fact we have someone looking for something that is outside the density or height levels. When the new plans come through, that will make it clearer. As the Secretary General said, it will certainly be relevant when it comes to the LRD processes that are coming through.
I welcome the witnesses.
I have a number of different questions. The officials all know because they were there, but for clarity Mr. Walsh was assistant secretary when I was Minister, though in a totally different area, to be fair.
I commissioned the organisational review under Gregory Jones in 2016 because I believed it was necessary as it had never been done before. We had never had a review of An Bord Pleanála and I had concerns. All the actions have been listed as either "complete", "ongoing" or "to be determined". What is the breakdown? There is also a note saying a number of issues cannot be dealt with until the review of Housing for All is complete because there is a legislative capacity on that, which I understand because I have asked about it in the Dáil. However, there have been six years in between. There are so many issues here that have never been dealt with. For instance, recommendations Nos. 8 to 12, inclusive, on the appointment of members to the board, have never been implemented, and it is pretty obvious that they have to be. One of them is basically that it said the nominating bodies were completely out of date, which seems a pretty obvious one. Why then have they not been implemented and what is the breakdown regarding the three areas under which the board is claiming status on all the recommendations, six years after it was completed?
I understand that but surely within the Department, there would have been over a period some suggestions to the Government that we have to deal with these issues. For instance, one request I have is that the officials give us the dates and minutes of any ministerial management advisory committee, MINMAC, meetings over the six years referenced in this review.
Mr. Graham Doyle:
Okay. I will come back to the Deputy on that. There is obviously an implementation group that was set up. I think that was something the Deputy mandated himself at the time, as I understand it. I am more recent to the organisation. In the context of the recommendations around appointments and open processes, I think there was a recommendation in the review that two members be appointed by an external process. What we are now moving to will of course require a legislative update as part of the review of the planning legislation. I think this was the first recommendation in the review in 2016. This has been worked through over the last 12 months. There has been intense engagement across a number of forums, particularly with the Attorney General's office, around that. The Minister is very much in favour of moving to open recruitment across the board.
Mr. Graham Doyle:
I do not think it was the case that nothing was done. A number of these matters will require debate, policy decision and ultimately legislation by the Oireachtas. Of course, all of this has been done at the same time as some very significant planning changes that have been made over recent years, including various things we have mentioned today, from SHDs to large-scale developments to a whole bunch of other things.
Okay. From a time and efficiency point of view, the best way for us to deal with this is by looking at the breakdown of the actions requiring legislative change that fall within the Department's remit. Will Mr. Doyle provide for us, from MINMAC minutes, any references to any of those actions? Then we will see if any progress was being made on any of them. If they were being pursued, surely they would be referenced. I have a concern that nothing happened on many of them until the review of planning legislation, which I welcome. I would like to get to the bottom of that.
Mr. David Walsh:
About 70 of the actions relate to the board - it has control over them. Of those, as we outlined, 36 have been actioned and completed. Of the remaining 34 actions, 21 have partial implementation. Again, maybe it is not detailed in this. As an example, we undertook some reviews of oral hearings. We undertook a review of our oral hearing processes. One of the recommendations set out in the report talked about treating the oral hearing process very much like the court, so you have grounds and legal papers.
I do not want to go back through the questions on the legal fees but I ask for a piece of information. Can I get a breakdown in tabular form of the costs relating to each case the board has lost or conceded over the past five years? That is breakdown per case. On the other side of the tab, I would like to know who were the board members who made the final decision. In other words, I want the case, the costs and the board members who made the final decision, in tabular form.
Yes, I would like them too.
I have a real issue that is probably going under the radar. It relates to competency in EU law. There are five planning cases from Ireland at the Court of Justice at the moment and another three on the way. They all relate to the interpretation of the environmental impact assessment directive or the habitats directive. That is eight cases. It is quite an expensive situation for us. Why is the board's decision-making not able to give proper effect to EU law to avoid these scenarios? Has the board enough competency? Is there a deficiency in knowledge of EU law? Is there a requirement for training internally? This is seismic and is going to cost a lot of money. Dare I say it, many of these cases could be lost. Why is it happening so often? Is there a deficiency in capacity within the board? Why are these not being intercepted so the actual directives are being interpreted directly?
