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COMMITTEE OF PUBLIC ACCOUNTS debate -
Thursday, 13 May 2021

2019 Financial Statements of An Bord Pleanála

Mr. Dave Walsh (Chairman, An Bord Pleanála) called and examined..

I welcome everyone to our online meeting. Due to the current situation regarding Covid-19, only the clerk, support staff and I are in the committee room. Members of the committee are attending remotely from within the precincts of Leinster House. This is due to the constitutional requirement that in order to participate in public meetings, members must be physically present within the confines of the place where the Parliament has chosen to sit, namely, Leinster House or the Convention Centre Dublin. I ask that committee members confirm their location before contributing to ensure they are adhering to this constitutional requirement.

The Comptroller and Auditor General, Mr. Seamus McCarthy, is a permanent witness to the committee and is attending remotely.

Today, we will examine the 2019 financial statements of An Bord Pleanála. Areas of interest to members, which An Bord Pleanála have been made aware of, include strategic housing developments, the judicial review process, the regular objection process and staffing levels at An Bord Pleanála. To assist us in our examination of the 2019 financial statements, we are joined remotely from outside the precincts of Leinster House by the following officials from An Bord Pleanála: Mr. Dave Walsh, chairperson, Mr. Gerard Egan, director of corporate affairs and Ms Anne Killian, finance officer. They are all very welcome.

When we begin to engage, I ask members and witnesses to mute themselves when not contributing in order that we do not pick up any background noise or feedback. As usual, I remind all those in attendance to ensure that their mobile phones are on silent mode or switched off.

Before I start, I wish to explain some limitations to parliamentary privilege and the practice of the Houses as regards reference witnesses may make to other persons in their evidence. The evidence of witnesses who are physically present or who give evidence from within the parliamentary precincts are protected pursuant to both the Constitution and statute by absolute privilege. However, today's witnesses are giving their evidence remotely, from a place outside of the parliamentary precincts and as such may not benefit from the same level of immunity from legal proceedings as does a witness physically present. Such witnesses have already been advised that they may think it appropriate to take legal advice on this matter.

Members are reminded of the provisions within Standing Order 218 that the committee shall 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 policies.

Members are also reminded of the long-standing parliamentary practice that they should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable.

To assist our broadcasting and debates services, I ask that members direct their questions to a specific witness. If the question has not been directed to a specific witness, I ask the witness to state his or her name the first time he or she contributes.

I now call on the Comptroller and Auditor General, Mr. Seamus McCarthy, for his opening statement.

Mr. Seamus McCarthy

Under the Planning and Development Acts, An Bord Pleanála is responsible for the determination of appeals of local authority planning decisions, and for the determination of direct planning applications for strategic housing and infrastructure development. The board also has responsibility for dealing with proposals for the compulsory acquisition of land by public authorities and with determining appeals under the Water Pollution and Building Control Acts.

The board's income in 2019 totalled €28 million. Just over €6 million, or 23%, was comprised of fee receipts. Grant funding issued from the Vote for housing, planning and local government amounted to €18.6 million in 2019. Expenditure on salaries and related costs amounted to €16.2 million, representing approximately two thirds of the board's expenditure in 2019. Expenditure on legal fees amounted to €3.4 million. The balance of expenditure of €5.4 million related to premises and other operating expenses. The surplus for the year was €2.8 million.

I certified the 2019 financial statements on 12 June 2020 and issued a clear audit opinion.

I thank Mr. McCarthy. Unfortunately, we are limited to two hours. We sent a detailed letter of invitation to An Bord Pleanála, so Mr. Walsh has five minutes for his opening statement, and I will give him a reminder after four minutes.

Mr. Dave Walsh

I thank the Chairman for the opportunity to appear before the committee to assist in the examination of An Bord Pleanála's financial statements for 2019 and to discuss the board's important work and its recent progress in delivering on our statutory mandate.

As the Chairman noted, I am joined by Mr. Gerard Egan, head of corporate affairs, and Ms Anne Killian, head of finance. We will endeavour to address all queries as best we can. With the indulgence of the committee, I may ask my colleagues to come in on some more technical matters as they are more familiar and have the detailed information to hand.

As the Chairman outlined, it is important to remind the committee that it is not appropriate to discuss individual planning cases, as to do so could compromise decisions and various judicial review cases before the courts. However, where we can discuss generalities of case types and broad issues emerging, we will aim to be as helpful as we can to the committee.

The board is well aware of its critical role in the planning system in considering, and determining, appeals and major housing and infrastructure proposals. We remain committed to delivering robust decisions as quickly and effectively as possible. We are also cognisant of our corporate governance responsibilities. I can confirm that the board considers itself in full compliance with all applicable provisions of the code of practice for the governance of State bodies.

We have developed and use a framework of assurances, including an audit and risk committee and internal audits, as well as undertaking regular updates at management committee and board levels of our risk and mitigation actions. As is required under the code of practice, I receive a report annually from the independent external chair of the audit and risk committee and the committee's most recent report has confirmed that our risk management processes and internal controls are operating effectively. As chairperson, I am also reassured of our financial and governance controls through the unqualified audit opinion of the Comptroller and Auditor General both for 2019 and for all previously audited years.

The committee will have noted from our annual accounts that in financial terms, the board had a total income of over €25 million in 2019, comprised, as Mr. McCarthy has said, of an Exchequer grant of €18.6 million and - there is a correction there - of fee revenue of just under €6.4 million. This represents an increase from 2018, when we received €17.5 million in Exchequer grants and took in just over €3 million in fee revenue.

To give a little background on the organisation, the board currently has 175.3 whole-time equivalent staff and nine board members. The Minister and the Department have been very supportive in approving recent resource requests in recognition of the increasing demands and complexity of the cases coming before the board, including in relation to strategic housing developments and major infrastructure projects. The board is currently engaging with the Department on an updated workforce plan for 2021-22 to meet its evolving needs and work demands.

The board's primary role is to make planning decisions in a timely and efficient manner in accordance with the legislative framework under which we operate and having regard to the overarching planning policy framework as determined by the Government and the Minister for Housing, Local Government and Heritage. While I appreciate that we are discussing the 2019 annual report and accounts, I would like to give the committee a more up-to-date picture of our casework levels using 2020 statistics.

The year 2020 was very challenging for the board, as it was for many organisations and for society generally, with major disruptions to normal life and work practices due to the Covid-19 pandemic. However, despite these disruptions, the board was able to remain open for business throughout the various lockdowns with planning designated as an essential service by the Government.

Moreover, with the co-operation and goodwill of board members, staff and the various active participants in the planning system, including the public, we were able to keep our public office open in a safe manner and were able to maintain a fairly high level of case output. We adapted our practices to enable some online services and virtual meetings, including the holding of remote oral hearings, and facilitated hybrid office-home working patterns for all staff to ensure that we fully adhered to all health and safety requirements to protect everyone.

While the total number of cases received and decided were down slightly on the 2019 totals, due in part to the eight-week planning timeline extensions in April and May, 76% of all planning appeal cases were decided within the statutory objective period, SOP. This is a significant achievement, considering the overall challenging operational environment in which the staff and board members were working, and represents a further improvement on the comparable 2019 figure of 69%, and well ahead of the 43% compliance rate recorded back in 2018.

Looking back on 2020, with nine of its months significantly impacted by Covid-19 related restrictions, and many of these effects continuing well into 2021, I am hugely proud of the commitment, resilience and efforts by our entire board and staff in keeping the show on the road through progressing and deciding cases. The challenge is now to maintain this level of compliance amidst the ongoing disruptions due to Covid restrictions, to further streamline our systems, as well as to adapt to more flexible working patterns and practices. Thus far this year, case activity in the first three months of 2021 has been fairly busy, with 781 new application and appeal cases lodged and 631 cases disposed, which suggests a similar caseload over the course of this year, as the economy recovers following the Covid-19 pandemic.

In relation to strategic housing developments, SHDs, the board has continued to prioritise these and we decided 126 such applications during 2020, all within the statutory timelines. Of these cases, 98 decisions were to grant permission, facilitating more than 25,400 residential units, three quarters of which were for apartments, as well as 2,300 student bed spaces and some 570 shared accommodation bed spaces. It is also important to note that the board refused 28 of the applications decided last year, evidence that the board continues to assess all applications against the principles of proper planning and sustainable development and refuses those that fail these criteria. The increasing numbers of pre-application consultations would suggest that 2021 will see a further increase in SHD applications between now and when the legislative scheme expires early next year.

Similarly, building on the 24 strategic infrastructure applications received in 2020 and the 19 cases decided, the trend in pre-applications in 2020 and so far this year would indicate more infrastructural projects being lodged with us in the near future.

Amidst all the Covid-related disruptions, the board was able to progress our major IT transformational project, Plean-IT, with the establishment of an in-house development team to drive forward further enhancements and functionality within the system. While the ultimate aim is to facilitate the online submission of applications and appeals, aligned with the planning authorities’ e-planning initiative, we were able to advance a number of important developments during 2020 and into 2021, such as the launch last November of our online facility enabling observations on strategic housing development applications and the design of a more user-friendly and informative website designed to make it easier for everyone to find the information that they are looking for and to provide useful guidance on how to lodge or comment on an strategic development application or planning appeals. The new website was launched last month and the board is pleased with the largely positive feedback in this initial phase. We expect further phased roll-out of online services this year and into 2022.

