Eoin Ó Broin (Dublin Mid West, Sinn Fein) | Oireachtas source

An Bord Pleanála is in the midst of a deep crisis. That crisis has, in part, been created by an avalanche of concerning revelations since April of this year. The crisis has also been caused by Government policy, in particular, a number of very controversial mandatory ministerial guidelines introduced by a previous housing Minister and a failure of successive Governments to implement a number of key recommendations of the 2016 report into the operations of the board. The combination of these three factors has led to a dramatic collapse in confidence among the public in the operations of the board. It is not just a collapse of public confidence. A number of large local authorities, including Cork City Council and my own South Dublin County Council, have voted on motions of no confidence in the operations of the board in recent months. There is also a widespread view across the planning community that the board is no longer performing its functions as it once did. All of that means that there is an absolute urgency for the Minister to act, and act speedily, to restore public confidence, as well as the confidence of the elected members and planning professionals. As he endeavours to do that, if he does the right thing, he will have the active support of our party and, I believe, many in opposition.

With respect to the avalanche of revelations, I want to pay tribute, in particular, to journalists of an online publication called The Ditch. They have produced 29 separate news reports since April, outlining very concerning allegations with respect to the operations and decision-making of the board. The Minister has spoken both to the allegations and his response to that. These revelations also covered, in particular, in the Irish Examiner, not only relate to the former deputy chairman of the board, Paul Hyde. Unfortunately, they also relate to seven members of the board, including the current chair, David Walsh; the director, Rachel Kenny; and members, Michelle Fagan, Terry Prendergast, Terry O'Niadh and Chris McGarry. I am not going to go into the individual allegations and revelations in relation to individual members for the same reasons as the Minister outlined. However, it is important to give people a sense of the areas in which concerns have been raised.

There does seem to be a pattern across individuals of not declaring very significant conflicts of interest when taking decisions on both small and large planning applications and appeals. There seems to be a widespread practice of decisions being made by board members where those board members live in what is called the immediate neighbourhood - something which is not permitted under the board's own procedures. There seems to be a pattern of interference with, and the amending of, inspectors' reports to suit decisions that are then subsequently being made, and as the Minister himself alluded to, decisions being made by panels of two, which is explicitly prohibited under the legislation and the procedures. As the Minister said, this avalanche of revelations has led to three separate inquiries, one resignation, possible criminal charges and to the board's reputation being in tatters.

One of the questions that has to be asked, alongside those around the allegations against individual members, is what the chair and the director were doing while these alleged breaches were happening over and over again. How many decisions have potentially been compromised by decisions that are in breach of protocols, procedures or indeed, the underpinning legislation of the board? What has been done to ensure that these kinds of breaches of procedures are brought to an end?

As I said, it is not just the individual actions of individual board members and the failure of the corporate governance of the board that has caused the crisis in An Bord Pleanála. When former Eoghan Murphy, as Minister for Housing, Planning and Local Government, introduced, in particular, two sets of mandatory ministerial guidelines, namely, those on the design standards for apartments and the removal of the caps on building heights, it created a perpetual conflict in planning law between central government policy and city and county development plans across a range of local authorities. When you get that kind of conflict between two sets of planning lawmakers, things end up going to the courts. In fact, as a direct result of that conflict, we saw a dramatic increase in the number of judicial reviews being taken against strategic housing developments, some very significantly taken by Dublin City Council in defence - rightly, in my view - of the democratic decision-making of its councillors in terms of strategic development zones and the city development plan. Worse still, the board, time and again, lost those judicial reviews in the courts at enormous cost to the taxpayer, and yet individual board members were allowed to continue to make subsequent decisions on the same flawed legal basis. The figures are startling. In 2019, before this avalanche of judicial reviews of legally suspect decisions by the board arrived, the legal costs of the board were around €3.6 million. From 2020 they shot up to €8.4 million, and in 2021 they were €7.7 million. The outworking of subsequent judicial reviews as a result of the conflict between decisions made by the previous Government, upheld by this Government, and the city and county development plans is that the legal costs will continue at those exceptionally high rates in the time ahead. The big question is this: why were legally questionable decisions allowed to be made over and over again? What mechanisms were put in place to try to address this? What has been done since to ensure the number of legally questionable decisions by the board is dramatically reduced, to in turn reduce its exposure to judicial review?

Finally, with respect to the 2016 report, I do not agree with all of the recommendations of the report, and the Government is completely entitled to agree, disagree or want to amend those. However, there has been a slowness, particularly in the previous two Governments to either implement or explain the failure to implement those aspects of that review that are the responsibility of the Government and the Department. I look forward to the Minister's legislation because clearly it is going to deal with some of those outstanding matters. As I said at the start, the most important question is what the Minister is going to do. In fairness to the Minister, he has outlined a series of actions as he moves forward. In response, I would say that first of all, we need to have the prompt publication of each of the individual review reports as soon as they are available.