Ms Maria Graham:
I will make two points. It is something that was very much in the mind of the Attorney General in the context of the planning review. Obviously, the board is working in the legislative frame that binds it. We were before the Oireachtas joint committee recently on the question of environmental assessment. One of the aspects we are looking at is that the new legislation would have all of the environmental piece in one part with clear signposting. That would be to ensure we are transposing things correctly, it has the constitutional public participation requirements and it is clear for future-proofing with regard to anything that comes from the court. From a skills perspective, we have obviously had a lot of legislation, including new functions in the marine area, going to the board so the nature of the skills required on an ongoing basis is something we have discussed with it.
One very brief question. When I was on the previous Committee of Public Accounts, an issue arose relating to a decision made regarding a hotel in south Kerry that was given planning permission and then turned down by the board.
It was revealed-----
I will not get into that. It is on the record anyway. One of the submissions turned out to be fictitious, if the witnesses remember that. It got all the way up to the end of the planning process. This was acknowledged. In fairness, An Bord Pleanála responded to the issue at the time. To me, that means the decision-making process is not correct, because a component of that decision was something that should never have got through. As a result, the hotel ended up not being built in south Kerry and many people did not end up with jobs. It had a dramatic impact on a small community. This has been well reported on. What has happened since then to make sure that can never happen again? What changes have been made?
Mr. Dave Walsh:
When we communicate with people who make an observation, we need their contact details, name and address. We send correspondence back to them to acknowledge it. If the correspondence is returned, it is a sign that it may be the wrong address or that there may be another issue. We would pursue it. We often send three or four letters as reminders, sometimes in registered post. If there are no responses and nothing can be delivered, we have to make a call about whether that is a valid observation. That is the normal practice generally. In the case the Deputy is referring to, without going into details, that was not the only observation on that particular case.
I welcome the witnesses. I want to come back to a few points that others have raised. I sought the terms of reference and An Bord Pleanála sent them to me. The first paragraph states that recent media reports have raised a number of matters relating to conflicts of interest which have potentially arisen in decisions on particular case types, certain other matters relating to the operation of two-person boards, and general procedures relating to the allocation of case files and amendments to inspectors' reports. Will the witnesses clarify what case types are concerned? I know it includes mobile phone masts. Does it include SHDs or other particular case types?
Deputy Hourigan asked about the two-person quorum. Mr. Walsh described a case of a mobile phone mast where he had set the procedures. My understand was that once that decision has been made, it is open-ended about that particular type of development. Section 108(1B) of the Planning and Development Act states:
The resolution referred to in subsection (1A) shall specify the functions of the Board or division of the Board which may be performed in a meeting with a quorum of 2 and the period of time during which the specified functions may be performed.
That certainly does not indicate to me that it is open-ended, but that it is time-limited. Is it time-limited? Has a review happened? What is Mr. Walsh's reading of the situation?
Mr. Dave Walsh:
The initial two-person resolution was in 2016. There was a further one in mid-2017. The most recent one was in July 2019. We will send around a copy of it. I have taken action to suspend the use of two-person files while the review is ongoing so no two-person meetings will take place until I have seen the conclusions and outcomes of the review.
I want to come back on a point raised by other members relating to the restrictions on making a decision in the area in which one resides. Mr. Walsh described where he grew up. I know what he is saying. It is not really open to interpretation when a person lives somewhere. Mr. Walsh said it is up to the individual board member to declare that conflict. What oversight is there to make sure that happens and there is quality control?
Mr. Dave Walsh:
The individual will know whether this is a case which is too close to a place that they know or work in, or to a connected person. The code of conduct, under section 15.6, states that where there is any doubt about whether there might be a conflict of interest, the matter shall be resolved by the chairperson.
I understand that but these codes of conduct are only as good as the control systems that oversee them, do reviews and so on. Where are the control systems? What Mr. Walsh said earlier appears to leave it to individuals and their personal integrity rather than having systems to make sure.