I am conscious that I am taking up members’ valuable time to raise specific issues so I will leave it there. We have provided some statistics and charts in the appendix to the opening statement and I am happy to take any questions.

Deputy Verona Murphy is the first speaker, she has 15 minutes, Deputy Dillon is next with ten minutes and everyone thereafter has five minutes. We are tight for time but we are also working online, so we will try to manage the proceedings as best we can.

I welcome Mr. Walsh, Mr. Egan and Ms Killian and thank them for coming before the committee and for the very detailed statement. As Mr. Walsh noted, we are very tight for time. The questions I may ask will be binary and probably will require "Yes" and "No" answers, in the interest of time.

I looked through the part of the annual report referring to strategic housing developments with an architect yesterday. Of the 4,334 houses encompassed in the residential unit delivery of 16,600, about 1,200 were semi-detached houses, possibly with a garden. The rest were terraced housing, just over 3,200. The densities being applied are resulting in family-unfriendly homes. As for the section on legal proceedings, I was in business for 30-odd years and when looking at overall costs, one looks at the highest costs to see what can be done about them. I was pretty overwhelmed when I saw the figure for legal fees of almost €3.5 million. It is extraordinary. It accounts for 17% of the contribution from the Exchequer of just over €18 million. It is the biggest expense after salaries. I also note that €1.78 million of that was paid out in third-party settlements. I find that unbelievable. Would Mr. Walsh accept that clearly, there is something terribly wrong with that?

Mr. Dave Walsh

No, the trends in 2019 reflect generally the openness of the system we have and the access people have through public participation and the Aarhus directive to challenge any decision by any decision-making body.

Okay, I thank Mr. Walsh. Looking at the breakdown and the detailed report supplied, 35 cases were taken of which 11 were dismissed. Of the 24 cases that went ahead, An Bord Pleanála lost 70% of them. Seven were uncontested because there was a defect in the decision. Why is the case rate so high?

Mr. Dave Walsh

You have to reflect the fact that the board makes between 2,800 and 3,000 cases a year, so the number of judicial reviews -----

No, the question I asked was why did An Bord Pleanála lose at such a high rate?

Mr. Dave Walsh

It is a matter for the courts to determine whether the decision that the board took is valid and is robust. In some cases, it can be down to omissions or interpretation of EU and national law. The Deputy drew attention to the fact that cases were lost or conceded. In some cases, the board acknowledges that if there is a deficit in how we have made decisions, rather than waste any Exchequer funding or court time, it may be more expedient for us to concede a case at the earliest stage to enable us to get the case.

It would be quite worrying if the board only had to defend some of the eight cases at €3.5 million, in other words, it could have doubled had the board not taken that decision.

What exactly has Mr. Walsh, as the captain of the ship, put in place to prevent this? As I look at it, I am beginning to see it as the Titanic. I really hope that something has been put in place to prevent this.

Mr. Dave Walsh

With every case that is won or lost, we get feedback and a report from our legal team to identify what were the issues on which we won or on which the court found against the board. We have amended our procedures. We have advice notes to both the inspector and to the board that address issues such as appropriate assessment and ensuring that not only the assessment is correct but also the documentation that supports the board's analysis and its decisions are fully explained. Sometimes it does come down to a court asking where are the justifications, reasons and considerations that led to the board making a particular decision, so-----

In effect, it comes down to the law. The court deals with law, as opposed to policy.

Mr. Dave Walsh

That is correct.

That is encouraging to hear. Mr. Walsh said that, in 2020, the board had fewer cases, primarily because of the onset of Covid-19. We hope, therefore, there will be lower litigation fees and legal expenses. What were those costs for 2020?

Mr. Dave Walsh

The number of cases dropped by approximately 2,000 in terms of decisions. The actual number of legal cases lodged with the board increased from 55 to 83 in 2020. Those are cases that are open, rather than cases that are decided.

We have lost the connection with the Deputy.

I apologise, my signal dropped for a second. I asked Mr. Walsh what was the decrease in legal fees for 2020, compared with the €3.5 million for 2019.

Mr. Dave Walsh

I am not sure whether the Deputy heard my answer to the effect that the numbers of cases lodged increased from 55 to 83. Mr. Egan has the breakdown of the legal costs that were incurred in 2020 compared with those incurred in 2019.

Mr. Gerard Egan

Going into 2020, the total legal costs in the board's draft financial statements, which have yet to be audited and are, therefore, provisional, are €8.2 million. That figure represents a significant increase over the 2019 figures, rather than a decrease.

I thank Mr. Egan. The 2020 total is €8.2 million. That is an extraordinary, if not scandalous, figure. I asked Mr. Walsh what structure he had put in place to ensure the board is learning from a process that was spending €3.5 million of the taxpayers' money and, instead, whatever structure he has put in place is not working. That figure of €8.2 million is nothing short of scandalous.

Mr. Walsh also stated that the board's productivity increased. In fact, I will not call it "productivity", but the board has not dealt with as many cases in 2020 . At the same time, legal fees have increased by more than 50% of the total from the preceding year. Will Mr. Walsh explain that to me?

Mr. Dave Walsh

Yes, of course. There has been an increase in legal cases laid before the board, many of which relate to strategic housing development.

Before Mr. Walsh continues, I remind him that he told me that in 2019, he got a detailed report of all court cases. I have read cases and have been into this for two years now. Would it be fair to say that many decisions have been made by the courts because there has been unlawful applications by An Bord Pleanála in relation to density guidelines and material contraventions?

Mr. Dave Walsh

I do not think "lawful" is the right word. If the judgment-----

Excuse me, Mr. Walsh. Just so we understand each other, judges deal with law and if they make a decision overturning an An Bord Pleanála decision, it means the decision of the board was unlawful.

Mr. Dave Walsh

I was going to say that the board acts lawfully and if the courts ultimately decide that our decisions were unlawful, for a number of reasons, that is not necessarily in the context of density or height. There can be a range of issues. Many of the cases relate to environmental impact assessments or appropriate assessment and protections. Sometimes, it is a case of deficits in the board's explanations, rather than its determination of the decision.

What exactly is the structure? There must be minutes of meetings that explain how these decisions are made. Are they analysed in respect of the court cases? Where are the minutes for the meetings at which decisions are made?

Mr. Dave Walsh

As the Deputy knows from her research, the board produces both the inspector's report and a detailed direction and order from the board that outlines-----

My question was about when the board makes the decision. When the board has the inspector's report and it is sitting to make a decision or give a direction on planning, where are the minutes of those meetings? Are they recorded?

Mr. Dave Walsh

Summary minutes are produced are produced through our Plean-IT system. They outline the attendees, the decision, the considerations and any associated comments. We do not provide records of detailed discussions which can, in many cases, take many hours.

I want to get this right. An Bord Pleanála has a dominant position in the whole of the planning policy arrangement and decision-making process and Mr. Walsh is telling me that it does not provide minutes to provide for a fully transparent process. On a two-year basis, it is costing the taxpayer in excess of €12 million. It is a serious thing for somebody to take judicial review proceedings in the first instance. There is jeopardy and I am sure nobody takes such an action lightly. However, it is inequitable for Joe Public to have to take a case of judicial review, having paid his tax to fund An Bord Pleanála. When he is successful in his judicial review, he is then paid back with money he has contributed to the State. That does not sound right, does it?

Mr. Dave Walsh

I think the issue that-----

Does that sound like it is equitable for the taxpayer? That is what the Committee of Public Accounts is about.

Mr. Dave Walsh

The board makes every decision with the intention of having robust, evidence-based decisions-----

Clearly it does but, equally clearly, to the tune of €12 million, we have court decisions that state board decisions are unlawful. A court deals with law and those decisions cannot mean anything else. When a court overturns or quashes decisions of the board, there is something wrong. Has Mr. Walsh identified the problem?

Mr. Dave Walsh

We are constantly learning and evolving our processes and documentation. The Deputy has talked about the number of cases that have been lodged and the cases that have been ruled by the courts to have been invalid in terms of decisions. There are 2,600 or 2,700 cases every year that the board does proceed-----

Mr. Walsh told us a few minutes ago that after 2019, when we realised legal fees were €3.5 million, fewer cases were dealt with through the process in 2020. At the same time, the board managed to increase legal fees by in excess of 50%. That is almost 50% of what the taxpayer contributes. In 2021, will we be looking at another increased figure? The scandal is getting bigger. I have not got an answer from Mr. Walsh as to what structure has been put in place to stop this from happening.

Mr. Dave Walsh

It is all about how the board learns from every decision that we make but also that-----

Mr. Walsh, in his opening statement, said he had 30 years' experience. That is what I have read about him. He has been in the highest positions. He is the captain of the ship.

Mr. Dave Walsh

Of course.

The Deputy should give the witness an opportunity to answer.

Does Mr. Walsh take responsibility for this?

Mr. Dave Walsh

Of course I do. I take responsibility for the organisation's performance and achievements as much as managing the issues on which we can improve. I think-----

At what stage will Mr. Walsh be improving upon them? How much of the taxpayers' money will it take? Is the board not comprised of the most experienced people in respect of planning in the country?

