COMMITTEE of PUBLIC ACCOUNTS debate -
Tuesday, 11 Dec 2001

Vol. 3 No. 28

An Bord Pleanála - Financial Statements 1994-2000.

Mr. J. O'Connor (Chairman, An Bord Pleanála) called and examined.

Chairman

We are dealing with the financial statements of An Bord Pleanála, 1994-2000, inclusive. While members enjoy absolute privilege, they should be apprised of the following. Notwithstanding the privilege provided for in legislation, I remind them of the long-standing parliamentary practice to the effect 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. They are also reminded of the provisions of Standing Order 149 that the committee shall also refrain from inquiring into the merits of a policy or policies of the Government or a Minister of the Government or the merits of the objectives of such policy or policies.

I ask Mr. O'Connor to introduce his officials.

Mr. O’Connor

I am accompanied by Brian Hunt, deputy chairperson of the board; Paul Mullally, chief officer of the board and Kevin Carleton, an administrative officer.

Chairman

I ask Mr. Smith of An Taisce to introduce its representatives.

Mr. Michael Smith

I am chairman of An Taisce. I am accompanied by Ian Lumley who is heritage officer for An Taisce.

Chairman

John Laffan from the planning section of the Department of the Environment and Local Government and Stephen O'Neill of the Department of Finance are also present. I call on the Comptroller and Auditor General.

Mr. Purcell

I have very little to say. Although there are seven years of accounts from An Bord Pleanála before the committee today, in that time I have not had occasion to give a critical report on its activities as a result of my financial audit for the years 1994 to 2000. In each year, I was able to give the normal standard clear audit report. Naturally, there were matters arising during that time which were dealt with by way of management letters but these were not of a nature or materiality that would warrant a public accountability.

For the information of the committee, for the last year or so, my office has been doing some work, on and off because of the resource difficulties in my office, compiling data with a view to preparing a report on how well the appeals system is managed, the factors impacting on the effectiveness of the appeals system and the extent to which its effectiveness is evaluated. I expect the resultant report will be finalised early in the new year and, in due course, will come before the committee.

Chairman

Does the chairman of the board wish to make some amendments to the report he sent us?

Mr. O’Connor

No, Chairman. I wondered whether you want to take it as read or whether you want me to go through the main points.

Chairman

There is no need to go through it. The purpose of the opening statements is that members have a chance to consider it beforehand so we can move on to questions and answers. Do you wish to make some amendments to the report?

Mr. O’Connor

No.

Deputy Ardagh

Why do we have seven years of accounts? Is it that you have not been here for seven years?

Mr. O’Connor

I think I may be the first chairman of the board to attend, so I am honoured.

Deputy Ardagh

You are very welcome. I am sure there will be lots of questions. What is the situation in regard to the length of time it takes for a case to be determined?

Mr. O’Connor

We have a statutory obligation to determine appeals as quickly as possible. We have a specific statutory objective to determine appeals within a four month period. There has been a relentless increase in the intake of appeals since 1994. In 2000, the intake of appeals was up 125% on what it was in 1994. While we have increased output very significantly as well, unfortunately, a backlog has built up in that we have not been able to keep output fully in line with the intake of appeals. The result is that a backlog has built up over the past three years or so. In 1994-5, the board was achieving 98% to 99% of its statutory four month target. As I said, this has been slipping since then with the result that, in 2000, it was down to 47%. In 1999-2000, the board was only achieving 47% of its statutory target. The average period of time taken to deal with an appeal in the period 1999-2000 was 21 weeks, which the board does not regard as satisfactory. The board is quite concerned about the delays in discharging appeals. We have taken a number of special measures to deal with this. If the committee wishes, I can go into them.

Deputy Ardagh

Will you tell us how you are dealing with this situation?

Mr. O’Connor

A number of measures have been taken. We have improved the management structures in the board significantly. We are in the process of increasing the membership of the board from ten members to 12. There will be 12 members in place from 1 January next. We have engaged 49 additional experienced planners on a fee per case basis - in other words, outside the board's complement of permanent staff. Most of these would have come from the UK which was necessary because, as many people know, there has been a shortage of trained planners to cope with the increase in development pressures in recent years. Most of the 49 additional planners are employed by us on a fee per case basis. They deal with the smaller type of appeal.

In addition, we have employed seven planning consultancy firms which include 17 professionals planners - most of which are UK-based - to do the reports on the larger cases. We would pay a larger fee to them. They were recruited on a competitive tender basis. We have also extended our recruitment drive overseas. For example, we have taken on three planners from South Africa in the past few months. We are steadily getting our staff levels up to our authorised numbers. As I said, one of the exceptional measures, paying a fee per case, is proving effective. It has taken quite a while, between negotiations with staff interests, advertising, training and so forth, to get all these measures in place. In the past three months they are showing very significant improvements. For example, in the past two months the volume of cases being decided by the board is up 20% on last year and the number of inspectors' reports is up 30% on last year. Again with the additional board members to be put in place from 1 January, we can be confident that the board's performance will improve very significantly next year. AgainI would be hoping that we are over the worstof it.

Chairman

Is it acceptable for the briefing note to be circulated to members of the press?

Mr. O’Connor

I have already sent it to the Clerk to the Committee.

Chairman

Is it acceptable for it to be circulated to the press?

Mr. O’Connor

Yes, certainly.

Deputy Ardagh

How does Mr. O'Connor ensure that there is uniformity in the way decisions are taken and reports written by all of the planning officers and, as far as the final decision is concerned, by the board itself?

Mr. O’Connor

It is an ongoing issue. You have to work at it all the time. I suppose you can never ensure that everything will be consistent. Sometimes planning can be quite a subjective business. They are all trained professionals - I am talking, first of all, about the planning staff - and they have professional standards to adhere to. There are matters to which they must have regard. There are laid down certain matters of planning law, for example. They must have regard to the development plan, national policies and these sort of things. Therefore, there are certain anchors. I would not deny it is possible you still could get two planners looking at the same case and coming up with two different recommendations. It should and certainly would only happen in a minority of cases, but there would be some cases which are a close call and in those cases one will get the possibility of different recommendations.

The board, of course, will have the recommendation from the planner but the board takes the decision. There are ten members on the board at present. The board works on a quorum system, whereby each decision must be decided by at least three members of the board. The policy is that most cases are dealt with on the quorum basis but big cases are referred to a meeting of the full board, where all the different balances and checks of the board - the board members' different skills, backgrounds, etc. - are brought to bear. Hopefully, at the end of the day you will get a reasonable balance and a reasonable degree of consistency.

Deputy Ardagh

Does Mr. O'Connor have a statement of planning practise or of operational practise to be adopted by the planners or is he building up one in order that there is uniformity over the 4,000 or 5,000 cases?

Mr. O’Connor

Yes. There is a structure. All planning reports must be written in accordance with a structure laid down on the basis of the board's experience over the years. There is a basic structure to reports and you will find that if you read the reports.

Deputy Ardagh

How comprehensive is that? Is it evolving all the time——

Mr. O’Connor

It is, yes.

Deputy Ardagh

——and becoming more effective?

Mr. O’Connor

It must evolve anyway because the law is evolving. For example, the new Planning and Development Act which is in the process of being brought in at present will change quite significantly how the board does some of its business in relation to even its existing functions. It has to change. Government policy is changing. There are planning guidelines coming out on a whole range of issues and these must all be addressed automatically in a report where they are relevant.

Deputy Ardagh

Is there within the board a team which builds up all of these guidelines and the practice——

Mr. O’Connor

There is, yes.

Deputy Ardagh

——in order that it can then be given to each of the planners saying, "This is the way that the board will operate. These are the items that must be taken into consideration."? Is that done in a formal way in order that there is uniformity in the way decisions are arrived at?

Mr. O’Connor

There is a structure within the inspectorate. We have a training programme, etc. We probably would like to do more training but there is a certain programme of key inspectors keeping up to date with developments in the planning field because it is an evolving process.

Deputy Ardagh

Can Mr. O'Connor explain exactly how it is done to ensure that all of the planners are kept up with the continuing professional developments and training in that regard? What sort of time is spent on that?

Mr. O’Connor

There are training courses. You would then have people within the board who would take specialisms in certain areas, gain the knowledge and disseminate it within the board. There is a management structure and we have actually strengthened that structure considerably this year. There is an ongoing process. We have a planning officer and in fact three deputy planning officers - it is quite an innovation - to strengthen management in the inspectorate to make sure that they are all delivering a high standard of performance. As the Deputy stated, part of that would have to do with consistency also.

Deputy Ardagh

How do the planners come together?

Mr. O’Connor

They are all in-house and they are constantly meeting. It is a reasonably small organisation. They are not dispersed throughout the country. Therefore there is a good deal of contact and a fair deal of attention is paid by the management in the inspectorate to making sure people are up to speed and producing stuff in accordance with what is required by the board, etc.

Deputy Ardagh

Are there formal seminars?

Mr. O’Connor

Yes.

Deputy Ardagh

How often are they held?

Mr. O’Connor

They are held fortnightly.

Deputy Ardagh

Exactly how many people are involved and how is it done?

Mr. O’Connor

The meetings of the inspectorate are in-house.

Deputy Ardagh

How many of the inspectorate attend these meetings?

Mr. O’Connor

They all attend. There would be exceptions where people must be out but generally they would all be there.