I appreciate the advice of the Attorney General with respect to the Garda investigation, but as soon as that report can be published, it should be. So too should the internal review of the board and the report of the Office of the Planning Regulator. I welcome that the Minister has just said he is now going to get monthly reports on the improvement of the governance operations of the board. They should be shared at a minimum with the Oireachtas Committee on Housing, Local Government and Heritage and, if possible, published so we can keep track of that as well.

More important than anything else, what is clear is we need a fresh start at An Bord Pleanála. This can only be achieved with a significant change of board membership. Ultimately, responsibility starts at the top. The Minister must be bold and act in the interests of the planning system overall. I note the inclusion of the An Bord Pleanála appointments Bill in the legislative programme that was published yesterday and look forward to sight of a general scheme. What I would say to the Minister at this stage, and I made the same point to the committee, is that we need a hybrid system. There is merit in having nominated bodies so long as those nominated bodies actually exist and are functioning and represent important interests. That list needs to be updated and expanded. There is an argument to say the environmental sector needs to be involved, possibly organisations like the Irish Environmental Network, given the increasing importance of EU environmental law in our planning system. Also, in recognition of the fact the board was originally meant to be a jury of our peers rather than a body of professional planners, there is an argument for expanding nominating bodies to ensure the public, the community and the citizen's voice are also represented. Organisations like the Dublin Democratic Planning Alliance, for example, would be a case in point. What we need is a public competition. I am calling it a kind of public appointments commission plus, where we use the Public Appointments Commission for open competition, interview and recommendation but we might add to that to ensure the necessary level of skills is ultimately on the board. It has to combine expertise in planning, place-making and environmental law with that key idea of the board as it was originally designed in the 1970s as a jury of one's peers.

I am glad to hear the Minister is indicating the Bill will do more than provide for appointments. The Bill needs to go further than just tackling that issue of the appointments process. One of the small things that needs to change is the name of the board. When people hear the phrase An Bord Pleanála, they think of a board of directors, people who meet six times a year in a part-time capacity. This is a planning authority. This is a body in respect of which the State pays individuals significant sums of money to be planning officials. To avoid confusion and in line with that fresh start, actually renaming it as what it is, a planning authority, and recognising that the members of that planning authority are effectively full-time planning officials would be a small, symbolic but useful step in the right direction. There not only needs to be clarity in terms of the requirements of members and staff of the board, but also there needs to be sanctions of an appropriate nature where people fail to declare interests or fail to adhere to proper procedures, ultimately such that people can be stripped of their membership of the board for multiple failures. We need to strengthen those existing procedures. We need to get rid of subpanels. There is no justification for them and they are contrary to the original legislative requirements of the board. We need to have proper monitoring and publication of information, including the declaration of members' interests, rather than just having them available for inspection, to increase transparency. I simply do not understand the idea of divisions within the inspectorate. It is a terribly bad practice. I do not believe it is in the spirit of the original legislation either. Just as files should be allocated on a random basis, so indeed the requirement for the work of the inspectorate.

There should be no role for any board member to request or seek to amend the inspectors' reports. Board members can disagree with those inspectors' reports. That is published in a transparent way in the final decision of the board. Inspectors' reports should reflect what those inspectors wanted them to reflect rather than being in any way pressurized or required to consider amending them. Ultimately, we need to ensure there are measures to mitigate groupthink. We need diversity, dissent and critical thinking in all operations of the board. We need to ensure there is a distancing of the decision-making of the board from the interests, whether individual or collective, of industry or other commercial views. I acknowledge the Minister had made provision for additional staffing, although there is going to need to be more, particularly in respect of the maritime requirements. The board must have adequate resources and clear statutory timelines for all forms of decision-making, not just on large-scale residential developments, which I welcomed, but for all others.

Beyond An Bord Pleanála, we have to deal with the legacy of bad Government planning policy. We need to scrap those mandatory ministerial guidelines. The very phrase "mandatory ministerial guidelines" is Orwellian in its conception, and therefore the inferior design standards for apartments, the removal of caps on building heights need to go. We need to restore democratic decision-making to our communities and to the democratic decision-making process of the development plan, strategic development zones and, ultimately, the urban development zones, which the Minister has included in his plan. We need to accelerate the use of place-making as the Minister has outlined.

We also need to establish, as a matter of urgency in the next 12 months, a dedicated, fully resourced planning and environmental court. The Minister should be warned. Restricting access to judicial remedy will be done at his peril. The problem is not that there is too much litigation. The problem is those conflicts I mentioned earlier and that, where legal access or redress is sought, the judicial process is too long. The best way to deal with that is a dedicated court with the expertise and resources needed to expedite judicial reviews as quickly as possible. Crucially, we need to have participative planning at as early a stage as possible in our process, and statutory timelines for all aspects of the planning process and the court, as I said.

The Minister has a unique opportunity to address these issues. He has to act and act now to restore public confidence and the confidence of the wider planning community in An Bord Pleanála and to undo the damage of previous governments which, to date, the current Government has continued to support. If he does all of that, he will have our active support as participants in this reform agenda. Now is the time for a fresh start in the operations of An Bord Pleanála to ensure the mistakes of the past are not repeated in the present or into the future.

See this speech in context