Mr. Dave Walsh:
Section 150 is where the code of conduct goes beyond the legislative requirements. It states, for the avoidance of doubt and in order to preserve this, that anyone who thinks there might be a conflict either with a location or, more likely, a connected person, should raise the matter with a board member.
What systems does the board have to make sure? It cannot be left to the individual. Organisations need systems to make sure they have some level of quality control in case somebody does not raise an issue. The system needs to make sure that does not happen.
Mr. Dave Walsh:
One safeguard is the fact that it is not just one person making the decision. That does not address the Deputy's particular question. Board members are probably involved in 500 to 700 cases each over the course of the years. Cases might involve someone who is not a direct family member, who a board member worked with, or who lived in a house 5 miles away. It requires trust and responsibility. This is where the code comes in.
-----because it does not give me any confidence that there is a system. Maybe these reviews and inquiries will show that. Regarding changes to planning law, such as to SHDs, what interaction does An Bord Pleanála have with the Department?
Mr. Dave Walsh:
The board does not make any policy and does not provide any advice. As was announced, we generally provide information and data based on the cases that we are dealing with. We do not advise and we do not recommend changes.
Where there are case law issues that might be of relevance to failings in the legislative system, we can flag those.
I would have raised the issue of the planning appeals board, and there was a big organisational review in 2016. A big change happened straight after that, in December 2016, in that it ceased to be the planning appeals board for some cases. I predicted in the Dáil at the time that there was only place that people would go.
I predicted we would see actions in the courts because the appeals mechanism was to be taken away. I asked Mr. Walsh whether he saw a flaw in that system, or something to that effect, but he did not see that was the case when he was last in with us.
SHDs are being phased out. We saw a new one the other day because we had some interaction, which surprised me because I thought there was a hard deadline, but obviously not. If we look at the profile of SHDs and judicial reviews, we can see that it escalated once the opportunity for people to appeal was taken away. Does Mr. Walsh not see in retrospect that that changed the dynamic completely and that it was a major flaw? Would he not have alerted Government to that being a major problem?
Mr. Dave Walsh:
We have a performance delivery agreement with the Department where we report monthly and annually on activities and the budget elements. The Department is well aware of the number of judicial reviews with which we are dealing and the costs associated with those, because they feature in our annual reports and budgets. With regard to the Deputy's fundamental question about whether SHDs have been shown to be flawed, it is not question for the board because the board implements whatever Government and Oireachtas policy is. We had the same issue when SID came in back in 2007. There were many judicial reviews as the legislation was being tested. The difference is that there might have been one or two cases per year that would have been impacted by those decisions. In the intervening period of making judicial reviews and having judgments, we are seeing 50 or 60 cases, which reflects the fact there are multiple judicial reviews and concessions.
Deputy Carroll MacNeill made the point about the number. I believe 70,000 units were given permission and 13,000 have been completed. SHDs are a minor part of adding to the costs of delivery of houses. It is to do with demand and controlling markets.
Mr. Walsh's statement at his last appearance here in May 2021 was mentioned by a couple of members in which he outlined the safeguards. In his opening statement, he said:
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.
The Department has the Remy Farrell examination, there is the An Bord Pleanála internal review, the Planning Regulator is carrying out an examination, the Standards in Public Office Commission, SIPO, is dealing with complaints, and Dublin City Council has asked for all its applications to be reviewed, although I do not wish to comment any further on that. I recognise things will be challenged, but given the length, breadth and depth of all this, how has An Bord Pleanála got itself into this position?
Does Mr. Walsh accept, as the executive chairperson, that he should have seen the warning signs sooner? We saw them here last year. Some of the members may only have had an opportunity to have a look at the briefing material the evening before the meeting last May, and they would have spotted them and raised some of these issues at the time. I would have raised some of them. Does Mr. Walsh accept that the warning signs should have been seen sooner? It is a long list of examinations, reviews and investigations. Does he accept that?