Deputy Ardagh

What sort of paperwork would be handed to them? What sort of things would they be discussing and to what extent would they be discussing these matters?

Mr. O’Connor

I think they would discuss the arrears situation in the board, the work output, any new developments taking place which are relevant to their work, the standards of reports, feedback from the board on the reports on their adequacy, standards, etc. All of these general areas would be discussed at these regular meetings. Then they would also go to seminars. Often we will send a number of inspectors to a seminar and bring back the knowledge.

Deputy Ardagh

Is there a rigorous handbook of standards? Is there a folder from which one can take pages and which one can update and upgrade - a type of bible - within An Bord Pleanála?

Mr. O’Connor

I am not aware of a Bible of that nature. There is a handbook of basic stuff, the basic working procedures, etc., but there is a great deal of documentation within the board on all aspects of planning to which they all have access.

Deputy Ardagh

From what Mr. O'Connor is saying the entire training and development process appears to be a little haphazard.

Mr. O’Connor

I am sure it could be improved. I think there is scope for improving in training and development. The trouble is that when there is pressure on a day-to-day basis to deliver a case and we are in arrears, etc., it is perhaps difficult to put as much time as you would like aside for training and development. You might say there is a payback at the end of the day but nevertheless it is difficult to put as much resources into training and development as one would like in a situation where one's back is to the wall in terms of arrears and delivering timeliness on appeals.

Deputy Ardagh

In terms of potential decisions which must be taken in south County Dublin, Offaly or Connemara, for example, I am looking at issues such as how certain standards would apply to the clustering of units. Recently the question of spotted development around the country has been raised.

Mr. O’Connor

I have one point to make about that. The board is obliged to have regard to the local development plan. The local development plan can differ quite significantly in regard to policy on the sort of thing to which the Deputy refers. The board might take a different decision in different areas because of a different approach to development or whatever in the two different development plans. Therefore that is a factor which must be taken into account by the board. It is obliged by law to have regard to that. The board is not obliged to be bound entirely by the development plan but it must take it into account.

Deputy Ardagh

Am I right is saying that the development plan is not sacrosanct as far as An Bord Pleanála is concerned?

Mr. O’Connor

Not as far as the board is concerned but it is taken very seriously.

Deputy Ardagh

Am I right in saying there should be uniformity around the country?

Mr. O’Connor

Excuse me.

Deputy Ardagh

Therefore there should be greater uniformity. If the development plan in each county is not the be all and end all, then surely within An Bord Pleanála there would be some theme or way of doing things.

Mr. O’Connor

Yes. Proper planning and development principles would be applied.

Deputy Ardagh

Should decisions of this nature be taken in relation to particular developments that are broadly similar?

Mr. O’Connor

We would like to think we are generally consistent. However, as already stated, you would have to have regard to the development plan in judging this.

Deputy Ardagh

I thank you for your replies.

Deputy Durkan

I compliment An Bord Pleanála on its report for the year 2000. I recall discussing it with representatives of An Bord Pleanála on a previous occasion, but it may not have been at a meeting of this committee. The running costs of An Bord Pleanála are paid out of the Vote for the Department of the Environment and Local Government. What is the total atpresent?

Mr. O’Connor

The total cost in the year 2000 was £5.9 million, of which £4.9 million came by way of an office grant. The remainder was raised through fees for appeals.

Deputy Durkan

I compliment the board on the way it has dealt with a huge raft of appeals, particularly those involving high profile cases where large numbers of people had genuine concerns about issues affecting them and their way of life. I wish to continue with the line of questioning begun by Deputy Ardagh. I note the reference to county development plans. I am also aware of the board's discretion in the matter of either having regard to or ignoring them.

Mr. O’Connor

We do not——

Deputy Durkan

It could be said, for example, that the board had regard for the plan and proceeded in a particular direction regardless, which is fair enough. To what extent has the number of cases coming before the board increased?

Mr. O’Connor

If we go back to 1994, the period——

Deputy Durkan

I am more interested in the past five years.

Mr. O’Connor

The number has increased by approximately 100% in the past five years. It has roughly doubled.

Deputy Durkan

Does the board have any system for vetting the quality of objections? For example, it has been stated there were mischievous or misleading objections. Is there any method whereby the board examines the depth and quality of objections?

Mr. O’Connor

Let me put it this way, a person has a basic right to appeal, but they must state solid grounds for doing so. If they pay their fee and state their grounds, they are entitled to receive due process and full consideration. There is also a provision in the Act which allows the board to dismiss appeals that are vexations, frivolous or without substance or foundation. In approximately 1% of cases the board actually exercises this right. If an appeal is received and it appears that it is either without substance or foundation or is vexatious, the board will exercise its discretion. However, it is our experience that it is quite difficult to exercise that discretion in many cases where those involved may eventually lose the appeal, but are entitled to due process, particularly if there appear to be reasonable planning grounds for their objection.

Deputy Durkan

Let us consider the case of a person who proposes to build a factory, for example, for which Government approval, grant aid, etc., may have been received, but I, as an individual, have decided to lodge an objection and is within my rights to do so. What is the degree to which the board would observe the validity of my objection, in view of the fact that I was the only objector and given the magnitude of the project to which I was objecting? Would it take two, three, six months or longer to make a decision? What would be the costs involved? I cite this example as opposed to one where a community might object and it could reasonably be assumed that there were valid reasons for making that objection.

Mr. O’Connor

There are a couple of points to make about that. Once an appeal is lodged with the board the law states it must treat the entire matter as if the application had been made to it in the first instance. This is what we call the de novo principle. Once it receives a valid appeal the board must consider it in its entirety, not just the points made by the objector. Where the objector is an individual, the board is obliged to consider the merits of the case made. The number of people subscribing to an objection is not a primary consideration, it is the merits of the case made by the person appealing.

Deputy Durkan

A single objector who has ample time on his or her hands can, therefore, object to a major project and delay it almost indefinitely simply by using the correct phraseology and planning terminology. Is that correct?

Mr. O’Connor

I hope he or she would not hold it up indefinitely. He or she would certainly delay the project while the case was being processed. However, I would like to think that the board would make the correct decision in the end having first judged his or her case on its merits.

Deputy Durkan

Surely the board would have more regard for an objection to which were attached the names of an entire community as opposed to one submitted by an individual. I, as the objector in this particular case, could have had a disagreement with the proposer of the project on a previous occasion, but would not state this in the course of my objection. How does the board differentiate between frivolous or vexatious objections from valid objections in such circumstances?

Mr. O’Connor

If it is frivolous or vexatious and it appears that the board can dismiss it, it will do so. A third party has a right of appeal under the law and if he or she makes a valid appeal, pays his or her fee and sets out grounds which are valid in planning terms, he or she is entitled to due process and full consideration of his or her appeal.

Chairman

Deputy Durkan, the board's decisions are not a matter for this committee.

Deputy Durkan

The Chairman is correct. It is the length of time involved in making the decision, the manner in which that decision is made and the likely impact on the costs that concern me.

Mr. O’Connor

I accept entirely what the Deputy is saying in regard to the time involved. I, personally, regret that it takes too long to dispose of some of the cases involved. The type of large-scale projects to which the Deputy refers which involve issues of employment creation and infrastructural development are given priority by the board. Nevertheless, the system takes too long. The fact that appeals can take so long detracts from the validity and the public perception of the planning process. That is the reason we are taking these special and exceptional measures which will partly, at least, mitigate the point made by the Deputy about delays.

Deputy Durkan

Is the board taking special measures to separate time-consuming, costly, vexatious or frivolous objections from valid ones?

Mr. O’Connor

No. We are prioritising particular types of projects.

Deputy Durkan

That is fine. There is, however, an obvious lack of a mechanism to eliminate vexatious or frivolous objections. As a result, the board incurs the same costs as it would in a case where a valid objection is made on the basis of good planning principles.

Mr. O’Connor

There are changes in the 2000 Act which have not yet been put in place and which are designed to strengthen the board's powers in respect of dismissing cases that are without foundation and so forth. We will have to wait to see how these will operate when they are brought into force next year.

Deputy Durkan

Are you aware that there is an opinion abroad that frivolous objectors can decide to make an objection to the board in the clear knowledge that it will then be within their power to delay the process indefinitely or for perhaps six or 12 months or more? Is there a basis for this view?

Mr. O’Connor

No, I would not like to believe so. I would like to believe that those making appeals are doing so for proper reasons. There may be cases of the kind to which the Deputy refers, but most of the appeals we receive are the result of genuine motivation. Under the 2000 Act if an appeal is made with the sole purpose of trying to delay a project, the board will have additional powers to deal with it.

Deputy Durkan

How many appeals are withdrawn before the board makes a decision?

Mr. O’Connor

In round figures about 10% of appeals are withdrawn during the process.

Deputy Durkan

Has an inquiry ever been made into the reasons for such withdrawals?

Mr. O’Connor

No, I do not think so. I imagine there is a lot of reasons.

Deputy Durkan

Has Mr. O'Connor ever received any information——

Mr. O’Connor

When I say withdrawn, sometimes the first party appealing against refusals will withdraw because he or she will have made a further application to the planning authority and have got the matter sorted and will withdraw the approval. We are not just talking about third parties; we are also talking about first parties withdrawing. I could tell the Deputy the split between first and third parties but perhaps it is half and half. I do not know but about 5% of appeals result in third party withdrawals.