I ask Mr. Walsh to give a brief answer.

Mr. Dave Walsh

That is our role, as set down by the Oireachtas. I would not say we are the most senior. We are certainly the last port of call when it comes to making decisions.

Who would Mr. Walsh say is more senior?

Mr. Dave Walsh

In terms of setting policy, the Department certainly is. Each chief executive has their own responsibilities.

I have to say-----

We have gone over time.

Am I over time? I will make one last, brief comment. I will be coming back in. In fairness to the Judiciary and the commentary it has given about our planning policy, ministerial guidelines and their application, there certainly are questions to be answered.

I call Deputy Dillon.

I would say that we will be coming back to that issue.

I welcome the witnesses. I have a short time so I will jump straight in. First, I wish to discuss the strategic housing development fees. Fees for the SHDs are set by the board with the Minister's approval. These are published on the board's website and fees can vary very widely between developments. They are based on the number of units per se. Will the witnesses briefly outline the fee-setting process in place in the organisation?

Mr. Dave Walsh

Section 144 of the Planning and Development Act 2000 enables the board to set fees for various case types of planning, but with the approval of the Minister at the time. In the context of fees the Deputy has researched on our website, there are general fees that date back to 2011 and there is the setting of new fees in respect of new functions that we have created or that have been imposed on us, such as the vacant site levy and SHDs. Every three years the board is required to undertake a review of fees in the context of the consumer price index. In addition, strategically on a periodic basis, the board reviews the entire fee structure and considers whether proposed recommendations to be made to the Minister should be considered. The last time that was done was in October 2020 and we are currently engaging with the Department and the Minister on our proposed amendments.

What changes did the board make in October 2020?

Mr. Dave Walsh

There were no substantive changes to some of the larger projects and we are not proposing any changes. Obviously, none of them have come into effect because we have not finalised the engagement with the Department yet. There were no changes proposed relating to third party fees and first party appeals. Some small tweaks were proposed in the context of trying to ensure alignment between the various types, particularly with regard to first party appeals for Natura impact statements or where environmental impact assessment reports, EIARs, are required, and in dealing with issues relating to retention. There were also a number of fees for new functions, for example, the Dublin Airport noise function which came into effect in 2020. We had to set fees. However, these are all provisional. They have not come into effect pending further discussions and the approval of the Minister.

What is the board's position in determining the scale of the fee, be it cost recovery, fixed rates and so forth? Are there plans any time soon, or can Mr. Walsh give us an estimate, in terms of any updates to these fees in the near future, especially relating to the strategic housing developments?

Mr. Dave Walsh

I probably should have mentioned that there are only two areas where the board is able to get full cost recovery in respect of applications. One is strategic infrastructure, where the upfront fees are paid but the board calculates its own processing and decision costs and it either seeks further funds or, in many cases, it recoups some of the initial fee back to the applicant. It is a similar arrangement with regard to SHD. At this stage, given that there is a firm commitment in the programme for Government that the SHD process is due to lapse or expire in early 2022, it is unlikely that we would be reviewing or proposing any amendments to the SHD fees process between now and when that system goes away.

In the 2019 reports by the Comptroller and Auditor General, have any SHDs been approved by An Bord Pleanála and the decision overturned by judicial review? Has the board still got paid for its consideration of the matter?

Mr. Dave Walsh

The fee for processing is separate from any judicial review. As set down in the legislation, the board will incur and recoup the cost that it has spent in dealing with it. In many instances, where applications are perhaps overturned or the court rules on it, most of those cases are remitted back to the board. In those cases, the process is that the case is up for reconsideration to address the issues.

With regard to the board's debt recovery process, how often do bad debts arise? What is the board's current debtors-days ratio in terms of its collection?

Mr. Dave Walsh

I will refer that question to Mr. Egan because he has the figures to hand that relate to cost recovery.

Mr. Gerard Egan

There is very little bad debt in respect of cost recovery for strategic infrastructure applications. Effectively, the costs would be any costs that are occasioned to the board for processing the case beyond the application fee that has already been paid and any observer fees that come in from the public. In that context, we do not have an issue with debt recovery for strategic infrastructure applications where we have expended more than the application fee that has been paid. On the very rare occasion, we would institute the normal debt recovery procedures that my colleague, Ms Killian, would implement in that respect. It is not a significant factor in financial terms as far as we are concerned.

I thank the witnesses. I will move on to the Plean-IT project and consultancy costs on page 49. What is the current position with this Plean-IT system that was originally planned for implementation in 2020?

Mr. Dave Walsh

The Plean-IT system is basically the major transformation of our entire IT system. We have replaced a very outdated and non-digitised system with a new case management system that has been operational since October 2017. The original Plean-IT project which, was conceived in 2014 and procured in terms of consultants in 2015, was designed as a four-year project but the additional functions provided to the board relating to vacant sites, strategic housing and other elements required extensive additional work to be done on what was originally the prime system. We are now in phase 2. Of the three elements that were identified as the priority deliverables under the project, we have a case management system that is working and functioning. We have been blessed that the system has been stable and operational during the Covid-19 pandemic because all our staff have been able to connect in from home when they are remote working and maintaining it.

On the value-for-money aspect with regard to the original budget expenditure versus the current expenditure to date, how has the system performed in respect of the additional issues the board has undertaken and the additional consultancy costs, especially in the 2019 accounts which amounted to over €700,000? Can Mr. Walsh give a justification or an indication of why that was the case?

Mr. Dave Walsh

Sure. The Deputy is right. For any IT system one brings in, particularly for an organisation that is not IT focused, it is crucial to have the right expertise to draw on, not just from the developers of the product but also to advise us and to ensure that we adapt our practical pragmatic system into something that will work and be functional for us.

It seems that the consultants are the big winners here in the implementation when they keep charging huge costs and fees. Why is that?

Mr. Dave Walsh

In terms of the consultants, and Ms Killian can perhaps go into more detail about the numbers, we are not talking about an external firm, but about people who are based in here who are business managers and testers. These are the experts. We did not have development capacity in the organisation so we had to ensure that we knew people who understood how to require, draft and test a system.

When this system is up and running in its entirety, who will maintain the database and software? Will that be fully procured? Are there service level agreements in place? What budget will be allocated to this annually?

Mr. Dave Walsh

Since 2019 and the last time I appeared before the committee, we have concluded phase 1, the development piece. I will explain.

In 2019, very little development work was done because the system was operating. We were maintaining and managing it, rather than doing major development work. That is why the imbalance may be between the development and the consultancy fees.

In 2020, we altered track in that we did not procure an external firm to continue the design but brought it in-house. We procured, through the Office of Government Procurement, OGP, frameworks, four in-house developers who are currently working with our staff and teams to further design and refine the system to build in better business process improvements and make it more efficient, not only for ourselves but also for the users. Ultimately, when this phase is done towards the end of 2022, we will have upskilled a number of our staff to take over the programme management, business analysis and testing. Our ultimate aim is to be as self-sufficient as we can and to maintain and adapt the system into the future.

I confirm that I am in the convention centre, on the precincts of the campus. I will declare my hand early. While the Committee of Public Accounts does not deal with policy, my intention in my line of questioning is to demonstrate that the SHD process was a poor policy decision. I believe that to be the case from a housing perspective, in terms of how it has provided housing, but my question relates to its value for money and the costs associated with it. It appears the SHD process has increased the level of legal activity in the planning process. Where, previously, people would take action at the local authority level before proceeding to An Bord Pleanála and, possibly, a legal process, we seem to have pushed all the activity into an SHD with An Bord Pleanála and then into legal fees. Will Mr. Walsh compare the number of cases prior to SHDs being introduced with the number taken now and the legal costs associated with both?

Mr. Dave Walsh

Certainly, with the single-track process of the SHD, while there is extensive participation in the process, both council and public, as the Deputy identified, the main difference is that people do not have an opportunity, at local or appeal stage, to raise their concerns. In many cases, the judicial review process could be seen to be the normal appeal process where an SHD has been granted. In the context of the overall numbers since the SHD process was commissioned and began in 2017, the board has made around 280 decisions and I think about 54 of those have been judicially reviewed. About one sixth of the decisions taken, therefore, have been challenged in the courts. While I acknowledge the Deputy's comments regarding the policy, the board is tasked, through the legislation, with dealing with these cases directly. Before SHD arrived, major appeals for housing developments would come to us and some of those would be challenged in the courts-----

Would they have been of the order of one sixth?

Mr. Dave Walsh

No, not at all. In fact-----

It is fair to say the introduction of the SHD process has resulted in increased legal action in the planning system.

Mr. Dave Walsh

Yes, the Deputy is correct. I think that is the case when anything new is brought in. When strategic infrastructure was introduced in 2007 to allow for large-scale applications directly to the board, there was a significant increase in the number of challenges being taken on wind farms and major industrial developments. Part of that is because it is new legislation that sometimes needs to be tested in the courts and people also feel that this is the way in which they can challenge decisions. Certainly, in the context of pre-SHD, a lot more of the cases were spread around the different types of planning appeals, from the larger-scale industrial ones to those on a smaller scale. SHD certainly accounts for a significant number.