Mr. Dave Walsh:
There are three different areas. There is strategic infrastructure, strategic housing and normal planning appeals, which are general cases. As the chair of the SID, I assign the cases to board members of strategic infrastructure cases, on a random basis, depending on who has capacity.
Mr. Dave Walsh:
That is one of the issues we are examining in our own terms of reference. We have identified that. With regard to the issue of presenting, a board member is assigned a file and he or she brings it to a meeting of a certain configuration. The more board members there are and the more permutations, the better it is.
Mr. Dave Walsh:
It certainly is outside of the normal expectation of a statistical distribution that would be expected. The matter being reviewed is to find out the reason for that and what needs to be done to better align the inspectorate and its reviews on a matter with how the boards interpret it.
Mr. Walsh is saying he did not cop this. It did not raise a red flag. I asked Mr. Walsh how an Bord Pleanála had got itself into this situation. The average is 10% of the inspectors' cases being overruled or changed by the board. That is fine. Up to 20% would seem grand, but this is 90%. There is an average of 10% and, in certain cases dealing with a certain type of infrastructure and certain individuals making decisions, a situation is reached where it is 90%. That would not just be a red flag. There would be a red light flashing all over the room. No one in the board saw it.
Mr. Dave Walsh:
There are two aspects to this. The first is understanding the context for this issue. More important, from my perspective and that of the organisation, is how we ensure we identify this issue if it arises again. How do we provide the regular format that is not in place at the moment?
If there are controls that are not in place, they should be in place. That is how we can strengthen this.
That would happen. It would be quite normal in an organisation, such as a sporting organisation perhaps doing inquiries, a political organisation, a company or whatever that one would flip them around.
On the number of people who are handed files and the number of people dealing with them, three seems normal. Mr. Walsh outlined that. Mr. Walsh said that in certain cases it can be less than that but for strategic infrastructure, it would always be three.
Mr. Walsh clarified earlier on and if there were two people deciding on several dozen of those, would he find that odd? Why would that happen? Why has Mr. Walsh allowed that to happen? Can he confirm it happened?
I will turn to governance and finances. In 2018, the legal fees were €1.2 million. In 2021, they are €8.4 million. That is exceptional. Much of that relates to the strategic housing developments, which are now history and which, I believe, were an awful imposition altogether and were put together on a false basis that somehow the planning process could not be speeded up at local authority level. Does the board envisage an increase in legal fees as a result of the multiplicity of examinations and investigations I mentioned and the potential outworkings of that? Does Mr. Walsh envisage an increase in legal fees over the next year or two? As Chairman of the Committee of Public Accounts, I am interested in this.
Also, while these are ongoing, Mr. Walsh has to take legal advice. Mr. Walsh has said that An Bord Pleanála does not have an internal legal person and that it must go outside. I am sure the board, if I was sitting in Mr. Walsh's seat, would be looking for legal advice on a daily basis regarding the multiplicity of investigations and examinations.
In relation to that, never mind when An Bord Pleanála gets the judicial reviews which could be a minefield, does Mr. Walsh envisage this escalating the cost of the legal issues in relation to the board and has he factored this in?
Mr. Dave Walsh:
I foresee that obviously, we have relied on our legal advisers to provide specific advice in relation to elements of the review and other aspects of it, and that is a cost. Whether it actually ultimately adds to and increases the overall costs for this year or next year, I cannot say until I see the overall. However, there will be an additional cost over and above the normal legal costs that we would have.
Mr. Dave Walsh:
As far as I understand it, we have not. As you can see from the legal figures, they can go up and down substantially depending on the number of cases we have. In terms of legal advice, just to give you a sense, non-judicial general advice cost the board €57,000 in 2019. In 2020, it came to just under €62,000. In 2021, it was €91,000. That is the scale and level of the costs.
Before a second round of questioning, I must watch it because there are two members who could appear. They could be held up with parliamentary duties or other committee duties. If they appear, I must give them their ten minutes. I propose we proceed in the speaking order, maybe, with four minutes each, and see how we get on. Is that agreed? Agreed. I call Deputy Carthy, who was first.