Deputy Durkan

Is there evidence to support the suggestion that in some cases appeals are withdrawn by objectors on foot of payment of a fee to the objector?

Mr. O’Connor

There has been suggestions of that but hard evidence is another thing to come by.

Deputy Durkan

Has the board ever attempted to evaluate the cost to the taxpayer of pursuing at length an objection which is subsequently withdrawn on payment of a fee? Does the board, for instance, have a suspicion as to why the objection should be withdrawn?

Mr. O’Connor

No, we do not. If the appeal is withdrawn that is the right of the people who lodged the appeal in law and the board is taken out of the picture then. We have no further function in the matter.

Deputy Durkan

If it was suggested to Mr. O'Connor that indications had been made to the effect that objections had been withdrawn on foot of the payment of a fee, would he dismiss that?

Mr. O’Connor

The parties involved would have to withdraw it. The Deputy is trying to establish whether, if the board learned after an appeal was withdrawn that it had been withdrawn because money had been paid or whatever, somebody should be charged for the expense involved in pursuing that appeal. It is not something the board has done to date, although it would be entitled to look at expenses in that case. Where we decide a case, we are entitled to decide on levying expenses on some of the parties involved. It is not something the board has done, to my knowledge, and I am 18 months in the job. Before that time, as far as I know, it was not the practice of the board to do that. I would need to check the Act regarding whether the board has the power to do so where an appeal is withdrawn.

Deputy Durkan

I am interested in any information that is available regarding cases where an appeal or objection was withdrawn on foot of agreement between the objector and the first party, or whatever the case may be.

Mr. O’Connor

In most cases, we would not know. What the board gets in the report is a one liner saying "I wish to withdraw the appeal".

Chairman

Is the Deputy making the point that the person might have lodged the objection on the basis that he or she might receive some monetary compensation if he or she withdraws it?

Deputy Durkan

Yes, that is the suggestion. Mr. O'Connor cannot confirm or deny that.

Mr. O’Connor

Under the 2000 Act if the board gets a feeling that this might be the motivation for an appeal, it would have the power to dismiss it.

Deputy Durkan

If evidence emerges that that has happened on more than one occasion, I presume the board would examine the cases because there is a cost to the Exchequer. Delays are caused and the financial outlay of the board must be picked up by the State.

I refer to a point raised by Deputy Ardagh regarding the reasons for decisions and the number of cases in respect of which decisions of the local authority were upheld and rejected. I also refer to executive decisions by local authorities. Reference is usually made by an objector to the planner's report as opposed to the decision and it is always deemed that the executive decision is incorrect. The objector generally will challenge the executive decision on the basis that it has not been substantiated by a planning officer's report. Is that a fair assessment?

Mr. O’Connor

Yes, sometimes that can be the case.

Deputy Durkan

Is that the case regularly?

Mr. O’Connor

Yes.

Deputy Durkan

The board also has the right to make an executive decision. Is it correct that the board can decide to uphold or reject the planning officer's report and regularly does so?

Mr. O’Connor

Yes, it can do that. The board has to look at the merits of the case. Who took the decision at local authority level is not material to the board. If the decision is properly taken by the planning authority, whether it is taken by a delegated authority from the manager or under section 4, it does not matter to the board. The board looks at the decision and the objection on their merits and is obliged to have regard to the entire circumstances surrounding the application.

Deputy Durkan

What percentage of cases in rural Ireland relating to one-off housing is the subject of objections and referred to the board? In what percentage of those cases is the local authority's decision upheld by the board?

Mr. O’Connor

Third party appeals involving one-off rural housing are upheld in more than 50% of cases.

Deputy Durkan

Would it be 80%?

Mr. O’Connor

No, it is 57%.

Deputy Durkan

Does that refer to all cases and not only one-off rural housing?

Mr. O’Connor

No, that is one-off rural housing.

Deputy Durkan

Only 56%?

Mr. O’Connor

Yes, 56% of the appeals are successful.

Deputy Durkan

Is that the average?

Mr. O’Connor

That is the overall figure. In talking about this it is important to keep context in mind. We get only a small proportion of the one-off rural houses that are built. Around 6% or 7% end up on appeal. The Department produced figures. There are 18,000 one-off rural houses. We get 1,200 on appeal.

Deputy Durkan

That is normally the case. I accept those bona fides. However, if there was an organised objection system, the board could have all one-off rural housing applications sent to it on appeal. Is that correct?

Mr. O’Connor

I suppose. I would not like to think so because that would be a total change in the traditional pattern of appeals.

Deputy Durkan

Is it true that if there was an organised objection system to all one-off housing applications in rural Ireland, it automatically follows that they would all be appealed to the board which will take time to consider them and so on?

Mr. O’Connor

It would have a major impact on the volume of appeals.

Deputy Durkan

It could then be the case on a county by county basis that everyone who applies for one-off planning permission in rural Ireland, having lived there all their lives, could find themselves the subject of an objection to the board. What are the chances of the decision on the application being in accord with the local authority's decision?

Mr. O’Connor

I do not know because traditionally we only get contentious cases. Only 6% or 7% of the total number of such cases are sent to the board. By definition they are contentious. I do not see the same thing happening in general.

Deputy Durkan

If there is an organised objection by a community to a development, there is provision for an oral hearing.

Mr. O’Connor

Yes, in the case of an appeal, whether it is organised by a community or otherwise, an individual can request an oral hearing.

Deputy Durkan

But the individual will not be granted a hearing.

Mr. O’Connor

No, there is only about 1% of appeals.

Chairman

I remind members that a vote is taking place in the Chamber.

Deputy Durkan

I will finish soon but what I am coming to is important. There is a strong belief on the part of people in rural areas that they do not stand a chance, in the face of organised objections, of getting their entitlement under the law to get planning permission in the ordinary way. A third party appeal to the board against a one-off house in my constituency has an 80% chance of success.

Mr. O’Connor

We would not deal with that.

Deputy Durkan

Those are the figures

Sitting suspended at 5.21 p.m. and resumed at 5.35 p.m.

Deputy Durkan

We were discussing the issue of the single objector to the single house. The chairman stated that oral hearings could apply in cases where there is one objector to a single house as in larger cases. How many cases involve single houses?

Mr. O’Connor

I cannot remember any case in which we granted an oral hearing for a one-off house. That is not normal procedure. Only 1% of appeals go through the oral hearings process, but they would involve larger developments.

Deputy Durkan

I accept that and understand the reason for it.

Mr. O’Connor

If, for example, a large number of people are interested in a case we would take account of that and decide whether to go the oral hearing route.

Deputy Durkan

In the event of there being an organised objection, in other words, a widely-based objection from an organised group or groups to a one-off house, to what extent would that change the situation? Does the board allow an oral hearing so the applicant has an opportunity to state his or her case before it?

Mr. O’Connor

I do not recall any case involving a one-off house where we held an oral hearing. I think we would take the view that issues surrounding such a case could be dealt with by way of written representations from all the parties.

Deputy Durkan

To be fair, that is not my question. In the event of there being, as I have already outlined, an organised system of objection from a group or groups throughout the country to a one-off house, what is the board's attitude to granting an oral hearing?

Mr. O’Connor

I would not normally consider that we would allow an oral hearing. However, each case must——

Deputy Durkan

Notwithstanding the existence of organised objections?

Mr. O’Connor

They can be dealt with under the written procedure when the development is of the scale, size or importance of a one-off house.

Deputy Durkan

Mr. O'Connor is stating that, in the face of organised objections, the board sees no reason for holding an oral hearing as would be the case where a community would object to a major project, or whatever the case may be. Does the board see those two scenarios as synonymous with regard to due process?

Mr. O’Connor

We would first consider the importance of the project and whether it was necessary. We would have to see if the project was necessary in terms of developing a proper understanding and a full thrashing out of all the issues and decide whether an oral hearing was necessary. We do so only where it appears to us that it is necessary for that reason. Only about 1% of our decisions are heard orally.

Deputy Durkan

The current position is that I could set up a body or group to organise objections to every planning application made to every local authority, or I could select a group or category of people and decide to systematically object to them and proceed on that basis ad infinitum. Is that correct?

Mr. O’Connor

That is the law, yes. Changes are coming in the 2000 Bill whereby disciplines are being attached to the right to appeal and so on. The Bill will be passed by the Oireachtas next year so that will be pertinent to the Deputy's point.

Deputy Durkan

If possible I would like to ascertain on a county by county basis the number of one-off applications which have been referred to the board by way of objection and the number of cases in which the council's decision was upheld or rejected. This would allow us to evaluate the length of time taken to process applications, the degree of importance of each case and the need to have due regard to the fact that, under the Constitution, everyone is entitled to due process. Is that a fair assessment?

Mr. O’Connor

I will ask the chief officer whether our system will deliver that data.

Mr. Mullaly

We may be able to extract that data.

Deputy Durkan

I would be grateful for that.

Mr. Mullaly

It would be time consuming because the information is not readily available.

Deputy Durkan

My last question relates to the number of board members required for a quorum in order to make a decision. How is the quorum selected?

Mr. O’Connor

The three is set down by law.

Deputy Durkan

I am aware of that but how does the board select the quorum?

Mr. O’Connor

The meetings are rostered on the basis of a quorum of three people. That is how we normally operate. Most issues are decided on that basis. A roster is organised and a meeting set up on a weekly basis by either the chairman or deputy chairman.

Deputy Durkan

They are drawn without any reference to criteria and so on?