I apologise for having interrupted Mr. Walsh but I am short on time. I appreciate his confirming that and that it is a newly-introduced process but I welcome the Government's decision not to extend it. What will happen to the infrastructure constructed during these accounting periods? How will it be redeployed once SHDs are not renewed?

Mr. Dave Walsh

We have other functions that are expected to be coming into us in the context of the new marine spatial planning Bill, which is moving its way through the Oireachtas process. There obviously still will be appeals more generally in respect not just of housing but of a whole raft of issues, as is the wont, the requirements and the democratic right of everybody to challenge and examine those cases. We have had to divert a great deal of resources from our existing day-to-day work to ensure we meet the SHD requirements. The ability for us to redeploy some of those people where there might not be the same level of housing appeals will enable us to address and improve our performance in respect of many of the other cases that come before us and to try to get decisions out as quickly as possible.

The board is not making provision for any continuation of the SHD process post February next year.

Mr. Dave Walsh

There will be no direct applications. That is certainly the intention, with a clear message from the Government, but some of those cases may well come into us as normal appeals, as with sub-100-unit housing. We have to make sure we have the skills to deal with those when they come into us.

To pick up on that point, I recall, when the legislation was going through the Houses, asking where the appeals process was and being told it was the courts. Are we surprised, therefore, that we are spending a lot of money on judicial reviews when people believe there is no appeals process other than to the courts? There is a financial cost to this but it was always envisaged that it would be the appeals process. The judicial reviews are not on the principle of the decision but rather on some technical flaw. As Mr. Walsh stated, it is in regard to issues such as environmental law that we see the appeals.

I have seen much disquiet in my area in regard to strategic housing developments because people engage in the local or county development plan process, there is an expectation and then it deviates considerably, in both the type of development and the matching facilities and services that should go with developments but are not part of the strategic housing process. What was the board's staffing in advance of the introduction of the strategic housing process and how did it change? To what extent was it scaled up?

Mr. Dave Walsh

More generally, in 2017 we had 156 whole-time equivalents in the organisation, while as of the end of 2020, it was 175. When we created the strategic housing unit to manage the inflow, we originally envisaged that six inspectors would be required to be dedicated to dealing with pre-applications and the applications as they came in. Very quickly, with the volume increasing from 39 cases in 2017 to 80 in 2019, and with 126 decided in 2020, we had to devote far more resources. We currently have 13 full-time inspectors devoted to dealing with both the pre-application process and the full assessment of applications.

On occasion, we have had to divert further people into that team because we are working within a very clear and limited timeline of 16-week decision-making or a 24-week timeline when there are oral hearings.

Mr. Dave Walsh

There has been a substantial increase, and administratively as well.

Obviously a judicial review is not done on the principle of a development. It is taken on a technical defect in the process. Has An Bord Pleanála categorised the primary reason for losing the various cases it has lost and, if so, what have those reasons been?

Mr. Dave Walsh

Each case is slightly different. There might be some commonality, whether on environmental issues or issues regarding detail and analysis-----

Mr. Walsh is not coming across clearly.

Mr. Dave Walsh

Can I be heard now?

Mr. Dave Walsh

Each case is different but general themes include environmental issues, such as consideration of the environmental impacts of some of the development. They often involve issues regarding the level of detail provided in the inspector's analysis or in the board's reasons and considerations, whereby a court would ask how the board came to a decision. It is something that as we have dealt with judicial reviews we have looked at articulating more clearly in order that people can see the rationale behind the board's decision to grant or refuse. Each case tends to be quite different.

In a judicial review case where the court finds in favour of An Bord Pleanála, what happens to costs?

Mr. Dave Walsh

Mr. Egan will have some of the figures to hand. Depending on whether the case is taken on environmental grounds, section 50B of the Planning and Development Act 2000 protects individuals from being liable for costs where they might lose a case. In most cases, if the board wins we may be able to recoup some of the costs but the amount is relatively low. Mr. Egan had some figures to hand.

Mr. Gerard Egan

With regard to the recovery of costs, the figures are in the accounts for 2019 and 2020. Our recovery of costs is quite low. This is because the board is rarely awarded its costs in legal cases in which it successfully defends the legality of its decision. This is down to the Aarhus Convention on public participation whereby in environmental matters, the public is entitled to have access to justice.

We are going over time.

Mr. Gerard Egan

In these cases, we do not recover our costs. When we win a case we have to pay our own legal costs.

The Aarhus Convention requires that people are allowed to have an input into environmental legislation. Would An Bord Pleanála conclude there is a flaw in the SHD process with regard to cutting people out? Is this a conclusion An Bord Pleanála could make with regard to its experience with engaging with the courts?

A brief answer.

Mr. Dave Walsh

To be honest, there are a number of opportunities. The SHD process was designed to bring in council views and those of members of the public. Certainly in the assessment of applications we give full account to the reports of the council and the chief executive as to every observation and comment received. Certainly from our perspective we do not see it as a deficit but there is a perception that people would like to have two bites of the cherry.

I want to touch on data centres, if I may. We know they are a vital piece of modern global infrastructure but it seems to many that Ireland is becoming a hub for these and it is unwelcome. When we take into account they take up vast tracts of land and use large amounts of water and electricity and contribute to our emissions count, they are not often seen as contributing much to the community or seen as something that is welcome. The Irish Examiner reported in November 2020 there were 66 data centres in Ireland and EirGrid had estimated their energy consumption was less than 2% of total electricity demand. EirGrid has also projected this will increase to 29% by 2028. Does An Bord Pleanála have a position on this, given the ongoing debate about the climate Bill and the climate action plan? It is hardly sustainable.

Mr. Dave Walsh

At present, data centres are not strategic infrastructure. The Act was amended to include them on the Schedule but that has not been commenced, so all applications that come into us are appeals from the local authority on whether to grant or refuse. Given the scale of them, most of the applications are accompanied by an environmental impact assessment report that details a range of issues from traffic to energy to water to biodiversity impact. In the context of assessing each application against proper planning and sustainable development, we also look at national policy as set out in the national planning framework and the sectoral policies of various Departments. We also look at city and county plans. On each site and application we have to assess the relative impacts and come to what is the best decision with regard to proper planning and sustainable development. Again, there is a range of considerations but I am not sure whether this addresses the Deputy's questions. We have to look at all of the elements, including the energy and climate impacts, in determining whether to uphold the appeal.

Does An Bord Pleanála accept we have approximately 66 data centres at present but there are more than 100 if we include those under construction. Is this correct?

Mr. Dave Walsh

To be honest, the board does not have general figures. The board's decisions are on permission. We do not follow up on commencements or delivery. They are matters for the relevant agencies. Perhaps EirGrid might have a better idea with regard to the connection. There is policy that supports them. There are also policies whereby we have to weigh up climate versus economic development versus digitisation and so on. These are all the considerations that the local authority in the first instance and the board must consider. Sometimes there can be site-specific issues about proximity to water courses or to individual houses and communities. Their location and impact, as well as their overall construction and operation, are factors in the board's decisions.

EirGrid had estimated their energy consumption is less than 2% of total electricity demand but it has also projected this will increase to 29% by 2028. Would this not be a concern for An Bord Pleanála?

Mr. Dave Walsh

In many applications there is pre-consultation with EirGrid. The board has engagement and an understanding of whether there are capacity issues locally or in the wider grid. It is another consideration.

To give an example, planning permission was given for a data centre in Drogheda in 2020 but there are reports-----

I must warn the Deputy not to deal with specific cases.

No, I am using it as an example.

Has the case been decided?

Yes, permission has been granted. It is in an IDA Ireland industrial park given its size but there are now reports that two further data centres are planned. When we take into account the electricity and land being taken up, the excessive amount of water being used and damn all by the way of climate opportunities and jobs-----

The Deputy's time is up.

Does An Bord Pleanála take into account the cumulative environmental impact of data centres in general or are they looked at individually?

Mr. Dave Walsh

Looking at the cumulative impact is a huge consideration, particularly where there are environmental impact assessment, EIA, requirements. The assessment of the cumulative impact relates not just to the impact of data centres in the immediate area but to other effects, whether they are industrial, residential or environmental. We only decide on what is before us. If, for example, an application is submitted to Louth County Council and ultimately comes to us, we will look at it afresh in the context of the cumulative impact and whether the environment and the general area - in respect of traffic or whatever it might be - can actually accommodate it or not. Certainly, the cumulative impact is a major consideration.

I thank our guests for their presentations. I would like check the statistics in relation to the strategic housing planning permissions that were granted. In respect of the decisions made on planning permission applications, permission was granted in 68 cases. Under those 68 decisions, permissions were granted for over 16,000 residential units and over 5,000 student bed spaces. Does the board monitor what occurs after a decision is made with regard to progress? They are most important decisions. Does it monitor what progress has been made since decisions were given?

Mr. Dave Walsh

In short, no. The board's role is finished when we make our decision. It then is a matter for the local authority where the development is situated in relation to applications for any commencement notices or indeed construction phases. Therefore, the board does not have any role in the context of trying to assess how many of those move on to site or are completed.