There has been much talk about the strategic housing developments and the implications they have had. In a previous role, would it be correct to say Mr. Walsh was involved in drafting the legislation underpinning the strategic housing developments?
Mr. Walsh's position today has been that the legal costs that have arisen out of the board's decisions in relation to the State's strategic housing developments were almost beyond the board's control because it was making a decision based on the legislation-----
Okay. We were talking about the issues of the challenges and the areas that have been points of concern. I want to give an example of a case. As this case has concluded, there is no issue. It is in relation to a telecommunications mast in my own constituency that I am aware of in a small village called Glaslough. Monaghan County Council refused planning permission for that. I have the 12-page report, which is available in the public domain, as to the rationale for that. An Bord Pleanála sent its inspector - no doubt an eminently qualified inspector - to adjudicate on that decision when that decision was appealed by the telecommunications company. The inspector produced a detailed 34-page report upholding the decision of Monaghan County Council. Then An Bord Pleanála - I am not sure whether it was one person, two people or three people made this decision - compiled what could be generously described as a four-page report - there are lots of blanks.
I can tell Mr. Walsh, having read both of these others, there is no way that anybody could understand what rationale the board had for overturning that. It cites Acts but does not indicate which aspects of those Acts are responsible. It states in this-----
As I say, this matter has been resolved.
The direction states, "Furthermore, in deciding not to accept the Inspector's recommendation to refuse permission on visual and built heritage ... grounds the Board considered that on balance the location of the site did not affect or injure the character or setting of the Glaslough Architectural Conservation Area" and so on. At a previous meeting with the committee, Mr. Walsh acknowledged that board members will most likely never have set foot in the general area about which they are making a decision. Mr. Walsh has said anyone can write to the board. I am not making a judgment one way or another in respect of the application but could anyone who might have a concern about that decision know there was a potential that the people who made this decision also happened to have been a part of 75% of decisions where the inspector's report was overturned? How would anyone know there may be allegations in respect of the connections of some of those board member with telecommunications companies? There are only two sets of people who have the capacity to do that. One is investigative journalists.
I spoke in respect of potential anomalies with regard to the make up of the board and any connections they might have. There are only two sets of people who have the capacity to learn of those anomalies. One is investigative journalists. They did their job. The other is the Accounting Officer of An Bord Pleanála. I must ask again, in the context of the myriad allegations that have now brought An Bord Pleanála into the turmoil it is in and the disrepute that has been brought on the entire Irish planning system, does Mr. Walsh accept he failed in his job as Accounting Officer? Does he accept he failed not only on this point but potentially on hundreds of cases that could lead to tens of millions in legal costs down the line?
What is available is a report from Monaghan County Council stating why permission should be refused. There is also a 34-page inspector's report as to why permission should be refused. There is then a four-page decision of the board overturning both of those decisions with virtually no rationale included. That is what is publicly available, to be clear.
Mr. Dave Walsh:
The entire file is also publicly available. All of the associated documentation that goes with that, which is not published on the website, is fully available. The suggestion that only investigative journalists could find this information is incorrect. It is publicly available information.
I looked for decisions on the An Bord Pleanála website. I have never seen anything like how scant it is and yet Mr. Walsh says all the information is publicly available. The names of the inspector and the board member are included. There is a description of the case type, which might state "normal planning". There is a bare sentence for everything. There are references to split votes, with an option for "Yes" and "No". If there was a split vote, there is an opportunity to include the relevant ratio. There are other sections that include "Discussion" and "Refusal for oral hearing". There is nothing else. The website does not state why there was a refusal for an oral hearing. I ask Mr. Walsh not to clap himself on the back. He has a body of work to do and he would want to start doing it because as far as I am concerned, there is no trust and confidence in An Bord Pleanála. There is absolutely none. There is nothing transparent about what the board is doing, I am afraid to say.
I have a question for Mr. Walsh. At his most recent appearance before the committee, he conceded there were no such thing as minimum density developments in legislation. Is that correct?
The issue is that there are no minimum densities in the guidelines, the specific planning policy requirements, SPPRs, the legislation or anywhere else. It is contended by the Planning Regulator, however, that there are such minimum densities. I spent 20 minutes on a Zoom call with the Planning Regulator who insisted there were such minimum densities but was unable to point me towards them anywhere.