Mr. O’Connor

I would not say that.

Deputy Durkan

Would you tell us more about that?

Mr. O’Connor

We would have regard to the different experiences and so on of members. We try to get what we would consider to be a reasonable balance. For example, we would not put three relatively new members on the board. We would avoid a situation where three such members would constitute a quorum on a particular day. There is certain discretion involved in that regard. Generally speaking, it is a pretty random system and nobody can guarantee in advance what meetings they will attend or what cases they will be dealing with, apart from the case they are presenting themselves. Nobody knows what will be the outcome before going into a meeting.

Deputy Durkan

My colleagues are very anxious to ask a series of questions. In conclusion, I presume that planning criteria only is alluded to in the course of the determination of the case.

Mr. O’Connor

The proper planning and development of the area.

Deputy Durkan

Just that in every case?

Mr. O’Connor

Yes, absolutely.

Deputy Durkan

May I ask An Taisce one last question? It has gone abroad publicly that An Taisce has decided to systematically object to planning applications, particularly the granting of planning permission, by various local authorities throughout the country. My constituency has been identified as one of the areas in question. As I asked the previous witness, does An Taisce receive grant-aid or funding from any Government source? Is it a free agency?

Mr. Smith

For the first time this year we received £55,000 from the Department for our general operations. We receive some funding for some of our other activities, including the blue flags, green schools and anti-litter campaigns. This year we received an additional £55,000 for general operations.

Deputy Durkan

In my innocence I understood An Taisce did not receive any State aid. However, it seems it does receive some.

Mr. Smith

Yes, because we are a prescribed body under the planning Acts. Local authorities are required to refer certain planning applications for our attention. As we are the largest environmental body in the State, I suppose the Government felt it was appropriate to fund us, as is the norm in European countries.

Deputy Durkan

In fact, provision is made whereby An Taisce can fund an appeal. Is it correct it only costs it 50% of the normal rate of appeal for any other appellant?

Mr. Smith

That is correct; it costs £60 for an appeal.

Deputy Durkan

As opposed to £120. Are you aware of the proposal to systematically appeal one-off housing applications to An Bord Pleanála?

Mr. Smith

I am aware of reports which are incorrect. An Taisce is not opposed to all one-off housing in the countryside. It is in favour of land-based economic activity in the countryside and the provision of housing for that activity, including for agricultural dwellings, eco-tourism, aquaculture, forestry and so on. It is in favour of developments for that purpose. It has a lengthy policy, which I will forward to the Deputy, which has not been properly reported. An Taisce is in favour of funding the restoration of dilapidated vernacular buildings. Perhaps unsurprisingly, it is in favour of eco-villages which we would like to see operating on a much bigger basis than is the case at present. Above all else, An Taisce has a policy of promoting rural towns and villages as places to live. Taken together, we consider our policies to be very pro rural Ireland. For example, An Taisce believes that expansion of the greater Dublin area should be curtailed and that no more than 25% of development should take place in the greater Dublin area. We feel we have been maligned and misreported because we consider we are pro-rural.

Deputy Durkan

Is it true you were misquoted?

Mr. Smith

I would not go so far as to say I was misquoted.

Deputy Durkan

My question was whether you were misquoted.

Mr. Smith

Certainly I would say the reports were misleading and that I was misquoted in many instances. There were initial reports from a journalist who heard me say certain things. I would not go so far as to say she misquoted what I said. It was in the context of speaking to the Kerry Association of An Taisce. An Taisce has 27 associations countrywide. There was some concern about the fact that approximately 78% of housing in Kerry is being built as one-off dwellings in the countryside. There was widespread discussion during which that was one of the principal issues raised. We were asked how we could possibly consider stopping this happening. I commented along the lines that if local associations wished to appeal all the planning applications, there was quite a high success rate with An Bord Pleanála.

Deputy Durkan

How did you know there was quite a high success rate?

Mr. Smith

I suppose we would have registered the successes of our own appeals to An Bord Pleanála. We are also aware of the fact that it is Government policy to make a presumption against one-off urban generated houses. This is the type of commuter-based urban generated one-off type housing with which we would take issue. An Taisce has an annual budget of £130,000, therefore, it is not in a position to lodge appeals against the 18,000 one-off houses which are built every year.

Deputy Durkan

Has An Taisce ever withdrawn an objection?

Mr. Smith

An Taisce lodges approximately 70 appeals each year. If one were to believe the local newspapers, one would think that An Taisce lodges thousands of appeals annually as opposed to 70, of which approximately 20 or 25 are against one-off housing. We are surprised it is perceived An Taisce could stop——

Deputy Durkan

I readily recognise a great deal of the necessary good work, including preservation work, done by An Taisce. I am one of the people who regularly calls for that work to be carried out. However, I would be concerned if it emerged that systematically, a particular organisation, voluntary or otherwise, irrespective of the good it did, proceeded to change the planning structure. I want to put the question again. Has An Taisce withdrawn objections to planning applications?

Mr. Smith

An Taisce would never lodge a frivolous or vexatious objection or appeal, nor has it ever been found to do so. We consider we are pro-development providing it is good quality development. In some cases we try, if possible, to negotiate a contract with applicants. If they comply with certain conditions, we would agree with them circumstances in which we would withdraw an appeal. This probably happens in the case of five or six developments countrywide.

Deputy Durkan

Has An Taisce ever been offered a fee to withdraw objections?

Mr. Smith

We have never been offered a fee to withdraw objections.

Deputy Durkan

Did An Taisce ever withdraw an objection on foot of any such offer?

Mr. Smith

Certainly not.

Deputy Durkan

Given his involvement in the planning process, does Mr. Smith feel that an individual making an application for one off housing will have the same chance as anyone else of winning his or her case?

Mr. Smith

I would not like to speculate. I defer to the court statistics.

Deputy Durkan

Mr. Smith referred earlier to the high success rate of his objections.

Mr. Smith

We have a high success rate generally. We would probably be getting satisfactory results countrywide. We deal with matters ranging from high rise in Dublin to out of town shopping centres and one off housing. We are getting satisfactory results in above 80% of cases from the board.

Deputy Durkan

In answer to my earlier questions, the chairman of the board did not recognise the figure of 80%.

Mr. Smith

I am not saying the results are 100% what we would want. I am not speaking merely about one off houses. In general we get results which we consider to be satisfactory in 80% of cases.

Deputy Durkan

What is the success rate in one off housing cases?

Mr. Smith

I have not monitored them. Last year we appealed no more than ten. This year the figure is closer to 20. It has not been a phenomenon for us. We lodge between 2,000 and 3,000 submissions in the planning process every year, of which we appeal probably 70. We are not the appellants we are considered to be.

Deputy Durkan

I am aware of that. I presume the board does not wish to comment on the fact that An Taisce has a very high success rate in terms of its objections. I do not from where the basis for that argument comes. I presume that, like politicians, An Taisce could not always be on the side of the angels and would lose the occasional case. I am not sure if that is the case or not. However, by Mr. Smith's own admission, things appear to be in his favour. In the event of him making an objection - I can tell from my own experience - an applicant for planning permission for one off housing probably has a 10% chance of being granted permission by a local authority.

Mr. Smith

Perhaps that is because of the national policy. Perhaps it is also the case because that is what is written into many local authority development plans. We would consider that we have increasing success with An Bord Pleanála because our remit is not an anti-development one. Our remit is one of sustainable development and long-term quality of life. Maybe the board's remit is the same.

Deputy Durkan

I was born in rural Ireland and lived there for the first part of my life. There were no settlements there. It was rural Ireland. There was an indigenous population which was there by tradition. That was the culture of the country. During the time of the penal laws the system changed somewhat and people were driven out into the country if they were of the wrong political or religious persuasion and kept there. Our system is vastly different from that of the UK. In rural Ireland we did not live in settlements. The nearest settlement to where I was born was ten miles away and there was a substantial rural population in between. This is part and parcel of what keeps rural Ireland alive. To depopulate rural Ireland is to try to do something other people tried to do and failed.

We are totally different from the UK. There they have the landlord system. In Scotland the crofters were driven off the land, out of the countryside and into settlements. After the last war, because of the scarcity of housing, people in rural Europe were driven into settlements out of necessity and they are still in them. One can go and visit them now; they are not great. I am totally opposed to Mr. Smith's view that the law says rural Ireland is not the place to live and people should not be encouraged to live there.

Mr. Smith

May I clarify that and say there is no respectable body which is as pro-rural rejuvenation and repopulation as An Taisce.

Deputy Dennehy

Like Deputy Durkan I point to the good work of An Taisce in the heritage area down the years.

I did not see the quote attributed to Mr. Smith. I saw the television broadcast featuring my colleague, the Minister of State, Deputy Ó Cuív, and I did not come away from it feeling happy. I heard comments on what was reported, whether it was said or not. The public perception is that An Taisce intends to object to individual one off houses.

While the committee cannot set or discuss Government policy, I believe an issue such as this must be discussed. Does Mr. Smith think damage has been done to An Taisce by the quote, or misquote, which was attributed to him?

Mr. Smith

Being an environmentalist is not a particularly easy or fashionable thing in Ireland at the moment. We do not do it for popularity. We do it for the long-term and we note that it is very unusual for countries to be building 36% of their housing stock as one offs in the countryside. We try to fight for a more sustainable view of planning in the country and that is an issue which we, as the leading environmental body with prescribed functions under the Planning Acts, must address.