It is the board that grants the planning permission. I know that the commencement notice has to be served on the local authority. Is there any process whereby the commencement notice is also being served on An Bord Pleanála?

Mr. Dave Walsh

In short, no. I know that when the Department was in before the committee previously, when we were last here, the issue of tracking commencements more generally across housing came up. However, it is not a role that the board has, and we have no function. The assessment of the efficacy of the process is really a local authority matter or perhaps a more general policy matter.

On the issue of appeals from local authorities, the annual report states that in 2019, 29,117 decisions were made by local authorities, of which 2,076 were appealed to An Bord Pleanála, equating to a percentage of 5.6%. My figures differ from that because 5.6%, which is 2,076 appeals, would add up to 36,000 applications to local authorities. I am not sure how the 5.6% figure was arrived at. In relation to the appeals, I note that while the average appeal rate across the country is 5.6%, in the Dublin, Dún Laoghaire-Rathdown, Fingal and Galway authority areas, the figure varied from 13.4% to 11.2%, with the latter being the appeal rate for Galway County Council. Is there any specific reason why the appeal rates in those areas are far above the national average? That means that if the national average appeal rate was 5.6%, then the appeal rate from other local authority areas are less than that. Is there any particular reason why the appeal rate was so high for those four areas?

Mr. Dave Walsh

The board does not analyse or try to work through why the numbers are high. That might be a matter for the councils themselves to consider and address. We provide the detail through our annual statistics. I would say that looking at the numbers over 10% in those four locations, we would expect to see developments in a built-up area, whether they are housing or other types of development, and indeed, where there are higher populations and greater concentrations, there may well be more appeals.

The figures are higher for those local authority areas compared to others and there are other substantial local authority areas like Cork, Waterford and Limerick. To reduce the workload of An Bord Pleanála, should it not be identified why its workload has increased because of decisions taken by these four local authorities, in particular?

Mr. Dave Walsh

If our job was reduced and we had fewer cases to decide, it certainly would be welcome from our perspective. These are matters that Dún Laoghaire-Rathdown, Fingal and the other councils really should be looking at.

Does Mr. Walsh have figures on the percentage of decisions that have been appealed where An Bord Pleanála has upheld the appeal, in other words, has ruled that the appeal was valid? Is there a breakdown of those figures?

Mr. Dave Walsh

On page 83 of our annual report we set out, on a county-by-county basis, the number of cases in which the planning authority's decision was confirmed or varied, which would be where the board might keep it and then refuse something.

Is there a higher success rate on appeals for those four areas compared to other local authority areas?

Mr. Dave Walsh

No. In fact, if anything, the figures show that some of the higher rates where decisions by the local authority are overturned are spread around the country, both in an urban and a rural context. The statistics are there. It is useful for the local authorities themselves to understand the context in which those decisions are taken and how they were taken in the first place.

I thank our guests for being here. My own experience with the planning process is from being a local authority member for quite some time. It happened from time to time, albeit rarely, that the county councillors, through whatever mechanisms, would vote to overturn recommendations from planners. That was considered to be an incredibly serious matter. The process for that involved councillors meeting in public session and the rationale in terms of the proposition to take a different course than recommended being clearly outlined. The positions of each councillor would be then minuted and the votes identified in the minutes. It would be extensively reported in local media. There is a very good chance there would be a "Prime Time" special broadcast and everyone would know the positions and rationales of the local authority members. At the end of the day, local communities could pass judgment on those who had made the decision.

I want to use that example as a comparison to get a full understanding of how An Bord Pleanála operates. My understanding is that there are nine members of the board. Is that correct?

Mr. Dave Walsh

Correct, yes.

I understand that they can meet in teams of three to make decisions, and sometimes two representatives can meet for this purpose.

Mr. Dave Walsh

Three members are required to form a general quorum to make decisions. Obviously, there are some cases for which we could increase that requirement to a full available board. For smaller-scale applications and for the sake of expediency, two persons can form a quorum. This was the case, for example, when we received high levels of appeals in the late 2000s.

It is important to state that these small-scale applications could affect people's personal futures in terms of where they live. Therefore, these applications can be most important at a local level.

So, the board will meet and members will have the application documents and also will be furnished with the inspector's report. Is that the way such a meeting would operate?

We seem to have lost contact with Mr. Walsh.

Can the clock be stopped, please?

The clock is stopped.

Mr. Walsh has reconnected.

Mr. Dave Walsh

Apologies.

I will go back to the question I asked. The process is that two or three members of the board will sit. They will have the application documents and the inspector's report that will include the recommendation. Is that correct?

Mr. Dave Walsh

Yes.

They are authorised, if they so decide, to take a different course of action than the inspector's recommendation. Therefore, an inspector can recommend an approval with condition or a refusal but the board can effectively decide the opposite. Is that correct?

Mr. Dave Walsh

Yes. The remit of the board is to take on the recommendation but to make its decision as a collective.

In that instance, are the members of the board who are present noted and minuted publicly?

Mr. Dave Walsh

Yes. There is a summary of who attended and the cases that were discussed. If there is a split in the vote or a divergence of views, that is recorded on the summary notes.

It is clearly recorded which members took which position.

Mr. Dave Walsh

No, just the numbers. We do not ascribe a view so it would be two to one, or five to four, or whatever it might be.

Okay. That is the point I was coming to. If three members happen to be in attendance to decide to grant where the recommendation was to refuse, or to refuse where the recommendation was to grant, it is not clearly outlined which two voted one way or another.

Mr. Dave Walsh

No, because the board makes a decision as a collective. In fact, the point of having a board of three people is that the tribunal comes to a single decision. We record where there is divergence and, indeed, where the inspector's recommendation is not taken up, the board has to provide evidence and give reasons it did not accept the inspector's recommendation. Again, there is a clarity and justification as to why we diverge from the recommendations.

How extensive would that rationale and explanation need to be, considering the board could be dealing with a very extensive inspector's report, in order to outline the reason for its recommendation? In comparison, how detailed would the minutes be outlining the rationale for taking a different course?

Mr. Dave Walsh

It is in the board direction that sets out the justification or the rationale for not accepting the inspector's recommendation. Sometimes, it could be on the entirety of the issue and sometimes it could be on a particular condition or element of it. Obviously, the inspector's report will have a detailed recommendation with conditions or a rationale for that. The board generally addresses those in its justification on the direction.

The board can, if it so wishes, contravene county development plans.

Mr. Dave Walsh

Again, it can do it in certain circumstances. Certainly, in the context of SHDs, there is direct provision where the issue of a contravention has not been identified in the earlier processes, although the board sometimes has restrictions around that. Again, it depends on the type of case. Obviously, the decision as to whether something is not just a contravention-----

The time is up.

I will finish on this. Does Mr. Walsh consider the notion of not outlining which members take which position in these matters to be a difficulty in terms of accountability and transparency, when we consider the level of judicial reviews that have been taken and where the board's decision has been overturned? Would it not be prudent for the public to know who is making the decisions that are subsequently being overturned by the Judiciary at huge cost to the Irish taxpayer?

Mr. Dave Walsh

We are implementing the legislative provisions that are set down in the planning Act. The board makes a collective decision and I do not think it would be appropriate to ascribe different views and individual views. The board has to come to a collective view and that is how it is prescribed in the planning law.

I call Deputy Devlin.

I confirm I am in the convention centre. I thank Mr. Walsh and his colleagues for their attendance. Mr. Walsh mentioned the board's investments in ICT and I note the new website, which is very welcome. However, there are still some teething issues which I want to raise directly, particularly around the SHDs, for as long as they are with us. The issue is the cost of that particular project. To me, it would seem a little late, particularly around the SHDs. I know there are other rationales for having a new website, but the SHDs were brought in back in 2017 yet we only have a new website now in 2021. Will Mr. Walsh outline how much that project cost, when it started and for how long it has been ongoing?

Mr. Dave Walsh

To clarify, is that the website itself or its portion of the overall plan?

I know the board brought in other changes internally but, for the end-user, it was mainly the website. Mr. Walsh might clarify the cost of the website and how long that has been in train.

Mr. Dave Walsh

Ms Killian will have the figures to hand. We started work in late 2019 in the context of user experience and user interface research to work out what was actually needed. During 2020, the focus was very much redirected onto managing Covid so, over the course of 12 to 15 months, we have been working on and off on the website. It is not just in regard to SHDs and there is a range of other functions. It is obviously the first step in a broader function around being able to access more documentation online and, ultimately, having a portal into the system. It is future-proofed for that element. I understand Ms Killian has the numbers.

Ms Anne Killian

I will give a few figures on Plean-IT. I go back to when Plean-IT started, which was way back in 2014. At that stage, it was a proposed cost for five years of just under €3 million, or €2.934 million. That was broken down into consultancy work for scoping. In the first year, I understand there were some delays due to the tender process and in order to get the correct people, and then the project was up and running. In 2014, the spend was quite low and, again, the spend was quite low in 2015. It was mainly what we would call consumables in that we were assessing what we needed. We capitalise what we build, so it would be later on in the project that there would be more capital spend. It moved into 2016, where the spend was €572,000. In 2017, there was a larger capital build because that is when the Plean-IT system was being fully geared up to go live, and it went live in October 2017. We then moved on to 2018. The capital cost dipped at that stage and we moved to rolling it out, getting it functional and getting more functions involved, such as bulk uploads and different bundles the designers had been working on, and the consultants were engaged in assessing what scope we required. In 2019, there was a spend of €568,346 in total. Capital is €139,000 or €140,000 of that, and there are consumables. At that stage, the in-house developers moved in on the process, so there was a bigger consumable spend at that stage.