The Wexford county development plan has been framed and minimum densities have been inserted. We are talking about saving the public and getting value for money for the taxpayer. We have two arms of the State, that is, the two main statutory bodies dealing with planning. One states there are minimum density requirements and the other states there are not. As the Secretary General of the Department, does Mr. Doyle feel an obligation to bring that to somebody's attention in order that we do not have to defend judicial review proceedings and waste the taxpayers' money, given that we know about it?
As a matter of fact, there are no references to minimum densities. They are not there. That is the whole point. They are not there. Several court decisions have stated we need clarity because the guidelines are ambiguous. We do not have that clarity. Does Mr. Walsh know what the minimum densities are?
In other words, there are no minimum densities. It is down to the local county council that is developing the county development plan in each area. It is not a matter for the regulator to tell them what to do. Is that not the case?
Ms Maria Graham:
It means that a local authority doing its development plan has regard to minimum densities. The Office of the Planning Regulator, in looking at the situation, sees whether that "having regard" reflects the national planning framework, the regional strategies and the overall approach of increasing densities to ensure value for money and compact growth. In the context of the planning review, we are looking at ensuring clarity about which guidelines are mandatory and which are discretionary. That goes to the point.
Could Ms Graham come back with the clarification? She is saying there is a legal interpretation. That would be helpful for the committee and the Deputy. In fairness to the Deputy, she has been trying to probe the weight of it. I suppose that is the term I would use.
The court cases changed the phrase from "having regard to" in some respects to that of "consistent with". That is a better and clearer phrase, and it means that it is not really open to interpretation. Has An Bord Pleanála received any protected disclosures in the past three years?
I just wanted to know. In the 2020 accounts, An Bord Pleanála declared that there were no weaknesses in internal controls. Has An Bord Pleanála identified anything in the 2021 accounts in terms of internal weaknesses?
I understand Mr. Walsh wants to await those findings, but it is not open to interpretation that up to 90% of inspectors' reports have been overturned. That is a fact. With regard to the non-time-limited number of people on the board, it appears-----
The fact that this is not time-limited would appear to be a weakness. Would Mr. Walsh accept that the statement that there were no weaknesses was not an accurate picture even before any of the reviews?
It has things it is required to do. They are not tick-box exercises. What I am really surprised about is the lack of rigour and the lack of systems when it comes to making sure they are enforced. I am really taken aback by that.
Mr. Walsh is the chair of An Bord Pleanála. The buck stops with him in terms of making sure these things are in place. Some of it is open to individuals having the integrity to declare while other things were not spotted. This screams of systems failure.
Mr. Dave Walsh:
I appreciate we had the discussion earlier and the Deputy was not happy but the system is based on personal responsibility and integrity in the first instance. When an organisation of the scale of the board, which is not a large organisation but deals with a significant volume of cases and large complex cases, there must be a certain level of trust within the system, but the system must then back it up in asking what spot checks and controls are in place. Where we can identify weaknesses in those, and we will not be shy in taking action on foot of any reviews by us or through the Office of the Planning Regulator, OPR, we can strengthen and provide that level of confidence.
Mr. Dave Walsh:
No, it is not because the OPR has a statutory role to oversee the board. The OPR announced in March or early April that it was undertaking a review of the board's systems and procedures as part of its second wave of local authority reviews. The OPR has done five or six of them. It has scheduled the review for the latter half of next year. That would have looked at the board's systems and procedures and given us a review of best practice. Because of what has happened, it has front-loaded some elements of that relating to certain aspects. I expect that this review will probably kick off some time in the next couple of months.
That will all be welcome. I have a few questions. If the committee agrees, we will let this run 15 minutes over because we were a couple of minutes late starting. Regarding governance and oversight, can Mr. Walsh provide absolute clarity about what reviews of disclosures the board undertakes led by its members and staff?
This is despite the fact that they indicated earlier what has been outlined to Mr. Walsh about people's declarations being significantly or completely different from what they were in the previous year. Does that not jump out?