I do not think we have been damaged. In calls to our office, many people have suggested they are delighted someone is championing this issue. It is obviously a very heartfelt issue about which many people viscerally feel very strongly. We are annoyed that we have been portrayed as anti-rural Ireland because that is not the case. We have five policies on rural Ireland and we consider them very positive. We are disappointed to have been presented as anti-rural Ireland but we think the general issue of one off housing needs to be addressed to some extent and we think the Government probably agrees with us.

Deputy Dennehy

Everyone I know in either House of the Oireachtas is, in one way or another, an environmentalist. They may not wear a green tag all the time but they are environmentalists. That is why they are here. They want to maintain society outside.

In view of the fact that An Taisce has a privileged position - it has only a 50% charge as against anyone else - is it an abuse of this privilege to go after one off housing? My next question may be best answered by Mr. O'Connor. If An Taisce is to take a systematic approach to this matter and make widescale objections to individuals who are trying to provide a home for themselves, should it have to pay the full fee?

Mr. O’Connor

The fee structure is a matter of Government policy. The board does not have a function in the matter at the moment.

Deputy Dennehy

We do not wish to discuss Government policy. Does Mr. Smith feel he has a privileged position? He can make twice as many objections as anyone else.

Mr. Smith

In no case do we have a vested interest. We are not in a position systematically to appeal single one off houses countrywide, even if we wanted to because we simply do not have the budget for it. I also draw the Deputy's attention to the fact that we will be paying the same planning fee as everyone else for objections to typical one off houses, which will £16 in addition to the £60 we have to pay for appeals, so it will be even more difficult after the passing of the new planning regulations. We systematically pursued this. I do not think there is anything particularly offensive in An Taisce trying to take a comprehensive approach.

Deputy Dennehy

The view is that it may take on a young couple rather than an organisation which has millions of pounds to build a high rise development, be it a local authority or someone else. That is the major difference which should be recognised. The person building his or her own home is at a huge disadvantage, financially and politically, in the sense of having an organisation behind him or her. There is no comparison. An Taisce should not compare a young person or couple with the corporate sector.

Mr. Smith

Last year we appealed as many one-off houses as we did high rise developments. Some 18,000 one-off houses were built in the countryside to which An Taisce objected to about ten.

Deputy Dennehy

I wish to return to the comment of the chairman of the board that there is a policy since 1998 of ascertaining the views of local elected representatives. It is very important that such dialogue takes place because, as the chairman said, planning applications and appeals are not an exact science. I have found that there is considerable conflict between public representatives, who have no vested interest and act for the public, in devising development plans and An Bord Pleanála in that the board has often ruled against decisions taken by public representatives.

For example, some years ago Cork Corporation, in its wisdom, decided it would not have a second O'Connell Street and prohibited the sale of take-away foods on Patrick Street, the main street in the city. Within 18 months An Bord Pleanála granted permission for three such outlets on appeal. The corporation had studied this matter carefully and decided in the interests of the city to write into its plan that there would not be such commercial outlets on the main street. Would the actions of the board not take from the confidence and willingness of public representatives to take these actions because they would ask the reason they should bother?

Mr. O’Connor

If I understand the Deputy correctly, this policy was enshrined in the development plan for the city.

Deputy Dennehy

That is correct.

Mr. O’Connor

It is a long time ago and we cannot discuss individual cases. It is before my time, but I would be surprised that such a policy would not be supported by the board. I know, for example, in the Temple Bar area of Dublin where there were similar policies about the intensification of the pub business that the board strongly supported the planning authority's policy there. I do not want to comment on the case in question, but it would be surprising if the board did not support such a policy.

Deputy Dennehy

It was one of the greatest surprises we ever received. In our minds it certainly discredited An Bord Pleanála, which is unfortunate. On the analysis of the figures for planning appeals determined, the decision of the planning authority was upheld in only 42% of cases, amended in 31% and reversed in 27%. Am I reading this correctly?

Mr. O’Connor

No, I do not think so. The confirmation of the decision of the planning authority means there was no substantial change. In the second case where the decision was amended, that may mean relatively minor changes, differences or changes in conditions. That is much more likely to be seen as also confirming the decision of the planning authority.

Deputy Dennehy

Yes, but 27% of decisions reversed is astronomical. I would accept it if it were 4% or 5%. These are trained professional planners much the same as the board members who are seconded and would have made similar decisions before being seconded. When I saw 27 out of every 100 cases being reversed, I thought I had read it incorrectly.

Mr. O’Connor

No, that is right.

Deputy Dennehy

I could understand it if public representatives had granted permission. I could understand us getting it wrong. Surely with a planning regime in place and the fact that all planners have gone to the same school, more or less, they should have been able to reach a consensus during the years and know what is acceptable and what is not. Do you think the figure is high or normal?

Mr. O’Connor

Maybe it is. It depends on one's point of view. The board looks at every case on its merits from the beginning. That is what we are obliged to do by law. I do not have the figures for the United Kingdom, but generally there is a pretty high reversal rate there also.

Deputy Dennehy

I am delighted we have this chance to speak because we are normally constrained in some way. Given that there is a relatively small number of planners and in the light of their experience and so on, I find the figure for those who get it wrong incredibly high.

Mr. O’Connor

The figure has tended to increase during the years. It would have been lower some years ago. It has tended to increase gradually over time.

Deputy Dennehy

Is there a reason? Is it expertise on the part of third party objectors or something similar?

Mr. O’Connor

I do not know. Perhaps local authority planning departments, like the board, have been under huge pressure in recent years with the increase in development and the mushrooming number of applications. Perhaps they may not always have been able to give matters the full degree of consideration there might have been in the past.

Deputy Dennehy

The next chart shows appeals by third parties which comprised 44% of all appeals. The same analysis as used previously shows that only 2% of decisions by local authorities in this category were upheld with the same conditions.

Mr. O’Connor

Yes, with the same conditions, but if the Deputy looks at the second category——

Deputy Dennehy

Yes, it is 57%.

Mr. O’Connor

——many of the changes would be minor.

Deputy Dennehy

The board reversed 48% of the decisions.

Mr. O’Connor

That is correct.

Deputy Dennehy

While I am glad the board consults local authorities and public representatives, does it hold any forum for planners? I do not suggest one should be held in order that they could be told how to get around the rules.

Mr. O’Connor

No, we are an independent appeals body.

Deputy Dennehy

This will have to be examined and whoever does so, be it public representatives or the Minister, will have to call planners together to discuss it. It is unbelievable that only 2% of decisions appealed by third parties were upheld with no changes and that 41% were reversed in this category and 27% overall. As a lay person not involved in the construction industry, I find these figures incredible. I would have thought the figures for reversals would be 7% to 9%.

Mr. O’Connor

The Deputy should bear in mind that only 7% or 8% of all decisions come on appeal and, by definition, they will be the contentious ones. Some 90% of planning applications are granted. It is easy to focus on these figures on their own, but these are the contentious 8% or 9% of all decisions made throughout the country.

Chairman

The Comptroller and Auditor General would like to make a point.

Mr. Purcell

Deputy Dennehy said this was something which would bear further examination. That is precisely the type of work we have been doing in trying to establish the differences between counties and so on in the rate of overturn on appeal. I would like to keep my powder dry at this stage because our findings are tentative and we must communicate with the Department and An Bord Pleanála. There are differences. We have gone to a number of local authorities which were at different ends of the spectrum, so to speak, to try to understand the underlying causes for these types of trends. I hope the committee will be able to come back to this matter early next year when we hope to give some insight into the concerns expressed by Deputy Dennehy. The committee will be able to come back to this early next year and we hope to give some insight into the concerns expressed.

Deputy Dennehy

I am glad of that because very often when a public representative raises an issue like this, he or she is accused of having a vested interest. We are here because we are elected and asked to do a job. We are non-professional. There is anecdotal evidence, such as about parts of Cork city where it was said that unless one agreed with a certain person's ideas, one would be dragged through the courts. Also, some planners insist on certain things at different times, such as stone or brick fronts. This costs a lot of money. It may only be £5.5 million here but the national effect is massive.

One of the nicest things in Mr. O'Connor's report is that of the six or seven cases taken to the High Court, the board was only found against in four, which shows its professionalism. However, there is a difficulty somewhere. Mr. O'Connor's body is independent but dialogue is needed. There should be a national conference to explain why planning permission is refused. He would not compromise himself as he quoted cases today. It is frustrating for the ordinary person and they turn to us to speak for them, but it is an inexact science to which we try to bring a logical approach.

Mr. O’Connor

Since I have been chairman, the board makes all its decisions to be easily understood by ordinary people. The reasons are spelt out and the files are open. If the board disagrees with the inspector, it sets out why it does so. Right or wrong, people can understand how the board arrived at decisions and they can compare them to local decisions.

Deputy Dennehy

I am glad to hear that in the national interest as there is a lot of money involved. It was fun for some people. We heard of people who lived in Connemara objecting to applications in Bantry. It was all right when we had a 12% growth rate but we do not want a return to the old days. The fun has to go and we must get serious. Are there plans for regionalisation? Will the board set up in the republic of Cork?

Mr. O’Connor

We have no plans at the moment. In my time as chairman, the emphasis was on dealing with the backlog and speeding up decision making.