A reassessment was done in October 2020, looking at the spend to date. With all the different changes that were required as the years passed and the needs changed, we had a six-year spend which was coming out at €3.4 million. We had estimated spends at that point, looking at 2020 and 2021, and looking at the final project, which would include the website which went live this year, of-----

Does Ms Killian have a separate cost for the website?

Ms Anne Killian

I am looking at the website costs and I do not have a breakdown as such. I have a figure of about €57,000 for a certain amount of website development in 2020. If the Deputy will bear with me, I may have to come back to him on the actual website cost.

Can Ms Killian make a direct submission on the new website now?

Ms Anne Killian

There is currently a pilot system for strategic housing observations which went live.

Yes, but for third party appeals to normal planning applications, can people make a-----

Mr. Dave Walsh

No. As things stand, that is something we are prioritising over the next three to four months in terms of expanding the online facility that is there for SHDs, strategic infrastructure and normal planning applications. It will be there by the end of the summer, hopefully.

I thank the witnesses for all of that. In terms of that cost, a phenomenal amount of money has been spent. I shudder to think how much money was spent prior to 2014. Obviously, either catch-up was being played by the organisation and there was a lack of spend over time, or there was a complete revamp. From the end-user perspective of the website, particularly as I mentioned SHDs, from 2017 on there was very little improvement, if any, in the website's public interface. I am not saying that the staff have not been helpful to the public, and they have. However, from a complete project point of view, when so many applications were coming the way of An Bord Pleanála through the SHD process, and the strategic infrastructure as well, I question why it is only now, in 2021, that the website has been updated, given that, ironically, the SHDs are going to be phased out at the end of 2021.

Mr. Walsh might forward on those costs please after today's session.

Deputy Devlin should be brief.

How am I doing on time?

I call on Mr. Walsh to respond.

Mr. Dave Walsh

I apologise. I am happy to send on those costs to the Deputy. SHDs are only one element of it. The priority has always been to ensure that the system is operating and stable. Once we have the new website, we will hopefully be able to expand the services to the public to include online submissions in due course.

I look forward to getting the information.

I thank the witnesses from An Bord Pleanála for coming today. I want to look a bit ahead and to focus on An Bord Pleanála's work plan, its staffing arrangements to date and how it coped with Covid. Following Covid, one of the big developments is new capital investment in the country, especially with the increased capital projects in the national development plan, NDP, for example. Last night the Dáil voted through the national marine planning framework, which involves substantial capital development and infrastructural development that is needed post Covid to drive the State forward. An Bord Pleanála will play a big part in that. What has been its experience so far with staffing and resources? How can we have confidence that it will be equipped to deal with these projects efficiently? If Mr. Walsh does not mind my asking, where does he see difficulties?

Mr. Dave Walsh

Not at all. It is very timely in the context of the marine Bill moving through the Oireachtas. We have obviously adapted our systems and capacity to ensure that we have the right skill set, as well as the numbers to process efficiently any applications or appeals that come to us. As I indicated, the Department and the Minister have been very supportive in ensuring that we have received approval for the resources, both financial and staffing, in recent years.

In our submission we outlined that we have a workforce plan currently before the Department for consideration. As part of that, we acknowledge and recognise the challenge that the board and the wider public system face in terms of ensuring that any infrastructure projects that are critical to economic recovery and delivery of the national development plan can be expedited and prioritised. Marine is a brand new function, so what we are proposing as part of our workforce plan is to create a marine and climate unit to deal with renewables and climate in order to have the expertise to draw on, both internally within the organisation and, where we need particular expertise on hydrological issues or fisheries expertise, that we have panels of people on which to draw. This will be to ensure that when we receive very complex applications from developers and from the State in some cases, we will have the skill set to analyse them and ensure that we can fulfil all of our requirements under the directives and national law. The creation of a marine and climate unit will further embed that and allow us to have a team that interacts and with which we share information and ensure a consistent approach to solar, wind, offshore developments and marine-related activities. We have had an ecologist on our team since 2019 to further assist us in being able to dive deep into some of the environmental issues.

Separate to that, there are obviously other elements in the context of ensuring that we have the capacity for the administrative supports that we require, but we are gearing up well in advance of when the marine provisions come into effect because we know that there is a pent-up demand and applications will be coming in the door. We want to be ready and ahead of the game.

Public consultation is a big part of the new framework. One of the fears people have relates to the unknown in terms of what disruption may be caused to the seabed because it is different and we cannot see it. People do not have the information they might need. Is there a way of expediting some of the analysis on the areas that have been identified for potential development and getting ahead with the work so that when the public consultation happens, people are armed with the best possible information in making their contributions, rather than it being provided after their chance to contribute?

The Deputy has one minute remaining.

Mr. Dave Walsh

The Deputy is right. In parallel with any new marine approval functions, a marine spatial plan is being designed to designate particular areas. That is something I know the Department and the Government are working on. Even having clarity on the types of habitats and areas in the marine context would certainly help general understanding of the issues. As I indicated previously, these will have very detailed environmental, Natura-based explanations. It is a job for the board, as with any major application, to engage and consult effectively and to have material available. The earlier we can consult and have engagement, not only with the applicants but with the key stakeholders, whether that is the National Parks and Wildlife Service, the Marine Institute or the general public, the better the understanding when it comes to determining and assessing the various elements.

I thank Mr. Walsh. It is a big issue in my constituency, which is coastal. I know people want to have their say.

I do not know whether Deputies Hourigan or MacSharry have joined us but I will ask some questions myself. If members want to come in for a second round of questions, I will allow two minutes each. I ask them to raise their hand and I will take speakers in the order that the requests are made.

I have some questions for Mr. Walsh on the legal fees, which increased from €1.5 million in 2018 to a projected €8.2 million last year. I know it is early days yet in 2021 but in terms of the trend over the first three or four months of this year, does it appear as though the figure will increase this year or will it stabilise around €8.2 million?

Mr. Dave Walsh

It is very difficult to project the costs associated with cases. Looking at the number of judicial reviews that were lodged in 2020, which was 83, to date this year we are somewhere in the order of possibly 25 or 27 new judicial reviews but many of them have not reached the courts yet as cases. The case level looks like it could be similar to 2020 but in terms of trying to extrapolate the costs, half of the costs generally in any year are costs incurred by our own legal teams and by the barristers that support us. If cases do go to court at that level, we would probably see a similar level, but it depends on the timing of cases, because when the cases are heard is when most of the costs tend to be incurred.

Okay. In terms of the increase in legal fees, the Vote from the Exchequer, that is, the taxpayers' money that goes to An Bord Pleanála, is in the region of €18 million per year. We are getting close to 50% of that going in legal fees alone. As the cathaoirleach of An Bord Pleanála, is Mr. Walsh concerned about the sharp escalation in legal costs?

Mr. Dave Walsh

I am concerned, because obviously exposure both from legal costs and in terms of the number of cases is something that none of us, whether in the Department or in the board, want to see. As I stated earlier, we are doing everything we can to ensure that we make robust cases and, equally, we defend the cases that we feel are strong. Where issues are raised that might-----

Could I ask Mr. Walsh this question? The main driver for the increased legal fees appears to be the strategic housing developments. Mr. Walsh conceded that. An Bord Pleanála is losing nine out of ten of the cases that are appealed and its decisions are overturned. Would that not tell Mr. Walsh that there is some deficiency within the decision-making process, given the extra cost that puts on the budget of An Bord Pleanála?

Mr. Dave Walsh

In the context of whether it is a deficiency in the decision-making or not, we have made 280 decisions in total. I appreciate that of the 54 judicial reviews that have been taken, there are still 19 cases in the system at the moment that have not been determined.

It is a combination of robustness not only of the board's decision-making but ensuring that the legislative basis and what is expected and required by the courts is fully addressed. There are a number of cases where we have taken on board the judicial determination and most of those cases have come back to us for reconsideration, and we have been able to address those issues.

I put it to Mr. Walsh that prior to the strategic housing developments there was a system whereby the local authority members had a plan, they would take counsel from the local professional planners working on behalf of the county manager or the CEO of the council, as they are now called, and make a determination on it. There may have been flaws in it but the system existed. Individual planning applications that did not belong to the local authority itself were decided by the professional planners. It was approved or not approved and there was a right of appeal to the witnesses. Would this not show that that system was more efficient and, crucially, more democratic? Mr. Walsh clarified to Deputy Carthy that the final decisions can be made by two or three people. County development plans could have 40 or 45 councillors sitting around the table in a council chamber, making a decision about zoning. An Bord Pleanála has the right to stand that on its head and contravene the county development plan made by the democratically-elected councillors, acting on the advice of professional planners at local level and the executive of the council. Would that not tell Mr. Walsh that there is something seriously wrong with strategic housing development zones?