Mr. Dave Walsh:
That is sections 147 and 148. The legislative requirements are there. In the context of the code of conduct, where a case arises at a particular board meeting, that is when the initiative kicks in around raising the matter and either absenting oneself from the meeting or seeking a ruling as to whether a conflict does exist from the chairperson.
Why were the controls not strong enough to detect where there might be conflicts of interest or where there was a weakness? Mr Walsh has said to me that nothing was seen, nothing unusual jumped out. What is the big failure there? Who is failing? Is it the board? Is it Mr. Walsh? Is it the secretary of the board? Where is the failure?
Mr. Dave Walsh:
If matters are flagged or identified as being potentially - or not explained in the context, again, you see a piece of paper as opposed to the context that might possibly be involved in it - if there are no actions to be taken by the board, then the responsibility rests with the individual to ensure that they are compliant and if they are not it is potentially an offence.
Pending the outcome of the various examinations, reviews and inquiries, is Mr. Walsh, as chairperson taking action now while we are waiting for all of that in order to ensure that where unusual matters-----
If Mr. Walsh finds that they are not, perhaps he might inform us. If a board member did not declare a conflict of interest, particularly if they are dealing with a planning decision of the board, can it be overturned afterwards?
We now know, I do not think it is disputed, that in the context of telecommunications mast decisions, there is a very clear pattern in terms of the membership. Who assigned those members to those boards?
Mr. Dave Walsh:
Not every case is approached to say where should it go. Generally, it is a discussion that may take place in respect of the volume of cases that board members might have and their capacity to deliver in respect of them. The actual assignment of individual cases is done by the administrative team.
Going back to Mr. Walsh's role in all of this, I asked whether he had read the transcript. I would have thought that, as a matter of course, if I was up before the Committee of Public Accounts and I made a declaration on several occasions in respect of an issue - in this instance that cases are assigned on a randomised basis - the first thing I would have done when I went back to the office would be to ask somebody to make sure that was actually the case. Mr. Walsh did not do that. Is that not his evidence? He has not at any point up until this current review carried out an assessment as to whether the assertions he is making to the Committee of Public Accounts are factual.
Mr. Dave Walsh:
Regarding the process that the board has, the legislation gives the responsibility to the chair or deputy chair to allocate, but it is assigned to administrative teams to manage that process. In the context of the Deputy's question as to whether this has been checked, verified or otherwise, I had no reason to question the procedures that are in place. Until such time as somebody wrote in or highlighted the issue----
You did. In one instance, there was a situation, as the Chairman correctly outlined, where inspectors' reports were increasingly being disallowed or overturned by a board in respect of a particular type of development at a huge scale. This was unprecedented, as far as I can make, out in terms of the board previously having made decisions. Mr. Walsh had a couple of reasons. He was making the assertion to the Committee of Public Accounts very strongly. All of a sudden, his inspectors' reports were being rejected on a massive scale. There were communities the length and breadth of the country stating that the decisions were unfair and were not based on proper, adequate rationale. There was all of the rationale to carry out even a paper assessment as to whether what he was asserting to the Committee of Public Accounts was true and Mr. Walsh did not do that. Is that not correct?
Mr. Dave Walsh:
The case minute previously was under our old Lex system. It was one page that summarised who was there, with a conflict-of-interests box ticked or not ticked and the board's decision in respect of a particular case. That has been transferred into the Plean-IT system. It was called a case minute,. More correctly, it should be a board meeting record that shows who was there-----
No. I am referring to when it is all said and done. The next thing is that something happens and the other person who did not take the minutes might say "That did not happen". What happens then? What does the board do then?
The point is that Mr. Walsh is missing the point. The system does not work. There is no safeguard. If one was doing a cost-benefit analysis on a two-member quorum, the risk is outrageous. It is outrageous and yet predominantly we have decisions being made by two-member quorums across the board. An Bord Pleanála is exposing-----
The Deputy is okay, she was on a roll.