Deputy Dennehy

I am thinking of travelling times. Mr. O'Connor might be able to do a few in the morning on his way up, but if one has to examine cases like Bantry——

Mr. O’Connor

It is an option but the inspectorate is based in Dublin now. It might be considered in future to have some inspectors based outside Dublin. It is not a priority at the moment as we are concentrating on the arrears and the time issue.

Deputy Dennehy

It is good to get the opportunity of this forum with no one pointing a finger and accusing us of bad intent.

Chairman

We appreciate the Deputy's comments as all of us are local authority members and the greatest bone of contention and source of frustration for our constituents is the planning process. Getting planning permission is like an obstacle course. Local authorities have two months to make a decision and often in the final part of that period they write to the applicant for more information. The applicant then has a further two months to reply. It creates frustration for everybody.

Mr. O’Connor

That will be changed in the new Act. On the point about local authority members, I invited the General Council of County Councils to meet us in January.

Deputy B. O’Keeffe

I welcome the Comptroller and Auditor General's report, which is very important. I know of one local authority where the refusals have increased from 5% to 20% and that is probably true of all local authorities. This is a golden opportunity to examine planning at local level, although not today. Has An Taisce undue influence on decision making?

Mr. O’Connor

Absolutely not.

Deputy B. O’Keeffe

We had an interesting comment from Mr. Smith who spoke about an organisation concerned about one-off housing in Kerry and stated that the success rate of his 70 appeals to An Bord Pleanála last year stands out as a jewel in the crown of the organisation nationwide. How successful has An Taisce been?

Mr. O’Connor

I do not have the figures for An Taisce separate from other appeals.

Deputy B. O’Keeffe

Are you aware that there is a perception among local authorities that An Taisce is very influential and has undue influence?

Mr. O’Connor

There may be that view but it may also be that An Taisce only takes strong cases. It may take 70 out of 5,300 appeals, which have a strong case. I take this opportunity to refute that anybody has undue influence. The board prides itself on its independence, which is a core principle. The most worrying criticism would be any suggestion that it is not entirely independent in the exercise of its statutory duties.

Deputy B. O’Keeffe

Are any board members also members of An Taisce?

Mr. O’Connor

No members of my board are members of An Taisce.

Deputy O’Keeffe

Are you satisfied that the three people who examine appeals are independent, impartial and open?

Mr. O’Connor

I am. As I said, the board's files are fully open three days after a decision is made. Anyone who is not satisfied can go to the courts and, as Deputy Dennehy said, the board has a good record of defending court challenges.

Deputy B. O’Keeffe

Are the various comments and inputs from the different members in changing an inspector's decision open to the public?

Mr. O’Connor

Not the comments, but the practice is for the board to set out on file why it reversed an inspector's decision.

Deputy B. O’Keeffe

In the era we live in, should the convictions of the various members and how they reach decisions be part and parcel of the information that should be readily available on how the board reached a decision?

Mr. O’Connor

I think that where the board disagrees with the inspectorate, the file should indicate clearly why it did so. It would not indicate the comment of each member before the board arrived at its conclusions.

Deputy B. O’Keeffe

Should the board's actual vote be appended to a file?

Mr. O’Connor

I think so. This was debated in the Dáil when legislation was being prepared and it will be a requirement of the new Act that where there is a vote on a decision, the numbers voting for and against must be indicated.

Deputy B. O’Keeffe

I listened to Mr. Smith with diligence and I am concerned because I got the impression that his organisation could be mischievous in terms of its approach to planning appeals. The organisation has the advantage of an appeal costing half what it would cost anyone else. At a branch meeting of the organisation in Kerry, members were concerned about the number of one off housing starts going ahead in the county. They sought An Taisce's advice and were told that it had been very successful in appealing to An Bord Pleanála. I do not want to misquote you but you advised them on how to get communities involved to object.

Would it be right to say that the organisation would be mischievous enough to go among its branches to advise members how to get communities involved in submitting appeals against individuals - young couples in many places - looking for houses in rural areas? If the organisation is as pro-rural Ireland as it claims to be, how can it say it is opposed to what is going on and yet be so involved in appeals against many young couples trying to stay in their own area? They are trying to be part of sustainable development. Is the organisation arguing against itself?

Mr. Smith

I do not know if it is permissible to object to terminology but I do not see how we can——

Chairman

Mr. Smith, I have probably allowed a lot of latitude in the questions on the basis that we could not confine ourselves exclusively to the count. I know how pertinent it is to the Deputies so that is why I have allowed latitude. You may express what you want to express.

Mr. Smith

There is nothing mischievous about any appeal that An Taisce would ever take. There are too many checks and balances within the organisation as to how we deal with both objections and appeals. We always try to serve the long-term and the public interest in any appeal that we take. We are neutral as to who the applicant is and there is nothing mischievous about anything we ever do. We do not have the budget to be mischievous nor do we take a sufficient number of appeals that it can be alleged we are mischievous. We also have a rate of success in objections. We lodge 2,000 or 3,000 objections at local authority level each year of which we feel obliged to appeal only approximately 70. So we have a success rate that suggests we are not mischievous. I have never heard the allegation made and it is certainly unsustainable to allege that we are in any way mischievous.

Deputy B. O’Keeffe

I raised it on the basis of what Mr. Smith said here today regarding the organisation in Kerry and the advice given to it. It seemed to me that the advice was that An Taisce had been very successful in appeals to An Bord Pleanála through getting communities involved and would advise the same approach - train communities how to object. That was the tenet of the what was said today.

Mr. Smith

There is a misunderstanding. I certainly did not advise in this particular case——

Deputy B. O’Keeffe

What exactly did you say? Let us come back to the Kerry meeting where the question was asked about one off housing. What exactly was the advice given?

Mr. Smith

The question was how we could deal with an epidemic of one off housing in Kerry where between 70% and 80% of all housing is one off countryside housing. I suggested that involving the community was one way it might be possible to deal with the problem. This would be for a systematic approach to appealing particular applications, but, in fact, it was clear to me that the Kerry association would not be in a position to take that approach because of the sheer volumes of applications. I did not suggest that morally it would be a good thing; I just suggested it as one way perhaps that progress could be made.

We are not against particular applications and we share the sentiments of some of the Deputies concerning the circumstances in which some people find themselves. Where we have a problem is where 36% of housing being built is one off housing in the countryside in a situation where many rural villages are in decline. We are not against all one off housing. We are pro one off housing for land based economic activity, including farming. Our stance is against urban generated single one off houses for commuters.

Deputy B. O’Keeffe

Are you against family members getting planning?

Chairman

Deputy, we dealt with this issue at length. I would like the questioning to return now to Mr. O'Connor who is the person under examination here as dealing with the public accounts. We have allowed a lot of latitude on this issue.

Deputy B. O’Keeffe

I accept the Chair's advice.

Mr. O'Connor, can I ask you about the mischievous appeals? Deputy Dennehy mentioned someone from Mayo appealing the erection of a mast in west Cork. There is a possibility that some people outside an area would be paid to object. Does this go on?

Mr. O’Connor

I could not be sure it is going on and one hears anecdotal stories, but we do not find evidence on the board's files to that effect. To be honest, I do not think it is a widespread problem. The new Act extends the board's power in terms of dealing with this. There is further recourse to disciplines, a word I used in relation to third party appeals that are made. In those cases an observation has to be made to the planning authority in the first instance so that an outsider to the area will not be able to object unless involved in the initial application process at planning authority stage. That may get over some of the Deputy's concerns.

Deputy B. O’Keeffe

How costly is the buying in of expertise? It was mentioned earlier that it is important to get the balance right between UK experts in planning and——

Mr. O’Connor

We buy in two types of expertise. We buy in "fee per case" inspectors who deal with small routine cases and we pay them a fee which is competitive in comparison to the cost of in-house appeals. We also buy expertise from private planning consultancy firms. We accept tenders or quotations from private firms to supply a professional service to the board by way of reports on planning appeals. We get good value on that. It might be commercially sensitive to mention figures but the figures we are paying are reassuring and not unfair to the taxpayer.

Deputy B. O’Keeffe

Is it a worry when using Irish firms that this is a small country and there might be interaction between developers and landowners over time?

Mr. O’Connor

Yes. It is very much an issue on our minds. We have set up checks and balances and various declarations have to be made on that. We have not come across any problems yet with it and I hope we will not. We have the best safeguards we can have in place. From the initial invitations to these firms it is made clear that it is the absolute sine qua non of any work for the board that propriety and independence should be to the fore and that anything that would undermine confidence in the board would not be tolerated.

Deputy B. O’Keeffe

In terms of incineration in Ireland the board has given permission in Meath, as I understand——

Mr. O’Connor

No, there is an appeal in relation to a proposal in Meath.

Deputy B. O’Keeffe

So that is still ongoing.

Mr. O’Connor

Yes.

Deputy B. O’Keeffe

I intended to ask a question about the health implication of incineration. The Minister has commenced a review on the health implications of incinerators. Will that appeal be determined before the health review has been completed?

Mr. O’Connor

No, that appeal will be determined on the basis of the law as it exists at present.

Deputy B. O’Keeffe

Will it not take into account the health implications?

Mr. O’Connor

It will not be able to take into account environmental pollution issues. These are matters which are outside the planning remit of An Bord Pleanála at the moment.

Deputy C. Lenihan

The Government, through the Department of the Environment and Local Government, is opposed to one-off housing and that is my view also. It is national policy under the spatial strategy to cluster development in towns or in renewable or sustainable villages. Some of the leading reports that have emerged in recent months mention the ironic situation of villages dying yet plenty of one-off housing in the immediate countryside around villages.