Mr. Dave Walsh

On the question of whether three or more board members are making decisions, with regard to planning applications, it is individual administrators within the planning authority who make the decisions. The development plan is the overall framework that is adopted. Similarly, the national planning framework and specific policies are adopted by Government and by Ministers. The Chair's core question is whether there is a deficit. The board's view is irrelevant because the board has been granted the functions through the Oireachtas and the Government to deliver on the SHD process. Whether we believe it is a good thing or not, it is a job that we have to get on with and do to the best of our ability.

I understand that but surely, if we are heading for 50% of the budget of An Bord Pleanála being spent defending court cases and if it is losing 90% of them regarding strategic housing developments, that would tell me that not only is there bad value for money but also that the system is seriously flawed. My final question is about SHDs too. I know the board does not monitor commencements, so if permission is granted for land in Kildare or wherever else, the board does not follow when it starts. Recently released figures show that only about 30% of those schemes have started. Anecdotally, is it An Bord Pleanála's view that on many of these sites where permission is granted for a developer to develop large numbers of houses, bypassing the local authority structure, the developer subsequently sits on the planning permission and now has a more valuable asset in hand and will simply flip that to the highest bidder when the time is right?

We know that house prices are accelerating at the moment. That is well known from the debate in the last couple of weeks both in these Houses and out in the wider public. Would An Bord Pleanála pick up that what is happening here in 70% of cases is that developments are not starting in a timely manner and developers are simply getting their land zoned and getting their permission by taking a shortcut straight to An Bord Pleanála, bypassing the democratically-elected council, and then having a more valuable asset? Would I be accurate in saying that?

Mr. Dave Walsh

We have no role and no view on that. Our role finishes when we grant or refuse permission. It is a matter for the relevant local authority, the Department or Minister to ensure that there is sufficient supply. Our job is to assess applications that come before us. What happens afterwards is not our role and I do not think we have a view to share on that issue.

I thank Mr. Walsh. It is something that this House will have to have a view on because it is a system that has shown itself to be deficient.

I want to go back to Mr. Egan about costs. He might be able to provide us with a note about the strategic housing developments that have been judicially reviewed where the case is decided. Where the board has been successful with a judicial review, will he tell us whether legal costs were recovered? If not, why not? Where the judicial review was successful for the other side, did the board pay the legal costs for the other side? Were costs awarded against it? Will Mr. Egan provide that note to us in respect of the strategic housing developments? What is the primary reason for judicial review in cases where the board won the case and costs were not awarded against it? I seek a note in that regard.

Local authorities often include in their development plans a phasing of developments because they are trying to match plans against schools, construction of bridges or roads and other infrastructure and services. That is why the local area plans are important and there is much engagement with them. Does the board include those phasing decisions that are included in the various local authorities in the same way that the local authorities would? It does not look like it does.

Mr. Dave Walsh

I confirm that we are happy to provide a note, and we will follow up with the committee in due course. On the issue of phasing, when one looks at the analysis and the assessment of any application or appeal that comes before the board, we look at everything from national policy to regional and sectoral policies, especially the county development plans and local area plans, LAPs. We look at the status and zoning requirements, the supporting infrastructure, the traffic implications and all of these issues. Whether the land is phased or there are certain other aspects, these are all considerations that the board's inspectors would consider in their assessment and that the board will consider in its final decision. The short answer is "Yes". These issues are all considered when the board looks at these matters.

A criticism is often that a planning authority would have "to have regard to" but that changed "to be in compliance with". Looking at those in my constituency, it does not appear that it has to be in compliance with these plans. The witnesses might consider them. For example, there have been three strategic housing developments in Clane, a small town, with 900 houses. One cannot be looking at matters such as schools and traffic if one is looking at the ratio and phasing developments. Using the evidence from my area, it does not look like the board is taking it on board.

Mr. Dave Walsh

We have to weigh up all the issues. It is not just the local context but also the national context. The Deputy is right that we have to have regard to all of these issues, but we also have to come to a determination, weighing up the conflicting policies that may be there on sectoral issues or indeed the issue with national policy, as well as the local context. It is a tricky issue but I confirm that it is a consideration.

I have a number of questions on data centres again. With regard to individual applications for data centres, does An Bord Pleanála take into account the cumulative environmental impacts of data centres in general or is it the case that it considers each data centre application individually? For how many data centres has An Bord Pleanála refused applications? I do not mean cases where some changes were made. How many have been refused permission?

My next question is on areas where An Bord Pleanála has seen multiple applications for data centres, whether on the same site or in the same locality or area. Has An Bord Pleanála approved or refused these multiple applications?

Mr. Dave Walsh

On the first issue, as part of any environmental impact assessment we make a cumulative assessment generally in the area. In the context of a national assessment as to what is a quantum, that is a policy matter more appropriately left to the Government or the relevant Minister to consider. Obviously the fact that data centres above 10,000 sq. m were included as strategic infrastructure, although this provision has not yet commenced, may well signal that smaller centres should more appropriately be dealt with at local level in the first instance. Certainly in the context of the impacts from environmental, traffic and human health perspectives, we look at the wider area but perhaps not at national level. Equally, in the context of environmental impact, we must look at energy consumption and climate change. These are all considerations that are very much to the fore.

I do not have figures to hand to answer the Deputy's second question but I am happy to give her a note on the number of data centres that the board has refused. Obviously they are all appeals. We can give the Deputy information on what the local authority did and whether the board overturned that decision. On the question of multiple applications in a particular area, we can probably give the Deputy details on the numbers. Again, there are certain areas where infrastructure is in place. Obviously there are zoning requirements. These are issues that are a consideration but just because there are already two there does not mean a third one or a whole raft of them necessarily has the capacity to go in or are appropriate in the wider planning context.

Very briefly.

My question on multiple centres was whether An Bord Pleanála has given approval for permission from multiple data centres in one area or have they been refused? With regard to taking on board the cumulative environmental impact at national level, Mr. Walsh said it is done at local level instead. It might be for Departments but from the point of view of An Bord Pleanála, we know excessive amounts of water and electricity are used. Look at the reality at present. We are taking water from the Shannon to Dublin because of shortages.

Briefly, Deputy.

Surely there is room to take on board the cumulative effect at a national level at this stage.

Mr. Dave Walsh

Again, the board has regard to any policy developed. At present, the general policy is fairly neutral in the context of allowing or permitting but the wider issues are with regard to climate and energy capacity. Again, they are issues we reflect on and consider in any application, whether individual or in a collective setting.

Could we get information on the questions asked with regard to applications refused and the other questions I posed furnished to the committee?

Mr. Dave Walsh

Yes.

I thank Mr. Walsh, who has been extremely informative and helpful in his answers. I want to go back to something Deputy Carthy raised. To be clear, is it that An Bord Pleanála does not hold minutes of meetings where the decision and direction on planning is given or is it that they are not published?

Mr. Dave Walsh

The issue is we hold a case summary of the meeting itself and a discussion without the detail of it but the board decision is the documentation that provides the rationale, explanation, reasons and considerations for taking it. The case minute is really only a record of the meeting itself with regard to who attended and the decision in summary but there is no exposition of the discussions and who said what.

With regard to doing cost-benefit analysis on litigation, does An Bord Pleanála look back over the minutes to see whether there is a series of judicial reviews where somebody was consenting or dissenting? Are they used?

Mr. Dave Walsh

Of course, and particularly where, as I have said, some of the judicial reviews against the board might be around the level, or lack, of information provided in the board's decision regarding its justification and reasons. These are things we review and amend, and we create new expanded pieces of work to address the issues that the court said were unclear.

Okay. I am sorry but I must interrupt due to time constraints.

Mr. Dave Walsh

That is all right.

I have a particular issue-----

Briefly.

I wrote to An Bord Pleanála last June. In his response Mr. Walsh said he was not aware of refusals quoting specific planning policy requirement, SPPR, 4. Is this correct?

Mr. Dave Walsh

If that is what I said in my letter at the time then it is.

I have four I could share.

The Deputy's time is up.

I have one more point that I must put because it is fundamentally important to the public. A circular has been issued by the Minister on clarification. What direction has Mr. Walsh given to his staff? Is it fair to say we will never see the phrase "minimum density" in an inspector's report again because of the circular?

Mr. Dave Walsh

I thank the Deputy for raising this. She is right. With the other 31 authorities, we received the circular letter last month from the Minister of State, Deputy Peter Burke. It clarifies, particularly regarding smaller towns and villages, the wording of the guidelines as they stand. With regard to our previous correspondence and the Deputy's engagement in Oireachtas debates, we acknowledge this is a useful clarification for us. We have circulated it to the board members and all of the inspectorate. These are matters that will be addressed and considered.

My discussion on the floor of the Dáil took place in early June 2020. That is when I wrote to Mr. Walsh. However, the circular was only issued of late. We have lost 11 months with regard to unlawful applications of density. We probably could have saved the State a fortune. I thank Mr. Walsh.

My question is on appeals from local authorities, of which there are quite a substantial number, and decisions made by An Bord Pleanála. How many of them have ended up with court applications for judicial review?

Mr. Dave Walsh

Is this with regard to applications made by the local authorities themselves?

