Dick Roche (Wicklow, Fianna Fail)

I tend not to disagree with the Senator on the question of absolute power. This phrase was introduced for good reason in section 16 of the 1976 Act that established An Bord Pleanála. It was introduced to prohibit interference with the board and to prevent it from being stymied in its right to make a decision on an oral hearing.

The phrase jumps off the page and causes difficulties for me as well as for the Senator. However the arguments for continuing to use it, which practice commenced in the 1976 Act and was continued in the 2000 Act, are overwhelming. The Senator proposes the removal of absolute discretion being granted to the board on a number of functions, most notably on oral hearings but also to require further information from the applicant or other person, request the revision of the application or hold meetings with the applicant or other person where the board feels that it would be helpful in determining an application. To leave the board open to vexatious challenges, as the removal of the words would do so, would damage the planning process.

On the issue of oral hearings, I strongly believe that the board must be given absolute discretion to decide when to hold an oral hearing and when not to do so. It would unnecessarily tie the board to leave it open to challenge on each and every occasion. This would run directly counter to the purpose of the Bill, which is to try to create a system that works more efficiently than the present system while also balancing the powers. It would allow the board to re-balance the situation in which increasing numbers of oral hearings are being held on relatively minor CPO cases.

Let me give an example of this. If the words were removed from the Bill, the board could be challenged time and again on whether there should be an oral hearing on a CPO case. The only people who would gain from this would be legal eagles. One point is certain, it would not serve the public good. While the phrase "absolute discretion" jars with me, as it does with the Senator, the public interest is the best argument for keeping it in the Bill. If every minor CPO could be subject to legal challenge where it is decided that the board does not want to hold an oral hearing, that would not be in the public interest. The board must have the discretion to use its judgment with regard to the holding of oral hearings. The phrase "absolute discretion" simply underlines the fact and ensures that the board cannot be challenged where it makes a call on its procedures.

The phrase is used extensively in the 2000 Act but my understanding is that it first appeared in section 16 of the 1976 Act. It is important not to risk any confusion by using different language in different sections of the Bill to express the same idea. I ask the Senator not to press the amendment. If one considers the arguments which were put forward, obnoxious though the words "absolute discretion" used in conjunction tend to be, there are cogent reasons we should keep and continue to use the phrase in this case.