Mr. Smith

That is correct indeed. It is Government policy and it also happens to be An Taisce's policy.

Deputy C. Lenihan

In that sense, you are totally in accord with the environmental policies of the Government, notwithstanding the different views and opinions within the Government and within political parties. It is important that we clarify that. The next issue I want to refer to is the 21 week delay in relation to An Bord Pleanála decisions. Have you set a target date to be achieved?

Mr. O’Connor

Our statutory objective would be four months and that is what we are trying to achieve as fast as we can.

Deputy C. Lenihan

When do you hope to achieve four months as a maximum time?

Mr. O’Connor

It will take a while yet.

Deputy C. Lenihan

How long?

Mr. O’Connor

I suppose we should be in a greatly improved situation by the middle of next year.

Deputy C. Lenihan

Can you commit to a figure or a date?

Mr. O’Connor

People in the past have committed to a figure and it has not been possible to achieve it. I am therefore reluctant to go down that road.

Deputy C. Lenihan

Could you not take a very outside view?

Mr. O’Connor

The figures will show significant improvement. There are already improvements.

Deputy C. Lenihan

I recognise that, but is there a hard target? We are talking about taxpayers' money.

Mr. O’Connor

I am very reluctant to give these commitments because so many things can change. The intake of appeals next year will be a huge factor. Assuming there is no increase in appeals next year then I would say that from mid-year——

Deputy C. Lenihan

So you could do everything within four months?

Mr. O’Connor

Not everything. If we had a strategic target of hitting 90% of cases within four months we would be giving a reasonably satisfactory service.

Deputy C. Lenihan

Is that not in effect your target?

Mr. O’Connor

Yes, but there will always be cases which require oral hearings or EIS cases.

Deputy C. Lenihan

I know it is not your fault if somebody decides to build 5,000 houses in Leixlip. So that is 90% in four months from mid-year next year onwards?

Mr. O’Connor

That is our aim.

Deputy C. Lenihan

Will you report back to us? You do not categorise the vexatious objections.

Mr. O’Connor

We have figures on the numbers.

Deputy C. Lenihan

What percentage would you describe as vexatious?

Mr. O’Connor

Only about 1%.

Deputy C. Lenihan

So 1% of objections are vexatious.

Mr. O’Connor

Some 1% are dismissed or thrown out without going through the process. They can be vexatious or frivolous or considered to be without substance.

Deputy C. Lenihan

The obvious conclusion from that is that 99% are valid objections. I have read some of these case studies. They seem to be fairly arid descriptions. Can you categorise them so that we can get a sense of the percentage of types of cases, whether they are large industrial developments, for instance?

Mr. O’Connor

We do not keep figures on those categories. We have a system of indicating the type of development but it is not in our report.

Deputy C. Lenihan

I strongly urge that it should be included in your report from a public information point of view. There is no point in people objecting if they have no hope of succeeding. It should be broken down into categories such as single storey extension or whatever. When we are talking about one-off housing for instance, how many appeals are in this category?

Mr. O’Connor

About 24% of all the appeals we get relate to one-off houses.

Deputy C. Lenihan

Is that in the report?

Mr. O’Connor

It is not; we do not go into the categories in the report.

Deputy C. Lenihan

It would be helpful if you could.

Mr. Smith

Some 24% of appeals or 36% of development is once-off rural building.

Deputy C. Lenihan

It is very important that you include those statistics in your report. It is helpful to us as legislators and members of this committee so that we can evaluate your work in terms of value for money. Does the construction of extensions or conservatories on a house make up a huge percentage of the appeals?

Mr. O’Connor

I do not have a breakdown with me. Those appeals have gone down considerably because there was a liberalisation of the regime last year in terms of the square footage.

Deputy C. Lenihan

I would be interested in the figures. Can you break it down in terms of appeals by neighbours?

Mr. O’Connor

A lot of the smaller appeals relating to one-off houses or

extensions——

Deputy C. Lenihan

Can you break that down? It is very important in terms of the evaluation of your work. People have said here today that there are professional objectors. Is that borne out by the facts?

Mr. O’Connor

We would not categorise on the basis of the type of objection.

Deputy C. Lenihan

On the type of objector? I think that is very important if we are going to evaluate your work. An objection from a community is transparent but we do not know about individual objectors. Is the individual a neighbour abutting the proposed development or is it somebody who is not from the area? There is a political concern that the planning process is being clogged up although I am prepared to accept that this may be entirely mythical. The question is whether there is a kind of objector species out there who moves around objecting in a busybody way and who does not have a locus standi of some kind or other. Is that your perception?

Mr. O’Connor

One hears anecdotal stories but I think, by and large, it is not true.

Deputy C. Lenihan

That this will o' the wisp objector species does not exist?

Mr. O’Connor

I would not go that far. There are people who would object more than others but they are entitled to by law.

Deputy C. Lenihan

I think it would be helpful if we had some categorisation. I am not trying to forensically find out who these objectors are and where they live. However, I would like a categorisation of the types of objector. Has the £120 increased charge introduced by the Government made a difference?

Mr. O’Connor

No.

Deputy C. Lenihan

Did it change when we increased the charge?

Mr. O’Connor

Back in 1998 or whenever?

Deputy C. Lenihan

Yes.

Mr. O’Connor

Did that make a difference to the appeal rate?

Deputy C. Lenihan

We introduced a big increase in the charge.

Mr. O’Connor

No, it did not really.

Deputy C. Lenihan

Has it not decreased the number of objections or appeals?

Mr. O’Connor

No, it has not decreased the number of objections.

Deputy C. Lenihan

Is that because the charge is not high enough?

Mr. O’Connor

It is a matter of policy to decide the fee for an appeal.

Deputy C. Lenihan

That is true, but it is also a matter of taxpayers' money and, therefore, affects this committee. It was introduced as a deterrent against a background of perceived frivolous objections. If delays are occurring, that is one of the reasons.

Mr. O’Connor

When these fees were introduced in the early 1980s there was a big drop, a structural drop in the number of appeals.

Deputy C. Lenihan

Was this in 1998?

Mr. O’Connor

When these fees were first introduced for appeals. However, the increase in fees that occurred in 1998, I think, did not really——

Deputy C. Lenihan

It did not lower the numbers in any sense.

Mr. O’Connor

No. I do not think so. It may have had an effect but in the figures overall——

Deputy C. Lenihan

Is that because there is more development going on?

Mr. O’Connor

Of course, yes.

Deputy C. Lenihan

Does Mr. O'Connor have any kind of analysis of that? It clearly has not had any effect. Is Mr. O'Connor saying it has had no effect?

Mr. O’Connor

I am saying the recent increase in fee has had very little effect, but the introduction of a fee in the first place did have a big effect.

Deputy C. Lenihan

There was an initial drop-off.

Mr. O’Connor

Back in the early 1980s.

Deputy C. Lenihan

It was in the early 1980s.

Mr. O’Connor

Yes.

Deputy C. Lenihan

This is a policy matter for which Mr. O'Connor is not responsible. However, there is an argument that the £120 fee no longer has a deterrent value given our greater affluence. Would that be a valid conclusion? I note that Mr. O'Connor is not saying anything and that is acceptable.

Appendix 1 lists an issue into which the Comptroller and Auditor General will inquire. What is the explanation for the huge variations in the percentage of decisions appealed to the board compared with the percentage of decisions made by the authorities? There seems to be a huge——

Mr. O’Connor

This is a new table in the report.

Deputy C. Lenihan

It is a very welcome one.

Mr. O’Connor

There is much interest in it, based on what we were discussing earlier. The Deputy will notice a few things there. Most appeals occur in urban areas.

Deputy C. Lenihan

I had noticed that.

Mr. O’Connor

The earlier discussions might lead people to believe they were all in rural areas, but in fact they are not. Some of the rural counties have very low rates of appeal.

Deputy C. Lenihan

If I look at Waterford versus Dublin, why is Waterford outside the trend?

Mr. O’Connor

Dún Laoghaire-Rathdown has the highest rate of appeal.

Deputy C. Lenihan

That is correct.

Mr. O’Connor

This is followed by the cities, Dublin, Cork and Limerick.

Deputy C. Lenihan

There are many reasons we might conclude that is the case.

Mr. O’Connor

It is clearly a factor of property values in the areas. In built-up areas, new proposals for development would tend to be squeezed in. Because property values are high, they are trying to maximise the potential of sites. All sorts of issues arise. Property owners are very conscious of the impact it might have on the value of their properties.

Deputy C. Lenihan

In my experience, people in areas with higher values are more likely to object to proposed development. Is that mirrored in Mr. O'Connor's experience?

Mr. O’Connor

Although I have not carried out a study on this, from looking at the figures of rates of appeal from different areas that can be seen.

Deputy C. Lenihan

Why is Waterford outside the urban trend compared with Cork, Dublin, Galway and Limerick?

Mr. O’Connor

I do not know. However, Waterford would not be under as much development pressure as the other cities which are growing at a faster rate.

Deputy C. Lenihan

Obviously Mr. O'Connor has no role in relation to local authority decisions other than his own ones. Does he frequently meet the local authorities to help them to harmonise best practices and come up with a single decision making process?

Mr. O’Connor

No, that is not our function. We are a sort of independent quasi-judicial body which tries to make the best decision possible on individual appeals.