No, I am speaking about appeals that came in as a result of decisions made by the local authority on which An Bord Pleanála then made a decision one way or the other, which subsequently ended up in judicial review.

Mr. Dave Walsh

We have some statistics, as outlined in our annual reports. In 2017, 50 legal cases were decided. In 2018, there were 41. The Deputy is wondering how many of these were appeals versus direct applications.

Yes. I have the number of appeals received from local authorities, which is more than 2,000. An Bord Pleanála then made a decision one way or the other. What I want to know is how many of these decisions ended up being judicially reviewed.

Mr. Dave Walsh

I do not know whether Mr. Egan has this particular breakdown. If not, we are happy to provide a note.

Mr. Walsh might give me a note on it. How many strategic housing cases that ended up in judicial review with decisions made by the High Court have been appealed to the Court of Appeal?

Mr. Dave Walsh

I can come back and give the Deputy a note on this to clarify it. Is this about Supreme Court challenges to High Court rulings?

No, if it was a High Court decision, the appeal would be made to the Court of Appeal. I want to know the number of judicial reviews in the High Court, on which decisions were made, that subsequently ended up in the Court of Appeal.

Mr. Dave Walsh

Okay.

Could I also get figures as to the numbers currently awaiting decisions from the High Court and the Court of Appeal?

Mr. Dave Walsh

There are currently 19 live cases before the courts. We can give the Deputy a breakdown as to how many are before the Court of Appeal.

Is it a requirement or is it the practice of members of the board to visit the sites specified in the applications they are considering?

Mr. Dave Walsh

The short answer is generally "No." The inspector will-----

I was referring only to the members of the board. To come back to my earlier points, I will deal with the example of a refusal by the local authority, but it could as easily be an approval. A type of development might be precluded by the county development plan, a plan whose development would have involved an enormous level of public consultation and a great amount of deliberation at local authority level based on the advice of officials, which may be adopted by members of the local authority. Let us take the case of a developer making a proposal to the local authority. This developer will probably engage in preplanning consultation and, after submitting the application, further information may be sought. Another process may go on for six months in which attempts are made to resolve issues. At the end of the day, the local authority planners may nonetheless decide that the development is inappropriate for a given location. An appeal may then be made to An Bord Pleanála and then the board's inspector, having visited and looked at all the evidence, may decide to recommend that the local authority's decision be upheld. There will then be a meeting with three representatives, two of whom - who will remain unnamed - may decide to overturn the recommendation of their own inspector and the local authority's decision, while providing minimal information as to how they came to that decision. It is quite possible that these representatives will never have set foot in the county, never mind having looked at the site in question. I do not aim to cast aspersions on any members of the board, current or past, but does Mr. Walsh see how there is the potential for corruption in such a system?

Mr. Dave Walsh

I completely reject any allegations of corruption. Sorry Deputy, I think it is unfair to make any claims like that.

I am not suggesting that there has been corruption. I am asking whether Mr. Walsh can see how there is a need for greater accountability and transparency with regard to these types of decision?

Mr. Dave Walsh

We have a very clear code of conduct under which board members must recuse themselves where they have local connections or are affected by other such considerations. That is on the public record. On the question as to whether two or three board members are making a decision, the board has 2,600 to 3,000 cases to decide. In 2019, we met more than 800 times as a board tribunal. There were multiple meetings going on. It is not practical for the board to go out to every single site. That is why we have a team of 60 inspectors who give us their views. We look not only at the inspector's report but at all of the information provided, including the local authority's observations, any commentary from State agencies, submissions from observers and so on. The Oireachtas has designed a system which allows us to use the collective expertise of the board to determine cases. We have a range of skills. The board consists of not only planners but architects, engineers, archaeologists and administrators. In other jurisdictions, such as in the North, as the Deputy will probably know, there is a single planning commissioner who makes decisions on individual cases.

I am just dealing with what we have, which is An Bord Pleanála. I want to ensure the public can have absolute confidence. If three members of the board sit to adjudicate on a case and two decide to overturn a previous recommendation while one does not, this creates the potential that had it been a different three members of the board, a different decision might have been reached. Again, that undermines the public's confidence that these decisions are being made wholly on the basis of good planning practice. Does Mr. Walsh believe there is scope to improve accountability and transparency with regard to the decisions of the board?

Mr. Dave Walsh

Our existence and our reputation are based on transparency and accountability. Indeed, I would challenge anybody to say that there is anything other than proper consideration given to all applications and appeals that come before us. Either I, as chairperson, or the chair of a given meeting can escalate any case considered to require a larger board. Where someone says that a given matter should go before a larger board, that can be facilitated. We will always push and press to improve and to ensure there is both transparency and accountability within the board.

May I ask for one sentence of clarity from Mr. Walsh because I did not catch exactly what he said? The Minister is of the view that there are no minimum densities under SPPR 4. Is Mr. Walsh of the same view? It is a yes-no question.

Mr. Dave Walsh

Generally, there are requirements but there is no absolute minimum.

There are no minimum densities under SPPR 4.

Mr. Dave Walsh

There no absolute minimum densities, yes.

I have a couple of brief questions for Mr. Walsh with regard to the board. There is a system and structure set up in law by the Houses of the Oireachtas. I understand that but I will just ask Mr. Walsh a couple of questions about it. There is a board of ten. The public ask us about this the whole time. As I understand it, the Minister appoints these members off the back of nominations from stakeholders. Who are those stakeholders? I believe the Construction Industry Federation and An Taisce appoint one each. Is that correct?

Mr. Dave Walsh

Again, this is more of a matter for the Department but there are four panels, including a professional panel, local panels------

Who do the nine current members represent?

Mr. Dave Walsh

These are actually specified in the Act and associated regulations. Each of the nominated bodies are listed there. It is a matter for the Minister and the Department to seek nominees when vacancies arise.

For the information of the meeting, is it correct that An Taisce nominates one member?

Mr. Dave Walsh

As far as I understand, each body is allowed to nominate two. Again, it is a matter for the Minister to assess any application. If I recall correctly, 28 organisations in total are represented across the four panels that have the opportunity to nominate if they so wish.

With regard to An Taisce, while it is not an issue for An Bord Pleanála directly, from the point of view of the public, how does An Taisce select its person? How does one become a member of the board of An Taisce?

Mr. Dave Walsh

I have no information on that. I have no idea of the internal workings of An Taisce.

I understand that. Is there an interview process for board members? Is one given an official appointment?

Mr. Dave Walsh

The legislation does not specify the process. It is again something the Department may be able to clarify. I know it is looking at a kind of a process. It is open to the Minister, or indeed to officials, to meet up with or to engage further with nominees in order to inform the Minister's decision. There is, however, no requirement for an interview. I believe the Department is looking at this issue as part of the ongoing reform and improvement of our system with regard to transparency.

I have a final question with regard to the board. While I appreciate these may, to a certain extent, be beyond Mr. Walsh's remit, I will ask some questions which are often put to us in order to get some information. I will ask about instances where a board member may have a conflict of interest. If a local authority is making a decision on zoning, a member of that authority may be related or otherwise connected to someone who owns a piece of the land involved or he or she may own it himself of herself. Such members must absent themselves from the meeting and declare their interests. It is the same in the Oireachtas. If we are speaking on a matter in which we have a vested interest, in the interest of transparency we must publicly stand up in the Chamber and declare that interest before we speak or we must absent ourselves from the Chamber.

How does that work internally in An Bord Pleanála in terms of board decisions and meetings?

Mr. Dave Walsh

Mr. Egan will comment as he looks after the code. Briefly, there are recordings of areas where members of the board, either for individual cases or perhaps general themes around firms for whom they might have worked and so on, very clearly are excluded from those cases. Sometimes an appeal might come in but one might not even be aware of it if one is not actually on the board. Mr. Egan will give a potted summary of how the board works.

Mr. Gerard Egan

There is a section in the Planning and Development Act that deals with the matter. Section 148 provides for situations where there might be a conflict of interest in an individual case that becomes apparent to any employee of the board or a board member. To look out for that is codified in section 148. Our own code of conduct provides procedures whereby when that arises, the employee or board member would, when he or she becomes aware that there is a conflict of interest, absent himself or herself if he or she is a board member from any meeting dealing with that case. In the case of an employee, he or she would have nothing to do with the case.

Let us say a conflict of interest becomes apparent. Is that recorded in a document somewhere?

Mr. Gerard Egan

It would, yes. It would be in a document that is held by the secretary of the board.

That concludes questions. I thank Mr. Dave Walsh, chairperson, Mr. Gerard Egan and Ms Anne Killian for answering a lot of wide-ranging questions. I thank them for providing information on a wide range of subjects. I also thank the Comptroller and Auditor General and his staff for attending and, as always, for assisting the committee in our work today.

Is it agreed that the clerk to the committee will be requested to seek follow-up information and carry out any agreed actions arising from the meeting? Agreed. Is it also agreed that we will note and publish the opening statements, and briefings, provided for today's meeting? Agreed. The Committee of Public Accounts is adjourned until 9.30 a.m. on Tuesday, 18 May, when the committee will meet in private session.

The witnesses withdrew.
The committee adjourned at 11.32 a.m. until 9.30 a.m. on Thursday, 20 May 2021.
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