I will return to Plean-IT. Mr. Walsh said earlier that it was €5.4 million of cost that has been running ongoing since 2014, yet it is still not complete. Is that correct?
That is fine. That explains the breakdown of it. I have another question to ask in my remaining minute. With all of the changes between the strategic housing developments, SHDs, that were brought in and the strategic infrastructure developments, SIDs, there was a requirement - of which I was critical at the time - that An Bord Pleanála was not equipped IT-wise for those changes. The interface between the public and An Bord Pleanála lacked a lot of improvement. It is good to see the changes on the website, which I have witnessed and which are important. The cost, however, is quite eye watering from my perspective. Yes, there is some consultancy in that but I ask that An Bord Pleanála would be conscious of that going into the next year.
I would like a breakdown of the oral hearings. Earlier I asked about the inspectors' reports and how often these are overturned and overlooked. It seems to me that it is a shot in the dark whether or not an application goes to an oral hearing. What are the criteria for the board making a decision about an oral hearing? Is the quorum for that decision equally two or three members? I believe this would have ramifications if an oral hearing is granted.
Mr. Dave Walsh:
If an appellant seeks a request for an oral hearing an inspector will examine the file and make a recommendation to the board as to whether she or he considers there is sufficient information on the file to enable her or him to make an assessment. Then that goes to the board for a decision. In the vast majority of cases the inspector's recommendation is carried through.
On the Deputy's last question, for oral planning appeals an oral hearing request can be considered by a two-person meeting. As I said earlier to the Cathaoirleach, if there are any cases that relate to strategic infrastructure that require an environmental impact assessment, they cannot be dealt with by a two-person quorum.
Mr. Dave Walsh:
I can get a copy of those for the Deputy. Obviously, there are oral hearings that, while not considered mandatory, are considered part of the process in relation to strategic infrastructure. They can still be dispensed with. There is an option to do that under SHD and we have held a few oral hearings. With regard to other elements, I can come back to the Deputy with that.
Mr. Dave Walsh:
A file is returned to the inspector and the inspector will then continue the assessment. An oral hearing is assessed on the basis of all the information and all of the replies, including the points from the local authority and all parties, and if the inspector has enough information before him or her to be able to make a valid assessment.
Mr. Walsh has made it clear that for strategic infrastructure development and for strategic housing development there is a requirement for a three-member board. In Mr. Walsh's time as the chairman of An Bord Pleanála have there been any instances where the number of people making those decisions has been fewer than three?
I have a question for the Department before we wrap up. Yesterday, the Planning and Development, Maritime and Valuation (Amendment) Bill 2022 went through Dáil Éireann. An amendment was proposed to be put in by the Government to allow An Bord Pleanála to change a decision after it was challenged by a judicial review. Is that correct? Was this the intention of the amendment? I was not following it exactly myself because I was tied up with work around this committee and various other things. Will Ms Graham clarify if this is correct?
Ms Maria Graham:
There were a number of amendments under consideration. I understand there are two amendments to the judicial review process being progressed through the Dáil at the moment. One is leave that the court would decide that all administrative processes have been complete, so that leave to appeal would depend on other factors too. For example, some cases for judicial review before the board may have gone for judicial review during the course, or maybe a couple of times during the course. This provision would be as envisaged in the Aarhus Convention, that the court is used after the local authority and the other appeals' routes have been exhausted.
It is an elastic term to me.
That concludes the questions. I want to thank the witnesses for joining us today, and the staff of the board and of the Department - Mr. Doyle and Ms Graham - for preparing for today's meeting. I thank the officials of An Bord Pleanála. I want to thank the Comptroller and Auditor General, Mr. Seamus McCarthy, Ms Henry and their staff for the work that they have done.
Is it agreed to request the clerk to follow up information and carry out any agreed actions that arise from meeting? Agreed.
Is it also agreed that we note and publish the opening statements and briefs that have been provided for today's meeting? Agreed.
There is some follow-up information to be forwarded to the committee.
The meeting is suspended and we will resume in private session at 1.30 p.m. before moving into public session. There are a few issues to deal with. We will do that at 1.30 p.m. We will then move straight into public session.