Cian O'Callaghan (Dublin Bay North, Social Democrats) | Oireachtas source

At the outset, with reference to the 2016 report that was ordered by the then Minister, Deputy Kelly, I wish to state that some of the recommendations in that report, if implemented, would be a disaster. If that is not clear to people after recent events, I do not know when it will be clear. One of those recommendations was that some decisions would be made, in some cases, by a sole or one board member. For any party or Deputy to think that those sort of recommendations should be implemented is highly questionable.

I agree with previous comments that we should have a full response from the Minister on which recommendations have been implemented, why the other ones have not and which ones are still under consideration. I would certainly not fully endorse that report and all of the recommendations in it. I also agree with the need to abolish the so-called mandatory ministerial guidelines and to restore local democratic development plans, which is very important. I also am concerned, arising from the Minister’s speech, that there are multiple allegations in regard to multiple members of the board and about the manner in which these are being investigated. I take it from the Minister’s speech that they are not being independently investigated and are only subject to an internal review by An Bord Pleanála and that the investigation by the OPR is more general in its processes. It is acceptable that those multiple allegations about multiple board members should only be subject to some sort of internal review. These should be robustly and independently investigated.

The reason we are having this debate now is because of excellent investigative journalism done by The Ditchwebsite and also followed up by the Irish Examiner. We should not have to rely on the media to be doing that if State bodies had been doing their job properly. It is entirely legitimate to ask the question as to why the Office of the Planning Regulator did not act on a very detailed complaint it was given on 28 November 2021 by retired The Irish Timesjournalist Frank McDonald. He submitted an 18-page complaint to the Office of the Planning Regulator detailing many of the issues that have subsequently emerged in the media. We need to know from the OPR why that complaint was not fully investigated and what steps are in place to ensure that in future, such complaints are treated seriously. That was a detailed complaint from a credible source.

We need to know from the Minister why there is not an independent investigation going on in regard to the other allegations in respect of the other board members. I will not go into the details of these; they have been published extensively in the media. There are allegations about conflicts of interest in terms of board members making decisions that affect them directly in their local area, conflicts of interests on their personal connections, a great number of decisions being made in one meeting and decisions being made by two members of the board when the legislation is clear that in respect of strategic housing development, SHD, applications, the minimum number of board members required for such decisions is three. Indeed, there are allegations about a high level of refusals and of overturning of inspectors’ reports. We need to have robust independent investigation into that, as well as answers given.

We need to hear from the chair of the board as to why it did not notice that anything wrong was going on or, if it had noticed that something wrong was going on, why it did not act upon it and why there were not sufficient internal checks and controls. How was it that the legislation could be breached by two members making decisions and did the chair knew of that or not? We also need to hear about the practice of random allocation of files and why that was abandoned by the board. That was a key safeguard. We need to know when that decision was made, by whom and on what basis it was made. We need to know why a large number of decisions, especially on strategic housing developments, were concentrated among two board members, in particular. An Bord Pleanála spent €8.2 million defending itself against legal challenges when it came to strategic housing development rulings. That alone should have raised significant alarm bells internally for the board. Why did it not?

In terms of the issue of inspectors being put under pressure to amend their reports, we need to have the answers on that and we need to ask were any inspectors assigned to different areas because some board members or members of the senior management may not have agreed with reports. Has that question been asked? Is the Minister asking that question and looking for answers? Will there be any independent engagement with inspectors to get their views and input on this? As said previously, the practice of randomly allocating files to inspectors needs to be brought in so we do not have a situation where certain inspectors are being allocated certain files and other inspectors are not, where this could be based on previous reports fitting or not fitting with the wishes of senior management or the board. All of that needs to be very thoroughly and robustly investigated by the Minister if we want to restore confidence in the role of An Bord Pleanála.

We must also have an analysis of strategic housing development decisions by the board to see whether there are any patterns emerging in terms of who was making decisions on particular applicants and developers, and whether there is any pattern as to applicants or developers getting their permissions granted very consistently by the same board members. That presumably would be quite an easy analysis to conduct. It should be conducted and the findings of that should be shared with us as a matter of urgency.

These allegations have been in the public domain since April and, several months on, some of these basic questions have still not been answered. I am not sure if some of these basic questions are even being asked by the Minister or the Government. Of course, if we do not ask these questions and do not look for answers, we are not going to find anything.

On the question of a new appointments process for the board, it is very important that board members are appointed and that the board has independence, and that any changes in the appointments process do not further undermine the independence of the board. There is considerable concern that any changes could, in fact, mean that rather than the board being more independent, for example, of the Department of Housing, Local Government and Heritage, if it is a process where that Department is heavily involved and effectively has a veto through the Public Appointments Service, that could further undermine the independence of the board, which would be highly problematic.

It is very important that the planning review that the Government is undertaking is not rushed through. We saw before the end of the last Dáil several amendments and changes to planning legislation rushed through, so the Government’s form on this is incredibly poor. If there is anything the Government should learn from all of this in terms of what has gone wrong in An Bord Pleanála, it is in regard to the strategic housing development legislation that was brought in back in 2016. The research conducted independently by Dr. Mick Lennon of UCD and Dr. Richard Waldron of Queens University, Belfast, where they interviewed people involved in that legislation, including lobbyists for Property Industry Ireland, is very clear. A lobbyist from Property Industry Ireland states that the proposals were given to the then Minister with responsibility for housing, Deputy Simon Coveney, and they were implemented lock, stock and barrel. We all know at this point that that legislation, rather than making delivery of housing faster, has led to delays, more litigation and more judicial reviews. It was a disastrous approach. I urge the Minister and the Government, in terms of any changes in planning legislation, not to rush it through and to look for proper scrutiny so we can ensure further mistakes are not made in this area. We must avoid what Dr. Lorcan Sirr described in terms of the strategic housing development legislation as “regulatory capture”, where the Government and the regulators were, in fact, captured by those they were seeking to regulate. That should not be the basis for forming planning legislation.

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