Deputy C. Lenihan

The same issue has arisen in relation to judges as well.

Mr. O’Connor

They would be more matters for the Department in terms of——

Deputy C. Lenihan

Can Mr. O'Connor not initiate something in that regard? He mentioned being quasi-judicial. There is variety in some of the decisions of judges which causes public unease. Surely as a public body, that would be of internal——

Mr. O’Connor

The board must be seen to be independent.

Deputy C. Lenihan

There may be a perception that it is possible to have a variation in decisions. The decision from An Bord Pleanála relating to a case in Cork may be totally different to a decision on a similar case in Carlow. Would the board not address that in its own independent way?

Mr. O’Connor

I would prefer to think it would be more a matter for the Department than the board. If the board is not seen to be entirely independent of the local process, its value as an independent appeal tribunal is reduced.

Chairman

I agree entirely with that. It is an independent board. If it starts to get involved with local authorities——

Deputy C. Lenihan

I am talking about the board harmonising its own decisions.

Mr. O’Connor

When the planning authorities get a decision from the board, they can read our file and understand what we did and why. It would be up to them to react to that.

Deputy C. Lenihan

What does the board do internally to harmonise its own decisions? It takes three people to make a decision, but there could be different groups of three at different times.

Mr. O’Connor

There are certain basic parameters within which we work, like the local development plan, national policy, planning guidance, etc. Every case is decided with the benefit of a professional planner's report. After that, it is a matter for the board members. The policy is to bring particularly contentious or large cases to a full board meeting. Ordinarily, the vast majority of cases are dealt with by a quorum of three board members. The question of consistency is a consideration and something of which I, as chairman, would be conscious at all times. I would be promoting a debate among board members about what is happening and trying to keep a dialogue going. As the board gets bigger - its membership is due to increase to 12 members - this will become more difficult. I would readily admitthat.

Deputy C. Lenihan

I am sorry for raising so many issues today. An Taisce has a reduced fee for appeals. It would be good to have some special reference to its appeals in the board's annual report.

Mr. O’Connor

We do. Our report actually spells out all the fees. I do not know what page it is on.

Deputy C. Lenihan

I am not referring to its fees, but to its alleged success rate.

Mr. O’Connor

I do not think it would be appropriate to single out any particular appellant or body and give figures for them. I think they have to be——

Deputy C. Lenihan

However, An Taisce is in a special position relative to other people.

Chairman

That point is not relevant to the board.

Deputy C. Lenihan

It is relevant to the public. If it is more successful than ordinary people, we should all go to it for our objections.

Chairman

Mr. O'Connor has been very generous with his time and the board's decisions are not a matter for the committee. I am anxious to call Deputy Ahern.

Deputy C. Lenihan

I have one question for An Taisce. Mr. Lumley might have a view on the siting of dumps in special areas of conservation or heritage areas. There is a bizarre case in Bohernabreena in my constituency. The county council proposes to locate a landfill dump in an area that——

Chairman

That is a matter for the Department of the Environment and Local Government.

Deputy C. Lenihan

I am asking the representatives of An Taisce.

Chairman

The representatives of An Taisce have given us a great deal of their time today.

Deputy C. Lenihan

They do not seem unwilling to answer.

Chairman

That may be so. However, we are digressing——

Deputy C. Lenihan

I was not the person who invited An Taisce to attend, Chairman.

Chairman

If this question is answered, it will simply lead to further questions.

Deputy C. Lenihan

I said this was my last question.

Chairman

It has nothing to do with the accounts.

Mr. Smith

I would be happy to speak to Deputy Lenihan.

Chairman

You may meet him afterwards.

Deputy C. Lenihan

I do not raise the issue of Limerick digressions that occur on this committee on a wholesale basis.

Chairman

There are not many Limerick digressions. The Chairman is very fair and gives much latitude to the Members.

Mr. Smith

I am afraid I have another engagement at 6.30. May I be excused to make a telephone call?

Chairman

Yes. Thank you for your time. We will be finishing shortly, but you may go.

Mr. Smith

Thank you for your courtesy.

Deputy M. Ahern

I will be quite brief, since much ground has already been covered. I refer to the employment of largely UK-based planners. The professional qualifications and ability of the people concerned are not being questioned, but is their approach, and the general practice in Britain, different from that of planners who have qualified and operated solely in Ireland? Is there an induction period?

Mr. O’Connor

Their approach is not different. The Irish planning system, under the 1963 planning Act, is based on that of the United Kingdom. There are some differences, but, in terms of the development plan, the two systems are very similar and the people concerned would find it very easy to switch over. I do not find their approach different - it is very similar and I have no concerns in that regard. There is an intensive induction and training period which they must all undergo. At the end of the day, it is the board which makes the decision. In about 10% or 11% of cases it overturns the inspector's recommendations.

Deputy M. Ahern

My only other question relates to appeals. I note that about 5% of cases were deemed invalid by reference to the fee - they did not pay the proper fee. In a recent case brought to my attention the individual concerned paid £100 instead of £120. He said he paid on the basis of the information received from the local authority and the Department of the Environment and Local Government. Apart from going to court, does he have any grounds for redress?

Mr. O’Connor

We are very restricted by the legal position in that regard. It is absolutely clear. This was brought forward in 1992 to tidy up matters and stop, for the want of a better word, certain messing in relation to appeals. The situation was made very rigid and the board has no discretion. If a submission is late or does not include the correct fee, it is not a valid appeal, the board is out of the picture and we cannot consider it.

Deputy M. Ahern

Could the person concerned reapply with the correct fee?

Mr. O’Connor

Yes, if it is within the time limit.

Deputy M. Ahern

If it is outside the time limit, tough luck.

Mr. O’Connor

On the other hand, a developer can make a new application and start the procedure again.

Deputy M. Ahern

I was interested in a matter raised by Deputy Conor Lenihan, but, unfortunately, he has left the meeting. I would have liked to find out where are those villages that are dying.

Chairman

My first point may be somewhat outside the remit of An Bord Pleanála. There was a considerable focus on County Kerry in today's discussion. Kerry County Council has a policy of using section 4 of the planning Act while in my county Limerick County Council does not. We, as public representatives, have often been approached by people from County Kerry with development proposals along the national primary route and always tell them - this applies to all political parties - we do not use section 4 and we have no problem with regard to planning. The same policy applies in many other counties. I make this point because the use of section 4 has led to many problems and difficulties.

On a matter pertinent to An Bórd Pleanála, when an inspector is investigating an appeal would he or she indicate to the person concerned before a final decision is made that everything looks okay?

Mr. O’Connor

No. The inspector should not communicate in any shape or form with any of the parties to an appeal at any stage.

Chairman

I know of a person who objected to the construction of a house which he regarded as backland development. He said he was very optimistic on the basis that he had been told everything should be all right and that his objection would be successful.

Mr. O’Connor

If an inspector engaged in that sort of communication with an applicant, he or she would be completely out of order.

Chairman

As far as you are concerned, nothing is said until a decision is made.

Mr. O’Connor

Nothing is said until a decision is made. The file is then open for everybody to see what the inspector and the board said and what was the final decision. If what the Deputy refers to happened, the inspector would be completely out of order.

Chairman

I asked the question in the interests of clarity.

Mr. O’Connor

Yes.

Chairman

Public representatives are sometimes approached by people who have appealed to An Bord Pleanála. In my experience, one is just informed that a decision has not yet been made and given an indication as to when it will be made. That is fine.

Mr. O’Connor

Even if an inspector were to comment, he or she could be seriously misleading the applicant as he or she does not make the decision.

Chairman

How is it profitable to have 47 planning inspectors on a fee basis for smaller contracts?

Mr. O’Connor

I do not wish to go into the level of fees in detail in public as it might be embarrassing to them. As I said, the fee is very competitive vis-à-vis the cost of handling appeals within the permanent structure of the board.

Chairman

Is anything being done on a national basis to ensure we reach a situation in which we will not need 47 planners from the United Kingdom?

Mr. O’Connor

Yes. A number of initiatives have been taken to increase the throughput at the planning school in UCD while there is a new planning course in Dublin Institute of Technology, Bolton Street. The normal level of throughput had been of the order of 20 planners per year, of which the present figure is a multiple, but it takes some time to catch up - it is a four year course.

Chairman

This seems to be a good time to conclude. Thank you for being so forthright in your comments. I know we digressed at times. I also thank Mr. Smith of An Taisce for attending. His contribution is entirely voluntary as his organisation does not come under the umbrella of public accounts. While he need not have answered some of the questions, he answered in a forthright manner. We respect that. If we did digress, it was because of our interest in the topic, which is very pertinent to our job as public representatives.

We note the accounts for the years 1994 to 2000, inclusive. This is the first time representatives of An Bord Pleanála have been before the Committee of Public Accounts. The Comptroller and Auditor General has said he is conducting his own separate investigation and we look forward to publication of his report. At that stage you may volunteer to come back to answer any questions arising from it.

The committee will now adjourn until 2 p.m. on Tuesday, 18 December 2001, at which meeting we will deal with the annual report of the Comptroller and Auditor General for the year 2000 on the Department of Health and Children. There will also probably be a discussion on the special report on nursing subvention. I wish everybody a happy Christmas.

The witnesses withdrew.

The Committee adjourned at 7 p.m. until 2 p.m. on Tuesday, 18 December 2001.